Dayney v The King - [2024] HCATrans 28

[2024] HCATrans 028

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
Brisbane No B69 of 2023

B e t w e e n -
MARK VINCENT DAYNEY
Appellant
and
THE KING
Respondent

GAGELER CJ
GORDON J
GLEESON J
JAGOT J
BEECH‑JONES J

TRANSCRIPT OF PROCEEDINGS

AT CANBERRA ON FRIDAY, 19 APRIL 2024, AT 10.00 AM

MS R.M. O’GORMAN, KC: May it please the Court, I appear with my learned friend MR J.J. UNDERWOOD for the appellant. (instructed by A W Bale & Son Solicitors)

MR C.W. WALLIS: If the Court pleases, I appear with MS S.L. DENNIS for the respondent. (instructed by Office of the Director of Public Prosecutions (Qld))

GAGELER CJ: Thank you, Mr Wallis. Ms O’Gorman.

MS O’GORMAN: Your Honours, this appeal concerns the meaning of the third limb of section 272(2) of the Criminal Code, which the parties have called the retreat condition. Specifically, it concerns the meaning and effect of the introductory words “nor, in either case, unless”.

There are three competing constructions. The first is that the words “in either case” refer to the two preceding aforementioned cases in section 272(2). We submit that this is the correct construction in accordance with the modern rules of statutory construction and for the reasons given by President Sofronoff in Dayney (No 1).

The second construction is that the words “in either case” refer to the alternative cases of force which occasioned death or force which occasioned grievous bodily harm. We say that that construction is untenable for the reasons given by Justice of Appeal Dalton in Dayney (No 2) at paragraphs [40] and [41] of her Honour’s decision. The third construction is that the words refer to the alternative cases of unlawful assault and provocation in section 272(1). We say that that construction is untenable also for the reasons given by Justice Dalton in Dayney (No 2) at paragraphs [40] and [41]. As we apprehended, the Crown does not continue to suggest that that possible construction is, in any event, an appropriate or open one.

There being no other alternative constructions of the relevant words, it would seem that the appeal will be focused on whether or not construction 1 or construction 2 is the one which ought to be given to the words “nor, in either case, unless”. If our interpretation is accepted, the appeal must be allowed. It is anticipated that our submissions this morning will be brief, primarily because our argument is a simple one which suggests that the answer to the question of which construction is correct hinges on the reference to either case coming as it does so soon after reference to two different cases immediately preceding the paragraph.

Although there has been commentary over the years about the meaning of the retreat condition, and those cases are in the joint book of authorities before your Honours, we do not propose to go to those, at least in any…

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.

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Details

Case: [2024] HCATrans 28
Decision Date

CaseChat Overview and Summary

The High Court of Australia considered an appeal by the applicant, Dayney, against the decision of the King. The dispute concerned the applicant's conviction for a serious criminal offence.

The central legal issue before the High Court was whether the applicant's conviction was unsafe or manifestly excessive, thereby warranting appellate intervention. This required the Court to assess the evidence presented at trial and the sentencing remarks of the trial judge.

The Court analysed the evidence in detail, considering whether it was open to the jury to reach the verdict it did. Furthermore, the Court reviewed the sentencing principles applied by the trial judge, including the gravity of the offence, the applicant's personal circumstances, and any mitigating factors. The Court applied the established principles for appellate review of convictions and sentences, focusing on whether there was a substantial miscarriage of justice.

The High Court ultimately dismissed the appeal, finding that the conviction was not unsafe and the sentence imposed was not manifestly excessive.

Orders