Criticism for top  judge Marilyn Warren in DPP row

Senior legal figures have rounded on former Victorian chief justice Marilyn Warren.

Victoria's Chief Justice, Marilyn Warren.

Senior legal figures have ­rounded on former Victorian chief justice Marilyn Warren for demanding that the state’s top prosecutor try to suspend a High Court appeal against a “manifestly inadequate’’ sentence, as the Turnbull government warns that the case has national ­implications.

Retired NSW Court of Appeal judge Anthony Whealy QC and senior Queensland barrister Anthony Morris QC criticised then chief justice Warren over her “very ­unusual’’ move to write to the Victorian Director of Public Prosecutions attacking the conduct of the High Court case.

The High Court on Wednesday ruled that a 3½-year jail sentence handed to a man who sexually abused his stepdaughter, resulting in her becoming pregnant at 13, was “anomalously low’’. The decision is ­expected to have implication for sentences for a wide range of ­offences in Victoria including terrorism and sexual assault.

Attorney-General George Brandis told The Australian the High Court’s finding that Victoria had been too lenient in its sentencing of criminals had put lower courts on notice that punishments needed to meet community expectations.

“The High Court decision ­reminds us how important it is that criminal sentences reflect community standards,” Senator Brandis said.

In her letters, Ms Warren, who retired on October 1, ­demanded DPP John Champion SC ask the High Court to suspend its determination of the ­appeal against the stepfather’s sentence until issues between them had been resolved. She ­accused Chief Crown Prosecutor Gavin Silbert QC of making “false” statements to the High Court and demanded the DPP send further material to the jud-ges after arguments had closed.

Mr Whealy, who was a NSW Supreme Court judge for 12 years and a former deputy chair of the NSW Sentencing Council, said the former chief justice was “ill advised” to send the letters to the DPP raising concerns about the way the case had been argued.

Mr Whealy said he was not aware of another case in which a court had sent similar formal correspondence to a public prosecutor regarding the conduct of an appeal.

“You would have to say it’s very unusual; it’s not a good practice,” he said.

However, Mr Whealy said he did not believe the former chief justice had breached any ethical obligation by sending letters to the DPP, who has an independent statutory role to conduct public prosecutions, while a case is still under consideration.

“I don’t think she should have done it but I wouldn’t think it’s an ethical problem,” he said.

Mr Morris said the entire appellate system would be destroyed if submissions to the nation’s highest court were subject to control by the lower court whose decision is under appeal. He criticised the former chief justice for attempting to influence submissions that the DPP, “in the exercise of his independent judgment, considered appropriate to make’’.

He also criticised an implicit suggestion that the court might use its own disciplinary powers to punish Mr Champion and Mr Silbert if they failed to “kowtow” to the former chief justice’s demands. He said that unless advocates were free to make arguments in court, appeal courts would be denied the assistance they needed to understand both sides of an argument. “And if the court whose decision is under appeal is dictating the submissions which may and may not be made, the appellate court will inevitably be hamstrung in identifying and correcting errors by lower courts,” he said.

The Australian can reveal that the letters prompted Mr Silbert to question what would happen if, as happened this week, the appeal was sent back to the Court of Appeal for resentencing. In a letter to the DPP in June, defending his conduct in the High Court, Mr Silbert flagged the “very real possibility” the case would be sent back to the Victorian Court of Appeal for resentencing.

“Yet in the latest correspondence sent in this matter (from then-chief justice Warren), the appellant (or DPP) is berated for various submissions made in the appeal,” he wrote. “Thus, given that a successful Crown appeal involves the negation of various discretionary considerations, careful attention will now have to be given to the final resolution of this matter upon remitter.”

Swinburne University Law School director of research Mirko Bagaric said it was possible judges could be asked to recuse themselves from certain cases if there was a fear of apprehended bias, which depended on whether an ordinary and reasonable person might conclude the judge would not consider the matter impartially. In this case, that would depend on a close reading of the correspondence and given that Ms Warren had retired, the issue likely didn’t arise.

The DPP declined to comment when asked if it would request judges from outside the state to preside over the stepfather’s resentencing.

Victorian opposition legal affairs spokesman John Pesutto said the letters between two constitutionally independent bodies was “fairly unprecedented”. He said the Andrews government was “missing in action” at the time the High Court had delivered a judgment critical of the leniency of sentencing in Victoria. “The High Court’s decision is welcome, but does not fill the leadership vacuum the Andrews government has created by its unwillingness to introduce the stronger sentencing laws Victorians are crying out for,” Mr Pesutto said.

Additional reporting: Rebecca Urban