Peniamina v The Queen

Case [2020] HCA 47

HIGH COURT OF AUSTRALIA

BELL, GAGELER, KEANE, GORDON AND EDELMAN JJ

ARONA PENIAMINA  APPELLANT

AND

THE QUEEN  RESPONDENT

Peniamina v The Queen

[2020] HCA 47

Date of Hearing: 15 October 2020
Date of Judgment: 9 December 2020

B32/2020

ORDER

1.Appeal allowed.

2.Set aside the order of the Court of Appeal of the Supreme Court of Queensland made on 29 November 2019 and, in lieu thereof, order that the appeal to that Court be allowed and the appellant's conviction be set aside and a new trial be had.

On appeal from the Supreme Court of Queensland

Representation

M J Copley QC with K Prskalo for the appellant (instructed by Legal Aid Queensland)

T A Fuller QC with D Balic 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

Peniamina v The Queen

Criminal law – Defences – Provocation – Where appellant killed his wife in circumstances that left it open to find he was angered by belief she had been unfaithful and planned to leave him – Where appellant pleaded not guilty to murder on basis that killing resulted from loss of self-control caused by provocation by deceased – Where appellant contended at trial that state of loss of self-control excited by deceased's conduct in grabbing knife, threatening him with it and cutting his right palm – Where s 304(3) of Criminal Code (Qld) excluded defence of provocation (save in circumstances of most extreme and exceptional character) in case of unlawful killing of accused's domestic partner where sudden provocation "based on" anything done, or believed to have been done, by deceased to end or change nature of relationship or indicate in any way that relationship may, should or will end or change ("to change relationship") – Whether exclusion of defence in s 304(3) confined (save in circumstances of most extreme and exceptional character) to cases where conduct of deceased relied upon as causative of accused's loss of self‑control consists of thing done, or believed to have been done, by deceased to change relationship – Whether operation of s 304(3) to exclude defence question of law.

Words and phrases – "based on", "causation simpliciter", "causative potency", "caused by", "domestic killing", "domestic relationship", "elements of the defence", "loss of self-control", "nominated conduct", "partial defence", "provocation", "provocative conduct", "question of law", "sudden provocation", "to change the nature of the relationship", "true defence", "wider connection".

Criminal Code (Qld), s 304(1), (2), (3), (7).

  1. BELL, GAGELER AND GORDON JJ. This appeal concerns the partial defence of provocation, which operates to reduce what would otherwise be murder to manslaughter, under s 304 of the Criminal Code (Qld) ("the Code"). Section 304 was amended in 2011[1] ("the 2011 amendments"), relevantly, to exclude the defence (save in circumstances of a most extreme and exceptional character) in the case of the unlawful killing of the accused's domestic partner where the sudden…

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Peniamina v The Queen [2020] HCA 47
Case
[2020] HCA 47
Decision Date

CaseChat Overview and Summary

This case concerned an appeal to the High Court of Australia by a man convicted of murder. The appellant had killed his wife and sought to rely on the partial defence of provocation under s 304(1) of the *Criminal Code* (Qld). However, s 304(3) of the *Code* excludes this defence in cases of unlawful killing of a domestic partner where the sudden provocation is "based on" anything done, or believed to have been done, by the deceased to end or change the relationship. The appellant contended that the exclusion in s 304(3) was confined to situations where the conduct relied upon as provocation was itself the act that changed or ended the relationship.

The central legal issue before the High Court was the proper construction of s 304(3) of the *Criminal Code* (Qld). Specifically, the Court had to determine whether the exclusion of the provocation defence under s 304(3) was limited to cases where the conduct of the deceased, relied upon as causative of the accused's loss of self-control, consisted of an act aimed at changing or ending the relationship. The Court also considered whether the operation of s 304(3) was a question of law.

The High Court reasoned that the phrase "based on" in s 304(3) indicated a broader connection than merely the immediate trigger for the loss of self-control. The Court held that the exclusion in s 304(3) applied where the accused's loss of self-control was founded upon, or motivated by, the deceased's conduct related to ending or changing the relationship, even if the immediate provocative act was something else. To interpret s 304(3) as being confined only to the specific act of provocation relied upon by the accused would, the Court found, allow an accused to manipulate the defence by selecting a different "trigger" for their loss of control, thereby rendering the legislative exclusion ineffective. The Court concluded that the operation of s 304(3) was a question of law, not merely a matter of forensic choice for the accused.

The High Court allowed the appeal, setting aside the order of the Court of Appeal of the Supreme Court of Queensland. The Court ordered that the appeal to that Court be allowed, the appellant's conviction be set aside, and a new trial be had.

Orders

Orders of the court

1. Appeal allowed.

2. Set aside the order of the Court of Appeal of the Supreme Court of Queensland made on 29 November 2019 and, in lieu thereof, order that the appeal to that Court be allowed and the appellant's conviction be set aside and a new trial be had.

Background

Background to the litigation

Pursuant to a grant of special leave, the appellant now appeals to this Court. The sole question raised in the appeal is whether the Court of Appeal erred in holding that s 304(3) of the Code is not confined in its operation as a limitation on the availability of the partial defence in s 304(1) by reference to the particular act of provocation identified by the accused as having caused the loss of self‑control in which the killing occurred. For the reasons that follow, the Court of Appeal did not err in this regard. Accordingly, the appeal to this Court should be dismissed.The facts The appellant and the deceased were married; they had four young children together. The appellant worked as a scaffolder, and the deceased looked after the children. Sometime in late 2015 or early 2016, the deceased went with the children to New Zealand for a holiday for a few months. She returned from the trip in February 2016. After the deceased's return, the appellant began to suspect that she had been having an affair in New Zealand. Two weeks prior to the killing, the appellant told his aunt, Talaitupu Niumata, that the deceased and he had been having marriage problems and the deceased had been sleeping in a different room. On 29 March 2016, one of the children, who was ten years old at the time, heard the appellant and the deceased having an argument. This child heard the deceased demanding that the appellant return her phone. Later that day the appellant told his aunt in a telephone call that he had taken the deceased's phone, and that he saw messages from another man to the deceased. After the appellant pressed her to tell him anything she knew about an affair, his aunt told the appellant that, based on what she had seen on Facebook, she thought the deceased had met someone in New Zealand, but that she did not know who it was. The appellant's aunt had seen Facebook posts containing pictures of the deceased with a man in New Zealand, and saw that the man had described the deceased as his girlfriend. That evening the appellant went to see his cousin. He told his cousin about the Facebook posts his aunt had seen and showed her the Facebook profile of the man. He also said that the deceased had been hiding her phone from him and sleeping in a separate bedroom. He told her that he suspected that she was having an affair. The appellant's cousin described him in evidence as being frustrated and upset. He was worried about the deceased taking the children away from him. On 30 March 2016, the appellant's cousin called him to discuss her research concerning his rights in relation to the children. Her evidence was that the appellant was quite "content" and "happy" on this occasion. The appellant told her that he and the deceased worked things out and that everything seemed to be okay. On 31 March 2016, the appellant came home from work at around 4.30 pm, a few hours before the killing. He and the deceased went to Coles and bought food for dinner for the children. Shortly after the deceased and the appellant returned home, the appellant disappeared from the house, without his car. He came back angry and went to his room. Shortly after, the appellant snatched a second mobile phone from the deceased and left in his car.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

BELL, GAGELER AND GORDON JJ (dissent) KEANE AND EDELMAN JJ (dissent)
Having regard to the purpose of s 304(3), to accept the appellant's construction of s 304(3) would be to deprive it of any practical operation in any case where the accused is able to point to a plausible "trigger" for his or her loss of self-control that does not consist exclusively of the circumstances referred to in s 304(3). An accused could therefore dictate his or her case so that the limit imposed by s 304(3) on the availability of the partial defence of s 304(1) is avoided. Since a person's actions are almost always motivated by a multitude of factors, an accused person could almost always avoid the exclusion of the application of s 304(1) simply by relying on circumstances other than those described in s 304(3). Such an intention cannot be ascribed to the legislature.Conclusion Nothing in the structure of s 304, the text of s 304(3), or the context in which s 304(3) appears contemplates that only the conduct of the deceased which the accused says caused his or her loss of self‑control can be regarded as the conduct on which "the sudden provocation is based". On the contrary, those considerations indicate that the partial defence in s 304(1) is not available to an accused where on the evidence the accused's loss of self‑control was based on the circumstances stated in s 304(3). Hypothetical circumstances, akin to those in this case, illustrate how unlikely it is that Parliament could be taken to have intended that the operation of s 304(3) be a matter for the forensic choice of an accused, superintended by the judge, and removed from consideration by a jury. Suppose that in the course of a heated argument arising from accusations of infidelity by the accused against his partner, the partner picks up a knife to menace the accused and the accused responds by killing the partner. If the operation of s 304(3) were a matter for the forensic choice of the accused, he could frame a defence of provocation by relying only upon actions of the partner in picking up the weapon. And the jury would be left to consider provocation upon a fictional basis that required them to ignore the reality that the accused's actions were also based upon his belief about the infidelities of his partner. In this case, the appellant's admissions of anger at the deceased's perceived infidelity and withdrawal from their relationship are compelling evidence that the appellant's attack upon the deceased was not, in truth, a reaction provoked by her production of the knife, but rather the release of smouldering resentment at her perceived infidelity. That evidence would tend to negative the partial defence in s 304(1). It was certainly open to the jury to conclude that the provocative conduct identified by the appellant as causative of his loss of self‑control was not what, in fact, caused his loss of self‑control. But the same evidence of the appellant's anger at the deceased's perceived infidelity and her withdrawal from their relationship was relevant as well in that it was apt to engage the operation of s 304(3) to render s 304(1) immaterial.

Ratio Decidendi

Legal Principle Established

Established by:

The contest between the parties in this Court is thus a contest as to the proper construction of s 304(3) of the Code. That contest is to be resolved by reading s 304(3) in the context of the text and structure of s 304 as a whole, and in light of the purpose of s 304(3)[53].[53]Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 355 at 381 [69]; Federal Commissioner of Taxation v Consolidated Media Holdings Ltd (2012) 250 CLR 503 at 519 [39].Considerations of text: the meaning of "sudden provocation" It may be acknowledged that the phrase "sudden provocation" is an awkward expression. Provocation as a partial defence to murder is, exceptionally, one respect in which the Code is not to be given effect according to the ordinary and natural meaning of its words without first having regard to the common law[54]. Thus, in Kaporonovski v The Queen[55], McTiernan A‑CJ and Menzies J noted that s 304 of the Code does not express the conditions upon which provocation is given legal effect. As their Honours went on to observe[56], and as French CJ, Hayne, Crennan, Kiefel and Bell JJ accepted in Pollock v The Queen[57]:"[I]t is only by reference to the common law that one can determine the circumstances in which provocation operates to reduce a killing from murder to manslaughter under the provision."[54]cf Pickett v Western Australia (2020) 94 ALJR 629 at 635‑636 [22]‑[23]; 379 ALR 471 at 477.[55](1973) 133 CLR 209 at 219.[56]Kaporonovski v The Queen (1973) 133 CLR 209 at 219.[57](2010) 242 CLR 233 at 245 [46] (footnote omitted). It is well settled that in what is now s 304(1), as it appeared before s 304 was amended in 2011, the composite expression "sudden provocation" had, as it still does, a dual aspect being concerned both with the provoking conduct of the deceased[58] and with "the temporary loss of self‑control excited by the provocation"[59]. In Pollock v The Queen[60], this Court considered the meaning of the expression "sudden provocation" in what is now s 304(1), before the amendments that introduced s 304(2) and (3) were made. The Court (French CJ, Hayne, Crennan, Kiefel and Bell JJ) said[61]:"The use of the expression 'sudden provocation' was intended to import well‑established principles of the common law concerning the partial defence in the law of homicide. Thus, the provision is to be understood as requiring that the provocation both involve conduct of the deceased and have the capacity to provoke an ordinary person (to form the intention to kill or to do grievous bodily harm and to act in the way the accused acted), although neither requirement is stated in terms." [58]Pollock v The Queen (2010) 242 CLR 233 at 251 [65].[59]Pollock v The Queen (2010) 242 CLR 233 at 247 [52]; see also at 244‑245 [45], citing R v Pollock [2009] QCA 268 at [50].[60](2010) 242 CLR 233.[61]Pollock v The Queen (2010) 242 CLR 233 at 245-246 [47] (footnote omitted). In particular, the Court said the word "sudden" does not qualify the deceased's conduct, so there is no need for immediacy between the induced state of mind of the accused and the provocative conduct by the deceased. Their Honours said[62]:"The law requires that the killing occur while the accused is in a state of loss of self‑control that is caused by the provocative conduct, but this does not necessitate that provocation is excluded in the event that there is any interval between the provocative conduct and the accused's emotional response to it."[62]Pollock v The Queen (2010) 242 CLR 233 at 247 [54] (emphasis in original, footnote omitted).