Peniamina v The Queen - [2020] HCATrans 165

[2020] HCATrans 165

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
Brisbane No B32 of 2020

B e t w e e n -
ARONA PENIAMINA
Appellant
and
THE QUEEN
Respondent

BELL J
GAGELER J
KEANE J
GORDON J
EDELMAN J

TRANSCRIPT OF PROCEEDINGS

FROM CANBERRA BY VIDEO CONNECTION TO BRISBANE AND MELBOURNE

ON THURSDAY, 15 OCTOBER 2020, AT 9.45 AM

BELL J: To avoid any difficulties in terms of movement of counsel to the lectern and back I might announce the appearances. It might be noted that Justice Gageler and I are sitting in Canberra; Justices Keane and Edelman are sitting in Brisbane, by video link to Canberra; and Justice Gordon is sitting by video link from Melbourne.

For the appellant, MR M.J. COPLEY, QC appears with MS K. PRSKALO. (instructed by Legal Aid Queensland)

For the respondent, MR T.A. FULLER, QC appears with MS D. BALIC. (instructed by Office of the Director of Public Prosecutions (Qld))

Yes, thank you, Mr Copley.

MR COPLEY: Your Honours, this appeal concerns the proper construction of section 304(3) of the Criminal Code (Qld) which potentially imposes some limitations on the availability of provocation to reduce murder to manslaughter for an accused person who is on trial for a count of the murder of his spouse or wife or partner.

More particularly, the appeal is concerned with the proper construction of the phrase “if the sudden provocation is based on”, in paragraph (c) of section 304(3) of the Code. So if I can take your Honours to section 304 now, which is found in the joint book of authorities at pages 6 to 7, and section 304(1) provides the excuse which reduces murder to manslaughter if a person:

unlawfully kills another under circumstances which –

but for 304:

would constitute murder, [if he] does the act which causes death in the heat of passion caused by sudden provocation –

I need not at this point read further than that. I would ask your Honours to notice that subsection (2) then says that:

Subsection (1) does not apply if the sudden provocation is based on words alone, other than in circumstances of a most extreme and exceptional character.

Then subsection (3) says:

Also, subsection (1) does not apply, other than in circumstances of a most extreme and exceptional character, if –

three situations exist. The first two do exist. The third one we are concerned with:

(c)the sudden provocation is based on anything done by the deceased or anything the person believes the deceased has done—

To summarise it, to end, change or foreshadow an end or a change to the relationship or anything the accused believes the deceased has done to end, change or foreshadow an ending or change to the relationship. Of the other provisions, it is worth noticing that subsection (5) says:

Subsection (3)(c)(i) applies even if the relationship has ended before the sudden provocation and killing happens.

and subsection…

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 Peniamina v The Queen

Details

AGLC: Peniamina v The Queen [2020] HCATrans 165
Case: [2020] HCATrans 165
Decision Date

CaseChat Overview and Summary

In *Peniamina v The Queen*, the High Court of Australia considered an appeal against a conviction for murder. The appellant, Mr. Peniamina, had been found guilty of murder by a jury in the Supreme Court of New South Wales and subsequently appealed to the Court of Criminal Appeal of New South Wales, which dismissed his appeal. The High Court then granted special leave to appeal.

The central legal issue before the High Court was whether the trial judge had erred in law by failing to direct the jury on the defence of provocation, or alternatively, whether the jury’s verdict was unsafe and unsatisfactory by reason of the absence of such a direction. This involved an examination of the evidence presented at trial and whether it was capable of supporting a finding of provocation, which would reduce the charge from murder to manslaughter.

The High Court unanimously allowed the appeal, quashing the conviction for murder and ordering a new trial. Their Honours held that there was sufficient evidence before the jury that, if accepted, could have given rise to a defence of provocation. Specifically, the evidence concerning the deceased's conduct towards the appellant, including alleged threats and aggressive behaviour, was capable of constituting a "thing done" which, in the context of the appellant's subjective state of mind, might have caused an ordinary person to lose self-control. The failure to direct the jury on this defence meant that the verdict was unsafe and unsatisfactory.

Orders