R v DCQ

In this matter the Court of Appeal espoused principles to be applied where new evidence is sought to be adduced on an application for leave to appeal against sentence.

Bowskill CJ, Bond JA, and Callaghan J

8 August 2025

The applicant pleaded guilty and was sentenced to 10 years’ imprisonment for serious violent and sexual offences against his former partner, with the sentencing judge making an automatic declaration of a serious violent offence. [1]. Psychiatric evidence was not led at first instance. Post-sentence, the applicant attended upon a psychologist and a psychiatrist, and he sought to adduce that new evidence, [3], contending that had it been considered by the court prior to the sentence, it may have shed more light upon “what was an accurate understanding of the applicant’s mental health condition at [the] time of sentence”. [38].

In terms of whether it was appropriate to grant leave to adduce the new evidence, the Court helpfully outlined the relevant principles to be applied where new evidence is sought to be adduced on an application. It held, (Bowksill CJ; Bond JA and Callaghan J agreeing):

(1)Evidence will amount to fresh evidence where it could not have been obtained at the time of sentencing through reasonable diligence. The Court of Criminal Appeal retains the flexibility to receive fresh evidence where it is considered necessary to do so in order to avoid a miscarriage of justice: see Betts v The Queen (2016) 258 CLR 420, [10], [41];

(2)That in Queensland, s 671B(1)(d) Criminal Code 1899 provides the Court with discretion to receive further evidence. Section 671B(2) provides that “in no case shall any sentence be increased by reason of or in consideration of any evidence that was not given” at first instance; [42];

(3)That whilst the exercise of the discretion depends on whether it is “necessary or expedient in the interests of justice” to receive the evidence, it does not follow that it is unfettered. Rather, it needs to be demonstrated that, in the event the Court did not receive the new evidence, a miscarriage of justice would result. That can be shown where it is established that, if the new evidence were admitted, “some other [less severe] sentence … is warranted in law and should have been passed”: see R v Hughes [2004] 1 Qd R 541, [4] per McPherson JA; [43];

(4)That both the principle of finality in litigation, and s 668E(3) Criminal Code 1899, require that the assessment of error in an appeal against sentence be derived only from the facts which existed at the time of sentence: see R v Maniadis [1997] 1 Qd R 593, 597; R v Hughes [2004] 1 Qd R 541, [14]–[16] per McMurdo J (McPherson JA and Holmes J agreeing). As such, in order for new evidence to be admitted, it must “show what the state of affairs was at the time the sentence was imposed”, or tend to “prove a fact existing when the sentence was imposed”. If that is not the case then the facts would not be considered relevant to the question of what sentence “should have been passed”; [44];

(5)That only in circumstances where the Court on an appeal has determined that an error occurred for other reasons, is it able to receive evidence of the offender’s progress towards rehabilitation which has been undertaken since the sentence hearing: see Betts v The Queen (2016) 258 CLR 420, [11]; [45];

(6)That the power to receive new evidence is infrequently exercised: see R v Hughes [2004] 1 Qd R 541, [15]; [46];

(7)That there is a “high bar required to be met before new evidence may be permitted to be adduced on an application for leave to appeal against sentence”. It is not the case that any evidence, even if it tends to prove a fact which existed at the time of the sentence, or alternatively tends to show that another penalty might have been imposed, may be permitted to be adduced. Instead, it is imperative that the evidence is such that it leads the appellate court to conclude there will be a miscarriage of justice in the event the sentence is left intact. If the appellate court is not so convinced then the fresh evidence ought not be admitted. [53].

Here, the Court determined that there were no grounds for granting the applicant leave to appeal his sentence. [67]. In its view, even if the new evidence were adduced, it had not been demonstrated that an alternative sentence, was “warranted in law and should have been passed”. [66].

Disposition

The applications for leave to adduce further evidence were refused, as was the application for leave to appeal against sentence.

A Jarro