Peniamina v The Queen - [2020] HCATrans 75

[2020] HCATrans 075

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
Brisbane No B78 of 2019

B e t w e e n -
ARONA PENIAMINA
Applicant
and
THE QUEEN
Respondent
Application for special leave to appeal

BELL J
GAGELER J

TRANSCRIPT OF PROCEEDINGS

FROM SYDNEY BY VIDEO LINK TO BRISBANE

ON FRIDAY, 5 JUNE 2020, AT 11.30 AM

MR M.J. COPLEY, QC: If the Court pleases, I appear on behalf of the applicant. (instructed by Legal Aid Queensland)

MR T.A. FULLER, QC: May it please the Court, I appear with MS D. BALIC on behalf of the respondent. (instructed by Office of the Director of Public Prosecutions (Qld))

BELL J: Mr Copley, I think the Court might be assisted if we heard from Mr Fuller first, thank you.

MR COPLEY: Thank you, your Honour.

MR FULLER: Thank you, your Honours. Your Honours, the application is related to the partial defence that exists in the Criminal Code (Qld) which is unique to our jurisdiction. The genesis of it, as identified by Justice Applegarth, was in a review of provocation under the Law Reform Commission in 2008.

There were two parts to what came out of the review, with the amendments not occurring until 2011. There was a protection which was introduced under section 304(3)(b) with respect to killings done for the preservation in an abusive domestic relationship. Secondly, there was the limitation of the circumstances in which the partial defence of provocation reducing murder to manslaughter could occur.

Your Honours, if your Honours go to the provision itself – and the argument relates to the application of section 304(3). Your Honours, the piece of legislation appears in two places in the record book. For ease of reference, I will refer to annexure A to my outline which appears as the second‑last page of the application book. The limitation that was placed with respect to section 304(3) states that subsection (1), which is the substantive provision:

does not apply, other than in circumstances of a most extreme and exceptional character.

So, the limitation actually upgraded the level – or the nature that the provocation needed to be to be successful under 304(1) – and then set about some preconditions. The first two are fairly obvious – the requirement that there is a domestic relationship, which was not in dispute in this matter, and that the one person has killed the other. We then move to subsection (c), which is the point which is in contention in the application. The argument is around the term “is based on anything”:

the sudden provocation is based on anything done by the deceased or anything the person believes the deceased has done‑

His Honour Justice Applegarth made a review with respect to his interpretation in the court. It was adopted in part by Justice Morrison, and found that it had a broad meaning, and that it was broader than the Act itself, which is…

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 75
Case: [2020] HCATrans 75
Decision Date

CaseChat Overview and Summary

In *Peniamina v The Queen*, the Court of Appeal of the Supreme Court of New South Wales considered an appeal against a conviction for murder. The appellant, Mr. Peniamina, had been found guilty of murder following a trial in the Supreme Court of New South Wales.

The central legal issue before the Court of Appeal was whether the trial judge had erred in law by failing to direct the jury on the defence of provocation. Specifically, the court had to determine if there was sufficient evidence presented at trial to raise an issue of provocation, thereby necessitating a direction to the jury.

Bell and Gageler JJ, in their joint judgment, analysed the evidence presented at trial in relation to the appellant's state of mind and the circumstances surrounding the killing. They applied the principles established in *Stingel v The Queen* and *Osland v The Queen*, which outline the test for when a provocation defence must be left to the jury. The court found that while there was evidence of a dispute between the appellant and the deceased, there was no evidence capable of establishing that the appellant's actions were a response to a sudden or temporary loss of self-control induced by the deceased's conduct. Consequently, the court held that the trial judge was not obliged to direct the jury on provocation.

The appeal was dismissed.

Orders