Dayney v The King - [2024] HCA 22

HIGH COURT OF AUSTRALIA
GAGELER CJ,
GORDON, GLEESON, JAGOT AND BEECH‑JONES JJ
MARK VINCENT DAYNEY APPELLANT
AND
THE KING RESPONDENT
Dayney v The King
[2024] HCA 22
Date of Hearing: 19 April 2024
Date of Judgment: 12 June 2024
B69/2023
ORDER
Appeal dismissed.

On appeal from the Supreme Court of Queensland
Representation
R M O'Gorman KC with J J Underwood for the appellant (instructed by A W Bale & Son Solicitors)
C W Wallis with S L Dennis for the respondent (instructed by Office of the Director of Public Prosecutions (Qld))
Notice: This copy of the Court's Reasons for Judgment is subject to formal revision prior to publication in the Commonwealth Law Reports.

CATCHWORDS
Dayney v The King
Criminal law – Appeal against conviction – Self-defence against provoked assault – Where appellant convicted of murder – Where s 272(1) of Criminal Code (Qld) affords defence of self-defence against provoked assault – Where s 272(2) identifies cases to which defence does not apply – Where s 272(2) contains three clauses – Where third clause of s 272(2) states that accused will not obtain protection of s 272(1) unless they declined further conflict and quitted it or retreated from it as far as practicable before using force in self-defence – Whether condition in third clause of s 272(2) is an independent condition or modifies effect of first two clauses of s 272(2) – Whether trial judge erred in directing jury that appellant must satisfy retreat condition for defence of self-defence against provoked assault.
Words and phrases – "death or grievous bodily harm", "murder", "necessity", "nor, in either case", "reasonably necessary", "self-defence", "self-defence against provoked assault".
Criminal Code (Qld), s 272.
GAGELER CJ, GORDON, GLEESON, JAGOT AND BEECH-JONES JJ.
Introduction

Section 272 of the Criminal Code (Qld) ("the Code"), headed "Self‑defence against provoked assault", affords a defence to all criminal charges involving an assault, spanning common assault to murder. The section provides:
"(1)When a person has unlawfully assaulted another or has provoked an assault from another, and that other assaults the person with such violence as to cause reasonable apprehension of death or grievous bodily harm, and to induce the person to believe, on reasonable grounds, that it is necessary for the person's preservation from death or grievous bodily harm to use force in self‑defence, the person is not criminally responsible for using any such force as is reasonably necessary for such preservation, although such force may cause death or grievous bodily harm.
(2)This protection does not extend to a case in which the person using force which causes death or grievous bodily harm first begun the assault with intent to kill or to do grievous bodily harm to some person; nor to a case in which the person using force which causes death or grievous bodily harm endeavoured to kill or to do grievous bodily harm to some person before the necessity of so preserving himself or herself arose; nor, in either case, unless, before such necessity arose, the person using such…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Dayney v The King

Details

AGLC: Dayney v The King [2024] HCA 22
Case: [2024] HCA 22
Decision Date: 12 June 2024

CaseChat Overview and Summary

The High Court of Australia heard an appeal by the appellant against his conviction for murder. The central issue concerned the application of the defence of self-defence against provoked assault under s 272 of the *Criminal Code* (Qld).

The legal questions before the Court were whether the third clause of s 272(2) of the *Criminal Code* (Qld), which requires an accused to decline further conflict and retreat as far as practicable before using force in self-defence, imposed an independent condition for the defence or merely modified the effect of the first two clauses of s 272(2). The Court also considered whether the trial judge had erred in directing the jury that the appellant had to satisfy this retreat condition for the defence to be available.

The Court reasoned that the retreat requirement in the third clause of s 272(2) is confined to situations where retreat is practicable and does not necessarily mandate retreat in the face of a disproportionate lethal response. It further held that this clause, like the preceding clauses, operates to limit the defence only in extreme cases where the use of force occasions death or grievous bodily harm. However, unlike the first two clauses, the third clause focuses on whether the accused retreated before using such force, rather than on the accused's intention to kill or cause grievous bodily harm. The Court concluded that the trial judge's direction to the jury was erroneous in requiring the appellant to satisfy the retreat condition.

Despite the error in the trial judge's direction, the appeal was dismissed.

Orders

Orders of the court

Appeal dismissed.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

GAGELER CJ, GORDON, GLEESON, JAGOT AND BEECH-JONES JJ

As is clear, the retreat requirement is confined in two ways. It applies only to the extent that a retreat is practicable. On no view does the third clause necessarily require an accused to retreat in the face of a disproportionate lethal response. Further, consistent with the first two clauses in s 272(2), the clause operates only to limit the availability of the protection in s 272(1) in the most extreme of cases, where the accused's use of force occasions death or grievous bodily harm. However, unlike the first two clauses, the third clause is not concerned with whether an accused had or acquired an intention to kill or cause grievous bodily harm. Instead, it operates to deny the protection in s 272(1) in all cases where the accused uses force which causes death or grievous bodily harm, unless the accused first retreated from the conflict before engaging in such force.Conclusion The appeal must be dismissed.

Ratio Decidendi

Legal Principle Established

Established by: GAGELER CJ, GORDON, GLEESON, JAGOT AND BEECH-JONES JJ

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