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

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…

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 [2023] HCATrans 174
Case: [2023] HCATrans 174
Decision Date

CaseChat Overview and Summary

This proceeding concerns an application for special leave to appeal before the High Court of Australia, brought by the applicant, Mr Dayney, against the respondent, The King. The dispute centres on the interpretation of a proviso within a legislative provision, specifically section 272(2) of a Queensland statute, and whether a prior authoritative decision of the Court of Appeal of Queensland, referred to as *Dayney (No 1)*, was correctly applied by a subsequent decision of that same court, *Dayney (No 2)*.

The legal issue before the High Court was whether the Court of Appeal in *Dayney (No 2)* erred in its construction of section 272(2) of the relevant Queensland Act. Specifically, the court was required to determine whether the reasoning in *Dayney (No 2)*, which adopted a different pathway to statutory construction than *Dayney (No 1)*, correctly assessed whether the majority decision in *Dayney (No 1)* was plainly wrong. This involved considering the interpretation of the phrase "nor, in either case" within the proviso and its application to different forms of assault, particularly in relation to whether it was restricted to cases involving death or grievous bodily harm.

The respondent argued that the Court of Appeal in *Dayney (No 2)* was not required to re-interpret the section but rather to rigorously test the conclusion reached in *Dayney (No 1)*. The respondent contended that the reasoning in *Dayney (No 2)* demonstrated that the majority decision in *Dayney (No 1)* was not plainly wrong, and that the binding authority remained with *Dayney (No 1)*, which interpreted the proviso as applying only in cases where death or grievous bodily harm was occasioned. The respondent submitted that this interpretation was supported by policy considerations, as it linked the requirement for retreat to the gravity of the consequence.

The High Court granted special leave to appeal. The parties were directed to speak with the Deputy Registrars for the future management of the appeal, which was estimated to require half a day.

Orders