Dayney v The King

[2023] HCATrans 174

[2023] HCATrans 174

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Brisbane  No B29 of 2023

B e t w e e n -

MARK VINCENT DAYNEY

Applicant

and

THE KING

Respondent

Application for special leave to appeal

GORDON J
BEECH‑JONES J

TRANSCRIPT OF PROCEEDINGS

AT CANBERRA AND BY VIDEO CONNECTION

ON TUESDAY, 21 NOVEMBER 2023, AT 3.29 PM

Copyright in the High Court of Australia

GORDON J:   In accordance with the protocol for remote hearings, I will announce the appearances for the parties.

MS R.M. O’GORMAN, KC appears with MR J.J. UNDERWOOD for the applicant.  (instructed by AW Bale & Son Solicitors)

MR C.W. WALLIS appears for the respondent.  (instructed by Office of the Director of Public Prosecutions (Qld))

GORDON J:   In this matter, we are minded that leave might be granted, and we wondered, Mr Wallis, whether you wish to say anything in response to that proposal? 

MR WALLIS:   If I might, briefly.  Appreciating the observations of your Honour as to the position taken, can I just simply assert it in this way – and much of it has already been traversed in our written outline of argument – really, the respondent’s argument falls at paragraph 3.10 of our written submissions.  So far as what we have submitted there is really a true appreciation of what this Court is called upon to decide, it is by focusing not on the proper construction of the relevant section – the proviso, section 272(2) – but on an appreciation of the task that was being undertaken by the Court in Dayney (No 2), the primary judgment of her Honour Justice Dalton, and no error has been exposed in her Honour’s reasoning there. 

GORDON J:   Can I raise one issue?  In a sense of – whether that is right or wrong, what is interesting, I think, is that one has different paths of reasoning.  And so, it seems as though Justice Dalton, at least herself, found it difficult and then seems to adopt a different form of reasoning to that which appeared in Dayney (No 1).

MR WALLIS:   Well, we would submit that the separate pathway of reasoning is just redolent of a proper approach to statutory construction when a court is called upon to decide whether a previous authoritative decision is plainly wrong.  What her Honour’s pathway of reasoning exemplified was not how the section was to be properly interpreted but whether the interpretation that was favoured by the majority in Dayney (No 1) was correct.  Her Honour’s conclusion, therefore, was found at paragraph 4. 

So, whilst her Honour undertook a separate pathway to the assessment, our response to that is that her Honour was simply required to.  Her Honour was required, in the process of statutory construction, to rigorously test the conclusion that was arrived at.  For the reasons that her Honour advanced, there was an underlying ambiguity – that was not necessarily the conclusion of the majority in Dayney (No 1).  So, on her Honour’s perception that an ambiguity persisted, her Honour was then required to make the assessments by recourse to the legislative history and the common law, as her Honour there did. 

So, properly understood, our submission is that her Honour’s pathway of reasoning is not simply how the section is to be interpreted.  What her Honour’s pathway of reasoning exemplifies is that the conclusion of the majority in Dayney (No 1) was not plainly wrong or – her Honour put it so strongly to say that they were correct.

GORDON J:   What about the different interpretations?  It seems as though – at least in Dayney (No 2) – they took a different view about the “either case” kind of analysis.

MR WALLIS:   Yes.  Well, our submission to that is that “either case” had to be given some work, and that was what the majority undertook to do.  The language had to be considered.  While her Honour Justice Dalton, in Dayney (No 2), did not embark upon the same process of reasoning, really what her Honour was there considering was whether it was an independent proviso – independent operative provision – under 272(2).  So, her Honour did not need to, we submit, engage to that level of assessment.  Her Honour simply ‑ ‑ ‑

BEECH-JONES J:   Mr Wallis, can I just ask you this?  Is not the result now that trial judges in Queensland have competing decisions as to whether the last three words of 272(2) apply only in cases where death or grievous bodily harm is occasioned or whether it applies in other forms of assault? 

MR WALLIS:   Our submission is, no.  That is because the binding authority is Dayney (No 1).  That is the reasoning that must be applied, having regard to what is the ratio of that decision; that is not just the ultimate conclusion but a pathway of reasoning by the majority that to give effect to the words “nor, in either case”, there had to be some reference to a case.  That case was not the preceding two cases that were advanced in Dayney (No 1) and Dayney (No 2) or by President Sofronoff in Dayney (No 1), so the Court had to give work to those words. 

Her Honour’s conclusion, or her Honour’s – “failure” is the wrong word – but the fact that her Honour did not engage with those two cases is simply informed by the observation that her Honour arrived at, that the majority position was, perhaps, untenable, or there were some difficulties to be found in their reasoning, and that is what created the ambiguity that existed that led her Honour into the pathway.  So, that is an observation by her Honour that she perhaps did not, at face value, accept that as a postulation by the majority. 

BEECH-JONES J:   I am sorry; do I understand from your answer to say, that was the reasoning of Justice Dalton, but that was obiter? 

MR WALLIS:   Yes. 

BEECH-JONES J:   Right. So, the trial judges in Queensland have an earlier decision, a ratio, suggesting that the last three words are restricted to “death or grievous bodily harm”, and they have the obiter of the second decision suggesting it is not so restricted. 

MR WALLIS:   Yes, and the ratio of the second decision is simply that the conclusion of the Court, or the majority in Dayney (No 1), was correct.  So, our submission is that trial judges would follow the restriction that was identified in Dayney (No 1), and there are good policy reasons around that, in our respectful submission, why the “in either case” would be interpreted to translate only to cases in which death or grievous bodily harm were caused.  It fixes upon the result and consequence; the more grave the consequence, the greater degree a person must disengage before they can call in aid lethal force.  That is simply how one reconciles those two, in our respectful submission.

BEECH‑JONES J:   Then you have that and then you have the dissenting judgment of Justice Sofronoff, which is a third interpretation.

MR WALLIS:   It is.  We accept that.

BEECH‑JONES J:   Does that not suggest that there might be some cause for this Court to express – conclusively determine which of the three is right?

MR WALLIS:   The only response that I can mount to that is that the authoritative and binding authority – the authoritative statement is of the majority, and there are reasons, perhaps, to not follow President Sofronoff’s reasoning as found in the illumination of those features in Justice Dalton’s decision.  Reliance on Randle had complications to it, and so there is no need to resolve any divergence of opinion because the opinion is solid, in our submission. 

One, that the third proviso is a separate, independent condition that necessarily applies to the first two as well, but it applies more broadly. 
Two, that it only arises in cases of death or grievous bodily harm; that is, it is more restricted.  So, cases that might see less serious force used in response to a provoked assault would not require retreat and, again, the policy reasons, we submit, are sound, and so there is no reason for this Court to authoritatively decide that which has already, in our submission,

been authoritatively decided in this State and has been determined to not be plainly wrong.

There is perhaps not much more that I can advance, recognising the observations at the outset of the hearing, without traversing in any detail my written submissions.  So, unless I can answer any further questions to assist the Court, those are our submissions.

GORDON J:   Thank you, Mr Wallis.

MR WALLIS:   Thank you, your Honour.

GORDON J:   There will be a grant of leave in this matter.  Ms O’Gorman and Mr Wallis, is it a day, less than a day?

MR WALLIS:   Half a day, we think, your Honour.

GORDON J:   Do you agree, Ms O’Gorman?

MS O’GORMAN:   I do agree, your Honour.

GORDON J:   All right.  There will be a grant of leave in this matter, and I ask that you speak to the Deputy Registrars and the Registrars for the future management of the appeal.

Please adjourn the Court until 10.00 am on 5 December.

AT 3.39 PM THE MATTER WAS CONCLUDED