On Thursday 12 October, an article in The Australian claimed that the former chief justice had exchanged a number of letters with the Victorian Director of Public Prosecutions John Champion SC.

The article suggested that during her tenure as Chief Justice, Marilyn Warren’s letters criticised the ODPP for its conduct in a sentencing appeal to the High Court of Australia (HCA). The judge was also alleged to have “demanded” the Crown ask the HCA to suspend a determination of the appeal until the issues between the office and the Victorian Supreme Court could be resolved.

A unanimous decision to allow the sentencing appeal of Victorian man Charlie Dalgliesh (a pseudonym), who was found guilty of incest, was made by the HCA this week. The bench found that the three-and-a-half year prison sentence the man had been given for sexually abusing the 13-year-old daughter of his de-facto partner was “manifestly inadequate” and allowed the appeal on the basis that there was “an error of principle”. One of the victims in the case became pregnant as a result of the abuse.

During the appeal hearing before the HCA in June this year, Victorian Chief Crown Prosecutor Gavin Silbert QC told the court that Victoria’s approach to current sentencing practices were “inimical” and “not permissible”.

The Australian article went on to suggest that one week later, while the appeal was under consideration, Chief Justice Warren wrote a letter to the DPP criticising its conduct. It was alleged that the judge “demanded” Mr Champion send further material to the High Court judges after closing arguments had been made.

The article also suggested Chief Justice Warren accused the DPP of misleading the court because it had not previously questioned the 2011 Victorian appeal decision of Ashdown, that would have a bearing on how criminal penalties in Victoria required consistency with “current sentencing practices”.

The letters from CJ Warren are also reported to include complaints that the DPP had long supported the sentencing practice of Victoria’s Court of Appeal.

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“It is of course essential that the High Court not be misled. Unless what I have set out above misdescribes the positions you have previously taken, I would be grateful for your advice as to what steps you intend to take to correct the submissions advanced by the Chief Crown Prosecutor,” read an extract of one of the judge’s letters to the DPP.

The DPP contented that the doctrine of precedent made it difficult to ask the Victorian Court of Appeal to revisit its sentencing principles and so chose to challenge the sentence decision by appealing to the HCA.

Legal academic Professor Jeremy Gans from the University of Melbourne posted his own take on the emerging controversy in the Opinions on High blog run by Melbourne Law School.

Professor Gans explained in its reasons for allowing the appeal, the HCA said the determination of Dalgliesh’s sentence had been based on a current but wrong set of sentencing principles.

He went on to suggest that the timing of the leaked letters, to coincide with the HCA’s decision this week, was “surely partly designed to avoid a perception of influencing the High Court’s decision”.

“Yesterday, the High Court remitted the sentencing case to the Court of Appeal for fresh consideration of the DPP’s appeal. So, it is perhaps convenient that Warren CJ retired at the start of this month. Her successor, Anne Ferguson, was sworn in just as her predecessor’s letters were published,” Professor Gans said.

A spokesperson for the Victorian Supreme Court confirmed that it was not appropriate to comment in circumstances where a higher court had remitted the matter back to the Victorian Court of Appeal.