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

Copyright in the High Court of Australia

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 what the contention is by the applicant, that there were other factors that could be taken into account.  Now, relying ‑ ‑ ‑

BELL J:   Maybe if I can just raise this with you.  The approach of the dissenting judge, Justice McMurdo, proceeded on the footing that the expression “sudden provocation”, as it appears in section 304, is to be understood in the same sense in each of the three subparagraphs (1), (2), and (3), and accordingly, in the way “sudden provocation” was described in this Court’s judgment in Pollock v The Queen, which I note precedes the introduction of the amendments to which you refer.

That led his Honour to conclude that the relevant connection is between the conduct of the deceased and the accused’s loss of self‑control, as distinct from the view that by the introduction of the words “based on” the sudden provocation might, on the majority analysis, be taken to refer to a broader concept, to considerations that predate the act which, on the accused’s account, this being a defence that it is incumbent on the accused to establish on the balance of probabilities, was the act that caused the loss of self‑control.

MR FULLER:   I understand that, your Honour, and ‑ ‑ ‑

BELL J:   Mr Fuller, without debating the rightness or wrongness of it, it is a – there is a division of opinion in the court on a question of no small significance.  If one looks simply at the interests of the administration of justice in this case the only issue was provocation, and if Justice McMurdo’s analysis is the correct analysis, then in the result the jury were directed that there existed a hurdle to the one ground on which this case was fought, being a hurdle that on that analysis did not apply.

MR FULLER:   Your Honour’s statement is obviously correct that there was the division and the division with respect to this one matter, as identified by his Honour Justice McMurdo.  If the purpose of the application therefore is not to debate the correctness of Justice McMurdo’s position, and adopting the statement your Honour has just made, I have to accept that the proposition was, there is a division in the court, that it was the sole issue in effect with respect to this trial. 

I do take issue, though, your Honour, with respect to the suggestion – or the submission that it was a hurdle that he had to overcome.  The appellant bore the onus with respect to this provision and, therefore, in determining the nature of the act which was to be the sudden provocation was a factual matter for the determination of the jury. 

As is consistent with the authorities that I have cited in my outline with respect to the context in which a provocation occurs - and it is not just the act itself, but the broader circumstances around in which it occurs.  The submission, with respect to subsection (c), when looking at the wording that is there it does not state that the suffered provocation is based on anything done by the deceased or anything that the person believes the deceased has done.  It is the introduction of, “is based on”, which of course was what the debate was in the Court of Appeal below. 

BELL J:   Those words, “is based on”, appear also in subsection (2), and on one view it would be difficult to read subsection (2) as other than consistent with the analysis of Justice McMurdo. 

MR FULLER:   Indeed, your Honour.  The further complication then is the broadening by subsection (6), and it does not appear in this piece of the legislation but there has been since another amendment to section 304 where the phrase “based on” also appears with respect to an unwanted sexual advance.  That section is consistent with subsection (2), in stating that it is based upon an unwanted sexual advance, is the wording with respect to that. 

BELL J:   Yes. 

MR FULLER:   So in the circumstances ‑ ‑ ‑ 

BELL J:   When I said “hurdle”, what I had in mind was this.  The jury were taken through each of the elements of the offence of murder – all of which were conceded, the sole issue being provocation.  They were then directed as to the availability of that defence in accordance with subsection (1) and assuming that the jury reasoned upon balance that the act was done under circumstances bringing it within subsection (1), they were then told but nonetheless it was possible that that defence was excluded, having regard to what I will characterise as the broad interpretation of subsection (3). 

MR FULLER:   With respect, I do not believe it excluded.  It changed the level at which the jury had to make a finding as to the nature of the provocation.  So that to fall within subsection (1), they had to look at subsection (3) as to whether it changed the standard such that the provocation would have to be extreme and exceptional.

BELL J:   Yes, I understand, but were it not extreme and exceptional then the effect of subsection (3) was to exclude the operation of the one defence on which the case was fought.

MR FULLER:   I accept that, your Honour.  The issue then becomes whether the act of production of the knife which was said - and identified by the defence as the act, whether that was to be seen in context, and the context being the other acts that occurred or the interactions between Mr Peniamina and his partner prior to the production of the knife.

BELL J:   But, Mr Fuller, if the production of the knife did not cause the applicant to kill the deceased in the heat of passion caused by that sudden provocation, he did not get through the first of the provisions of section 304.

MR FULLER:   Correct.

BELL J:   So it is not to say that context is not relevant to the consideration of provocation but on one view – and this I understand accords with Justice McMurdo’s analysis – this was a case fought on the basis that the applicant lost his self‑control at the point the knife was produced and he sustained the injury to his hand.  Now, if he did not establish that on balance, that was the end of the matter. 

MR FULLER:   Indeed, your Honour, but the argument is that at that point in time if that is when he lost his self‑control, the issue was, was that at a time when there was a change in the nature of the relationship or something as to his belief to indicate there was a change in the nature of the relationship, and in the circumstances where there was a continuation of an altercation between them from when he initially struck her to following her into the kitchen, that his belief is set against that background.  Therefore, the context with respect to that, in our submission, is something that can be taken in to account in the determination under 3(c). 

BELL J:   Yes.

MR FULLER:   But I do not know that I can advance that any further, thank you, your Honours.

BELL J:   Thank you, Mr Fuller.  Yes, we do not need to hear from you, Mr Copley.  There will be a grant of special leave in this matter.  What is the estimated length?

MR COPLEY:   We agree half a day, your Honour.

BELL J:   Very well.  I would invite the parties to obtain the directions from the Registry in relation to the timetabling of submissions and the order of the Court is special leave is granted. 

AT 11.44 AM THE MATTER WAS CONCLUDED