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[2025] ACTCA 32
appellant. Leave was granted to amend the amended notice of appeal to include a miscarriage-of-justice ground; the appellant was directed to file the further amended notice within seven days; Ms Wallis’s...
The Court of Appeal allowed Mr Mastalerz’s sentence appeal because a relevant psychological report had not been put before the sentencing judge through misadventure. The Court did not require proof that the report would definitely have led to a different sentence. It was enough that the report had a realistic capacity to affect important sentencing assessments and could have resulted in a lesser or differently structured sentence. The original sentence was quashed, and the case was sent back to the sentencing judge for sentence.
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2,351 words · generated 06/10/2026
Jayden Mastalerz appealed sentences imposed by Mossop J on 28 August 2024 for a series of sexual offences and contraventions of family violence orders. The aggregate sentence was 10 years and one month’s imprisonment, with a non-parole period of six years and six months [1]. The Court of Appeal did not revisit the offence details, referring instead to the sentencing judge’s published decision, DPP v Mastalerz (No 2) [2024] ACTSC 267 [1].
1 cited instrument linked from this judgment.
The appeal’s central point was that a psychological report prepared for the sentence proceedings had not been tendered. The appellant said the omission occurred through “misadventure”. The Director of Public Prosecutions did not dispute that it was not the result of a deliberate forensic choice or negligence by the appellant’s representatives [2]. The Court accordingly treated the case as one in which relevant material had been omitted without fault attributable to the appellant.
The appeal grounds as initially framed alleged manifest excess and failure by the sentencing judge to take account of the report [3]. The DPP observed that the judge could not have erred by failing to consider material that was never before him, and that a manifest-excess ground had to be assessed against the material actually before the sentencing court [4]. The parties therefore accepted that the central issue was whether the sentencing process had miscarried because the report was not put before the judge [4]–[5]. The Court granted leave to amend the appeal notice accordingly [5], [39].
The report was prepared by Ms Edwige, a registered psychologist with extensive clinical and professional experience, including particular experience with the mental health of First Nations people [15]. It addressed the appellant’s background, psychosocial history, education, substance abuse, and medical and psychiatric history. It also drew on Bugmy Bar Book Project materials on matters including child abuse and neglect, child sexual abuse, out-of-home care, and homelessness [17]. The report considerably expanded the subjective material that had been before the sentencing judge [18].
At sentence, Mossop J had described the information about the appellant’s disrupted childhood as limited. His Honour referred to the reported absence of contact with the appellant’s father, foster care, school expulsion for behavioural issues, and family movement during childhood. The judge considered it likely that aspects of the appellant’s upbringing had predisposed him to psychological attributes manifested in violence and control, while also noting the need to protect the victim and others [18]. The Court of Appeal emphasised that these were qualified observations made against a limited evidential background [19]. The sentencing judge had also noted that there was “nothing that would indicate a clear path away from entrenched violent and abusive behaviour” when assessing rehabilitation prospects [19].
The Court started with the ACT statutory regime. Section 37N(3) of the Supreme Court Act 1933 (ACT) provides that the Court of Appeal may receive further evidence by oral examination, affidavit, audiovisual or audio link, or another way the Court can receive evidence [9]. The Court identified two features of the provision: it does not require leave before further evidence may be received, and the discretion is not expressly constrained [10]. The discretion must still be exercised judicially and consistently with its purpose. The Court cautioned that principles developed under differently worded legislation or evidentiary regimes must be applied carefully [10].
The Court considered earlier ACT decisions addressing further evidence, including Browne, Leighton, Bright, Jovanovic and Hillier [23], [26]–[29]. It also considered the High Court’s discussion in CDJ v VAJ of a statutory power in similar terms, including the importance of ensuring that proceedings do not miscarry while preserving the distinction between original and appellate jurisdiction [23]–[24]. The Court did not treat the “different result” language in those authorities as an absolute statutory precondition. It said that, even if such a common law principle existed, it could guide but not override the proper construction of s 37N [29].
A significant point was the distinction between asking whether evidence would certainly have changed the sentence and asking whether its absence deprived the appellant of the opportunity to have material considered that could have a real bearing on sentence. The Court referred to Lawavou v R [2025] NSWCCA 35, where the inquiry was framed in terms of whether omitted material had the capacity or potential to materially affect the sentence, rather than whether a different result could be established with certainty [30]. The Court adopted substantially the same reasoning for this appeal [33].
On the facts, the report addressed matters bearing on several sentencing assessments. The Court identified moral culpability, whether the appellant was a suitable vehicle for general deterrence, prospects of rehabilitation, proportionality, and sentence structure [33]. The report was particularly relevant because the sentencing judge had expressly noted the limited information available about the appellant’s childhood and the lack of material demonstrating a clear path away from entrenched abusive behaviour [18]–[19]. The report thus had the capacity to fill evidentiary gaps that the sentencing judge had identified.
The Court concluded that the report’s absence had a “realistic capacity to occasion a miscarriage of justice” [33]. It was satisfied that there could have been a material prospect of a lesser sentence or a differently structured sentence had the report been before the sentencing judge [34]. That conclusion did not determine what sentence should be imposed on remitter. The Court expressly said its remarks were not intended to “tie the hand” of the sentencing judge [34].
Before this decision, ACT authorities had stated that further evidence would “ordinarily” not be admitted unless it was fresh, and had referred to whether evidence would have produced, or was likely to produce, a different result [28]. The Court did not reject the relevance of those considerations. It qualified their operation: they were not an unqualified rule that s 37N evidence could be admitted only if the Court was satisfied that a different sentence would have resulted [29].
The decision’s statutory emphasis is important. Section 37N(3) gives the Court of Appeal a discretion to receive further evidence, and its text does not expressly impose the fresh-evidence or different-result conditions described in some earlier cases [9]–[10]. Common law principles and decisions under other regimes can inform the exercise of discretion, but the Court held they cannot displace the construction of the ACT provision [10], [29].
The decision also clarifies the relevant miscarriage inquiry in this sentence-appeal setting. It is not enough merely to point to additional material that is relevant in a general sense. The Court examined whether the omitted evidence could have a real bearing on the sentence and whether its absence deprived the appellant of the opportunity to have that material considered [30]–[34]. Nor must an appellant prove with certainty that the sentence would have changed. The Court treated realistic capacity to affect the sentencing decision as sufficient in the circumstances before it [33]–[34].
The judgment does not say that every omitted psychological report will justify receiving evidence or setting aside a sentence. Its reasoning depends on the report’s relevance, the circumstances of its omission, and its capacity to affect identifiable sentencing assessments. Nor does it settle the sentence that should follow. The order was to remit the matter to the original sentencing judge [35], [39].
At [10], the Court stated that s 37N “confers a discretion which is not constrained in terms”. In plain English, the statute does not itself spell out a closed checklist or make a particular category of further evidence automatically inadmissible. The Court must still act judicially and attend to the purpose of the power.
At [29], McCallum CJ rejected an “unqualified principle” that further evidence can only be admitted if the Court is satisfied it would have resulted in a different sentence. In plain English, the appellant did not have to establish that a lower sentence was certain or inevitable. Earlier authorities could guide the Court, but could not convert the statutory discretion into a more restrictive test.
At [33], the Court said the report’s absence had a “realistic capacity to occasion a miscarriage of justice”. It identified possible effects on moral culpability, general deterrence, rehabilitation, proportionality, and sentence structure. In plain English, the report mattered because it could have informed several distinct parts of the sentencing assessment, not merely because it added background information.
At [34], the Court said there could have been a “material prospect” of a lesser or differently structured sentence, while warning that its comments did not constrain the sentencing judge. In plain English, the appellate finding justified setting aside the existing sentence, but did not predetermine the outcome of the fresh sentencing process.
McWilliam J added at [36] that the Court does not confine itself to asking whether evidence would have produced a different result. His Honour described the circumstances as an irregularity through misadventure that prevented the appellant from putting his case effectively, with evidence that had a realistic capacity to bear on the sentencing decision.
The precedent is most directly engaged where an appeal concerns relevant sentencing material that was not before the sentencing judge, and the omission was not the result of an intentional forensic decision by the appellant. Here, the DPP accepted that the report’s absence did not result from a deliberate choice or negligence by the appellant’s representatives [2]. The judgment characterises the omission as misadventure [33], [36].
The material must have a meaningful relationship to sentencing issues. In this case, the report addressed the appellant’s background, psychosocial history, substance abuse, and health history [17]. It was relevant to matters the sentencing judge had discussed, including the consequences of the appellant’s upbringing and prospects of rehabilitation [18]–[19]. The Court identified several possible sentencing effects rather than relying on a bare assertion that the report was relevant [33].
The decision is also pertinent where the sentencing judge’s reasons reveal that material facts or assessments were uncertain because the information available was limited. The judge’s qualified language about the appellant’s upbringing and the absence of a clear path to rehabilitation demonstrated how the omitted report could have mattered [18]–[19]. The Court did not require proof that every part of the report would be accepted or that the sentence would definitely change. It did note that the DPP accepted the psychologist’s evidence as credible and that the Court would proceed on the basis that her opinions might be accepted [16].
The judgment does not establish that the same result follows whenever a report is omitted, or whenever an appellant later obtains additional evidence. The Court’s reasoning is tied to the statutory discretion, the circumstances of the omission, and the demonstrated capacity of the evidence to bear on sentencing assessments. The decision also concerned a sentence appeal, not a conviction appeal. The original conviction grounds had been withdrawn, and there was no conviction appeal before the Court [13].
The judgment is dated 7 August 2025, and the supplied source contains no decisions after it. It therefore does not establish how later courts have treated its reasoning.
The decision itself discusses earlier authorities. McCallum CJ considered Browne v The Queen, which had addressed s 37N and referred to CDJ v VAJ and R v Goodwin [23]–[26]. The Court also noted later ACT decisions that recited the principles from Browne, including Leighton and Bright [27]. It discussed Jovanovic and Hillier in relation to ordinary admission of fresh evidence and the different-result consideration [28]. The Court’s treatment was qualifying rather than wholesale rejection: those authorities remained relevant guides, but they did not impose an unqualified requirement that the evidence must be shown to have changed the sentence [29].
The Court referred to the High Court decisions Brawn v The King and MDP v The King as considering common-form criminal appeal provisions, while cautioning that the ACT provisions were not identical [8]. It also relied on the reasoning in Lawavou v R, which had treated the relevant inquiry as whether the further evidence could materially affect sentence, not whether a different sentence could be established with certainty [30]–[33]. The Court stated that it reached its conclusion for substantially the same reasons as Yehia J in Lawavou [33].
The judgment’s stated disposition is to allow the appeal, quash the sentence, and remit the matter for sentence [39]. The supplied text does not report any later appeal, confirmation, limitation, or overruling of this decision.
The Court left the sentencing outcome open. It expressly said that its conclusion about the report’s potential significance was not intended to constrain Mossop J on remitter [34]. The judgment therefore does not determine whether the report should ultimately lead to a lesser sentence, a different structure, or no change after the fresh sentencing assessment.
The Court did not provide a closed test for when omitted evidence will have sufficient capacity to constitute a miscarriage of justice. It rejected an absolute “different sentence” requirement, but its formulation remains contextual: the evidence must have a real bearing or realistic capacity to affect sentencing [29]–[34]. The supplied judgment does not define a universal threshold for that capacity across different kinds of evidence or sentencing issues.
The judgment also does not fully resolve the relationship between “fresh” and “new” evidence under s 37N. It observes that the distinction can be identified but that its significance may be less clear, and that evidence may be admitted regardless of characterisation where its absence resulted in a miscarriage of justice [21]. The extent to which freshness remains influential in cases that do not involve a demonstrated miscarriage is not decided here.
Finally, the Court did not determine how the discretion should operate where omission is deliberate, negligent, or attributable to a forensic decision. The DPP accepted that this case involved neither deliberate non-reliance nor negligence [2]. Those materially different circumstances were not before the Court. This is general legal information, not legal advice. Zoe can make mistakes, and a qualified Australian lawyer should check this analysis before anyone acts on it, relies on it, or uses any draft.
Source: the ACT Courts (www.courts.act.gov.au). Converted to plain text by ZoeLaw. Not the official version.
SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY COURT OF APPEAL
Case Title: Mastalerz v DPP Citation: [2025] ACTCA 32 Hearing Date: 7 August 2025 Decision Date: 7 August 2025 Before: McCallum CJ, McWilliam and Taylor JJ Decision: (1) Leave is granted to the appellant to amend the amended notice of appeal to include a ground of appeal contending miscarriage of justice. (2) The appellant is directed to file the further amended notice of appeal within 7 days. (3) The affidavit of Ms Wallis is received. (4) The appeal is allowed. (5) The sentence imposed by Mossop J on 28 August 2024 is quashed. (6) The Court remits the matter to Mossop J for sentence. Catchwords: APPEAL – SENTENCE APPEAL – Fresh and new evidence – consideration of s 37N Supreme Court Act – where material not before sentencing judge through no fault of the appellant – where material could have affected sentence imposed – whether court required to be satisfied that sentence would have been different with material considered Legislation Cited: Supreme Court Act 1933 (ACT) Part 2A, s 37N Cases Cited: Brawn v The King [2025] HCA 20 Bright v The Queen [2018] ACTCA 39 Browne v The Queen [2006] ACTCA 15 Bugmy v The Queen [2013] HCA 37; 249 CLR 571 CDJ v VAJ [1998] HCA 67; 197 CLR 172 DPP v Mastalerz (No 2) [2024] ACTSC 267 Hillier v The Queen [2008] ACTCA 3 Jovanovic v The Queen [2015] ACTCA 29 Lawavou v R [2025] NSWCCA 35 Leighton v The Queen [2017] ACTCA 55 MDP v The King [2025] HCA 24 R v Goodwin (1990) 51 A Crim R 328 Parties: Jayden Michael Mastalerz (Appellant) Director of Public Prosecutions (Respondent) Representation: Counsel J White SC (Appellant) K McCann (Respondent) Solicitors Legal Aid ACT (Appellant) ACT Director of Public Prosecutions (Respondent) File Number: ACTCA 30 of 2024 Decision Under Appeal: Court: ACT Supreme Court Before: Mossop J Date of Decision: 28 August 2024 Case Title: DPP v Mastalerz (No 2) Citation: [2024] ACTSC 267 Court File Number: SCC 146 of 2023 EX TEMPORE REASONS (REVISED) McCALLUM CJ:
Jayden Mastalerz appeals against the sentences imposed on him by Mossop J on 28 August 2024 for a series of sexual offences and contraventions of family violence orders. The details of the offences and the sentences imposed are set out in his Honour’s published decision (see DPP v Mastalerz (No 2) [2024] ACTSC 267) and need not be repeated here. The appellant was sentenced to an aggregate sentence of imprisonment for a period of 10 years and one month with a non-parole period of six years and six months.
The central complaint raised by the appeal is not one that asserts any error on the part of the sentencing judge. It is that, through no fault on the part of the appellant, the sentencing judge did not have before him a psychological report which had been prepared for the proceedings on sentence but which was not tendered. The appellant contends, and the Director of Public Prosecutions does not dispute, that the absence of that evidence was not the result of any deliberate forensic decision not to rely on it, or even due to negligence on the part of the appellant’s legal representatives, but instead due to what the appellant fairly terms “misadventure”.
As submitted by the Director of Public Prosecutions, the grounds of appeal specified in the amended notice of appeal do not properly reflect the issue raised by that central complaint. The grounds specified are that the sentence imposed is manifestly excessive and that the sentencing judge did not take into account a material consideration, namely the report of Ms Vanessa Edwige dated 10 August 2024.
Counsel for the Director noted that it could not be an error for the sentencing judge to fail to take into account a matter that was not before him. Furthermore, a ground alleging manifest excess must be determined on the material that was before the sentencing court which, necessarily, did not include Ms Edwige’s report. The real issue is whether the sentencing process miscarried as a result of the fact that the report was not put before the sentencing judge.
Mr White, Senior Counsel for the appellant, accepted that that is the appropriate framing of the ground of appeal. The appellant will have leave to amend the amended notice of appeal and will be directed to file a further amended notice within seven days.
Reframed in that way, the Director submitted that the appeal raises two issues: first, whether this Court should receive the further evidence relied upon by the appellant; and, secondly, whether this Court can be satisfied that the admission of the material would have “materially impacted the sentencing decision”. It will be necessary to return to the second issue.
Both parties submitted that, if the Court were so satisfied, the matter should be remitted to the sentencing judge, for a number of reasons. First, his Honour has greater familiarity with the evidence than this Court. Secondly, there will be further evidence that the appellant will seek to rely upon at any remitted proceeding. Of course, that will be a matter for the sentencing judge, but it indicates a reason why it is preferable to remit the proceedings. Thirdly, if this Court were to re-sentence the appellant, that course would deprive him of a layer of appeal if this Court were to err.
I turn to address the power of this Court to receive further evidence. This Court’s appellate jurisdiction is governed by Part 2A of the Supreme Court Act 1933 (ACT). It is important to note that those provisions, whilst echoing aspects of the “common form” criminal appeal provisions considered in the recent decisions of the High Court in Brawn v The King [2025] HCA 20 and MDP v The King [2025] HCA 24, do not exactly replicate those common form provisions.
Evidence on appeal in the Territory is governed by s 37N of the Supreme Court Act. The power to receive further evidence in an appeal is contained in s 37N(3), which provides: (3) The Court of Appeal may receive further evidence in any of the following ways: (a) by oral examination before the court or a judge; (b) on affidavit; (c) by audiovisual link or audio link; (d) any other way the court may receive evidence.
Two matters may be noted about the language of that section. First, it imposes no requirement for leave before further evidence can be received. Secondly, the section confers a discretion which is not constrained in terms. Of course, as with any judicial discretion, the discretion must be exercised judicially and with regard to the purpose for which it was conferred. However, the application of principles developed by reference to differently-worded statutes or evidentiary regimes must be approached with caution.
The Director of Public Prosecutions accepted that the Court ought provisionally receive the evidence in order to determine its admissibility.
I turn to consider the further evidence relied upon by the appellant. The evidence was presented in an affidavit of Eleanor Wallis explaining the circumstances in which Ms Edwige’s report was not tendered at the proceedings on sentence. In short, the appellant was represented by the Aboriginal Legal Service until he instructed that service that he wanted to traverse his plea. He was then referred to the office of Legal Aid and, from there, to the law firm Legal on London.
In the meantime, the Aboriginal Legal Service had commissioned the report from Ms Edwige. That was received on 14 August 2024. It is not clear from the material before this Court whether the appellant proceeded to traverse his plea but, in any event, the proceedings on sentence were heard and determined by Mossop J on 28 August 2024. The appellant then retained Legal Aid in respect of a proposed appeal against both conviction and sentence. The original notice of appeal included grounds challenging the conviction. However, those grounds were withdrawn and there is now no conviction appeal.
The office of Legal Aid ascertained that the Edwige report had not been tendered at the proceedings on sentence. It is apparent from Ms Wallis’ affidavit that the solicitor who commissioned the report learned of the sentence that had been imposed on the appellant by reading of it in the newspaper. Upon reading of the sentence, he became concerned to ensure that the report had been put before the sentencing judge, perhaps reflecting an apprehension that, in light of the sentences imposed, it may not have been.
Turning to the Edwige report, Ms Edwige is a registered psychologist with extensive clinical and professional experience. She has particular experience and expertise in the mental health of First Nations people. She has prepared numerous reports for this Court, including several reports of the kind described as “experience reports” (which are in the nature of the Gladue reports that are admissible in the courts of Canada) for this Court’s pilot Circle Sentencing Program.
The Director acknowledged that Ms Edwidge’s evidence is credible and that this Court would proceed to determine the appeal on the basis that her opinions might be accepted.
Ms Edgwige’s report in respect of the appellant provides a comprehensive analysis of his background, psychosocial history, education, history of substance abuse and medical and psychiatric history. She cites extensively from materials available from the Bugmy Bar Book Project, including its chapters on early exposure to alcohol and drugs, child abuse and neglect, child sexual abuse, out of home care and homelessness. The report is plainly relevant to sentencing considerations, including the application of the principles stated in Bugmy v The Queen [2013] HCA 37; 249 CLR 571, the High Court’s articulation of which was the inspiration for the Bugmy Bar Book Project.
Ms Edgwige’s report expands considerably upon the subjective case that was put before the sentencing judge. Importantly, his Honour noted the limited information before the Court on such matters. After expressing the view, as must undoubtedly be accepted, that this was “a very bad case of family violence offending”, his Honour observed at [78]: There is limited information before the Court about the disrupted nature of the offender’s childhood. That is because he provided only limited information to the author of the presentence report. It appears that his family life involved having no contact with his father; sufficient disruption or dysfunction to have him put into foster care; that his conduct at school was sufficient to have him expelled for his behavioural issues; and that his family moved about when he was young. It is likely that some aspects of his upbringing have predisposed him to psychological attributes manifested in his pattern of violence and control in relation to the victim of the offending. To the extent that the principle in Bugmy v The Queen [2013] HCA 37; 249 CLR 571 would apply to recognise the lifelong consequences of his upbringing, that same principle would tend to indicate the need for protection of the victim from such offending in the future and the protection of others with whom he might have an intimate relationship in the future.
It is significant, for present purposes, to note the qualified language of those remarks, reflecting the paucity of the information before the Court. For example, his Honour referred to matters that were “likely” and used the expressions “to the extent that” and “would tend to indicate”. The sentencing judge also placed some weight on the necessarily guarded conclusion he was able to reach concerning the appellant’s prospects of rehabilitation. There, again, the absence of evidence played a role. His Honour said there was “nothing that would indicate a clear path away from entrenched violent and abusive behaviour”: at [80].
In addition to the affidavit of Ms Wallace, the appeal books included an affidavit provided by the Director of Public Prosecutions, sworn by Mr Liam Taylor. That affidavit was not formally read at the hearing of the appeal this morning. However, on the assumption that it was intended to be relied upon, I observe that it included further material provided by Ms Edwige in response to specific questions posed to her in correspondence with the Director. That affidavit goes primarily to the assessment of whether the sentencing process miscarried in the absence of Ms Edwige’s evidence, an issue to which I now turn.
The Discretion to Receive Further Evidence
I have already noted that the discretion to receive further evidence is not expressly constrained. However, as noted by the Director, it has been accepted by this Court that the exercise of the discretion is informed by the common law distinction between evidence that is “fresh” and evidence that is “new”, the former being more readily admitted. The distinction is easily identified; its significance, at times, less so. Thus, as helpfully noted in the Director’s written submissions, in the context of an appeal against sentence, further evidence will be admitted regardless of its characterisation where the court is satisfied that its absence resulted in a miscarriage of justice. The authority cited by the Director for that proposition was Leighton v The Queen [2017] ACTCA 55 at [23] to [25].
The more difficult task is to articulate, or determine whether there should be, any test for determining whether the absence of the further evidence in the proceedings on sentence resulted in a miscarriage of justice. In addressing that question, it is important to bear in mind that this Court’s authority to receive the further evidence is governed by statute. Furthermore, as I have observed, the language of the statute that governs this task is unconstrained.
The principles concerning the admission of further evidence on appeal under s 37N were considered in the decision of this Court in Browne v The Queen [2006] ACTCA 15 at [8] to [14]. In that case, the Court made reference to the decision of the High Court in CDJ v VAJ [1998] HCA 67; 197 CLR 172 at [111], where a provision in similar terms to that under consideration in the present case was construed in the context of a family law proceeding. The material passage relied upon by this Court from the decision in CDJ was as follows: … Nevertheless, it is highly unlikely that Parliament, in conferring jurisdiction on the Full Court to hear appeals, intended that s 93A(2) [a statutory equivalent of s 37N] should be construed in a way that would have the practical effect of obliterating the distinction between original and appellate jurisdiction. Nor can the availability of further evidence relevant to the issues in the appeal be treated as equivalent to a ground of appeal, proof of which prima face entitles the appellant to a new trial. The power to admit the further evidence exists to serve the demands of justice. Ordinarily, where it is alleged that the admission of new evidence requires a new trial, justice will not be served unless the Full Court is satisfied that the further evidence would have produced a different result if it had been available at trial. Without that condition being satisfied, it could seldom, if ever, be in the interests of justice to deprive the respondent of the benefit of the orders made by the trial judge and put that person to the expense, inconvenience and worry of a new trial.
The Court of Appeal in Browne acknowledged the different statutory contexts in which the provision was being construed. In that context, it is appropriate to emphasise an earlier passage in the decision of the High Court in CDJ where the majority relevantly stated at [104] to [105]: In the exercise of the discretion conferred by a power such as s 93A(2), the critical factor is the subject matter of the proceedings with which the appeal is concerned. This is because the purpose of the power to admit further evidence is to ensure that the proceedings do not miscarry. … Moreover, even at common law, the grounds for admitting further evidence of matters occurring before judgment were not inflexible. The common law courts have always reserved to themselves an exceptional power to set aside a verdict on the ground of further evidence where the interests of justice require it.
McWILLIAM J:
I agree with the conclusion of the Chief Justice and the reasons for reaching such conclusion. Specifically, it is not the case that the Court confines itself in considering whether to exercise the discretion under s 37N to examining whether the further evidence would have produced a different result had it been available at the trial. There is no unqualified principle to that effect. In the present case, there was an irregularity – through misadventure – which prevented the appellant from putting his case effectively. That evidence was not before the Court and had a realistic capacity to bear upon the decision of the sentencing judge.
I agree that the Court should exercise its discretion to receive the further evidence and to intervene in the manner proposed by the Chief Justice. I join in the orders proposed by the Chief Justice.
TAYLOR J:
McCALLUM CJ:
I certify that the preceding thirty-nine [39] numbered paragraphs are a true copy of the Reasons for Judgment of the Court. Associate: Date:
Mastalerz
DPP [2025] ACTCA 32
Leave was granted to amend the amended notice of appeal to include a miscarriage-of-justice ground; the appellant was directed to file the further amended notice within seven days; Ms Wallis’s affidavit was received; the appeal was allowed; the sentence imposed on 28 August 2024 was quashed; and the matter was remitted to Mossop J for sentence: [39].
Finally, it may be observed that, in Browne, the Court of Appeal also considered the decision of the New South Wales Court of Criminal Appeal in R v Goodwin (1990) 51 A Crim R 328 in which Hunt J, with whom Grove J agreed, said with specific reference to sentencing appeals for the admission of fresh evidence: What must be established is: (1) That the additional material sought to be put before this Court is of such significance that the sentencing judge may have regarded it as having a real bearing upon his decision; (2) That, although its existence may have been known to the applicant, its significance was not realised by him at the time; and (3) That its existence was not made known to the applicant’s legal advisers at the time of those sentencing proceedings.
In Brown at 14, the Court of Appeal said of the decision in Goodwin: Although this was a decision before CDJ, it is not inconsistent with the principles expressed in that case, and in the case of sentencing appeals, offers a useful rule of thumb in assessing whether such evidence should be admitted. It is against this background that the application to admit additional evidence is to be judged.
Subsequent decisions of this Court have recited the principles set out in the decision in Brown (see Leighton at [23] to [24]), which in turn was cited in Bright v The Queen [2018] ACTCA 39 at [9]. In those authorities, the principles are appropriately framed in qualified terms.
The Court in Leighton cited the decision in Jovanovic v The Queen [2015] ACTCA 29 at [22] as authority for the proposition that the further evidence will “ordinarily” not be admitted unless it is fresh. That in turn was by reference to the decision of this Court in Hillier v The Queen [2008] ACTCA 3, where it was acknowledged at [119] that the power is remedial and that an important consideration is whether the further evidence “would have produced a different result had it been available at the trial or, at least, was likely to have produced a different result”.
I do not understand those authorities to state an unqualified principle that further evidence can be admitted under s 37N only where this Court is satisfied that the evidence would have resulted in the imposition of a different sentence. If there is a common law principle to that effect, which may be doubted, any such principle could only guide, not override, the proper construction of the statute.
That conclusion finds some support in the recent decision of the NSW Court of Criminal Appeal in Lawavou v R [2025] NSWCCA 35. The main judgment in that case was given by Yehia J, with whom Garling J and Cavanagh J agreed at [1] and [2] respectively. Her Honour said at [128] to [129]: In Shortland v R [2024] NSWCCA 174 the Court was concerned with the admission of additional evidence after sentence. Stern JA (Cavanagh and Sweeney JJ agreeing) stated that it was clear that sentence proceedings “may give rise” to a miscarriage of justice where material evidence was available and relevant to sentence, but the offender was deprived of the opportunity to have that material considered in mitigation. The Court concluded that had a psychological report of the nature of that which was tendered as additional evidence been before the sentencing court, there would have been a material prospect of the applicant receiving a lesser sentence: at [50]. The relevant enquiry to be made when determining whether to admit additional evidence (irrespective of whether it is “new” or “fresh” evidence) is a consideration of whether a miscarriage of justice has occurred in depriving the applicant of the opportunity to have material considered which could have a real bearing on the sentence. In considering that test, the Court is to consider whether the additional material had the capacity or potential to materially impact the sentence. It is not whether the Court can conclude with any certainty that the material would have made a material difference to the sentence.
It may also be noted that, in her decision at [134], Yehia J referred with approval to the decision in Goodwin, to which I have referred above. In Lawavou at [131], Yehia J concluded: The absence of relevant subjective material impacted on the sentencing judge’s capacity to assess moral culpability; to consider whether the appellant was a suitable vehicle for general deterrence; to properly assess the applicant’s prospects of rehabilitation; and to inform the question of whether there should be a finding of special circumstances. Had the new evidence been before the sentencing court, there could have been a material prospect of the applicant receiving a lesser sentence.
I note that the reference to special circumstances is a reference to the requirement in New South Wales to find special circumstances before departing from the ratio otherwise prescribed by the sentencing legislation in that state that the non-parole period must be three-quarters of the total sentence. The ratio is expressed differently, but that is its arithmetic effect.
For substantially the same reasons as expressed by Yehia J in Lawavou, I am satisfied that the sentencing process in the current case miscarried by reason of the fact that, through misadventure, Ms Edwige’s report was not tendered at the proceedings on sentence. In the terms accepted by the Director, I am satisfied that the absence of that evidence had a realistic capacity to occasion a miscarriage of justice, specifically, paraphrasing the language of Yehia J in Lawavou, its absence plainly had a capacity to affect the sentencing judge’s assessment of the appellant’s moral culpability; it was capable of being relevant to his Honour’s assessment as to whether the appellant was a suitable vehicle for general deterrence; one way or another, it was relevant to his Honour’s assessment of the appellant’s prospects of rehabilitation and it was capable of informing his Honour’s determination of a proportionate sentence, but also the structure of the sentence. I note in that context that, in the Territory, the sentencing court is not constrained by the prescriptive ratio contained in the NSW sentencing legislation.
In summary, I am satisfied that, had the report of Ms Edwige been before Mossop J, there could have been a material prospect of the appellant receiving a lesser sentence or at least a differently structured sentence. None of these remarks should be taken to tie the hand of the sentencing judge upon remitter, but only to articulate my satisfaction that Ms Edwige’s report was relevant and could have affected the sentence.
Accordingly, the orders I propose are that the appellant have leave to file a further amended notice of appeal, direct the appellant to file the further amended notice of appeal within seven days, that the affidavit of Ms Wallis be received, allow the appeal, quash the sentence imposed by Mossop J on 28 August 2024, and remit the proceedings to Mossop J to resentence the appellant.