Penny v The Queen - [1988] HCATrans 259

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IN TEE HIGH COURT OF AUSTRALIA

Office of the Registry

Perth No Pl2 of 1988
B e t w e e n -
RUSSELL GRAHAM PENNY

Applicanc

and
THE QUEEN

Respondenc

Application for special
leave to appeal

MASON CJ
WILSON J
DEANE J
TOOHEY J

GAUDRON J

Penny

TRANSCRIPT OF PROCEEDINGS

AT PERTH ON THURSDAY, 27 OCTOBER 1988, AT 9.53 AM:

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27/10 88

MR H.A. '.•:ALLJORK, QC: If it please the Court, I appear

with MR C. De~~IO, for the applicant in this
matter. (instructed by Mazza Mccallum & Robinson)

MR :-! . J. MC'RRAY, QC:

Your Honours, I appear with my learned

friend, MR K. BATES, for the respondent.
(instructed by the Crown Law Department).

MASON CJ:	Yes, Mr Wallwork.
MR WALLWORK:	If the Court pleases, I hand up six copies

of the applicant's submissions.

:C-,IASON CJ:	Thank you.
MR WALLWORK:	If it please the Court, this application

arises out of the trial of the applicant for the death of a young man which occurred early in the
morning of 1 January 1987 after New Year's
celebrations in the supreme court gardens just
up the road from here. When he was tried the
applicant was 19 years of age but when the offence

was committed he was 18 years of age. He was
found guilty of murder and sentenced to life
imprisonment.

If I may refer to the outline of the

applicant's submissions. It is submitted that the
learned trial judge's direction to the jury was
not in line with Your Honours' decision in
ZECEVIC, and that first 1.1 item there, His
Honour said even though you get the situation of the person being attacked in a way which is likely to cause him death or grievous bodily
harm, if he has the opportunity of running away,

withdrawing, he has got to take that. He does
not get the protection of the law relating to
self-defence if there was that option of retreating
from the conflict. At page 653 in ZECEVIC's case,
Your Honours Justice Wilson, Justice Toohey and
Justice Dawson said:

For this purpose -

when speaking of the self-defence - opposite line 25
on page 653, and you actually did refer to our
section of the Criminal Code in passing -
For this purpose it will be relevant to
consider the extent to which the accused
declined further conflict and quit the
use of force or retreated from it, these
being matters which may bear upon the nature
of the occasion and the use which the
accused made of it. Indeed, even in
circumstances in which the accused was not
the original aggressor, retreat in the face

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Penny

of a threat of violence before resort co
force may be relevant to the belief of c~e
accused or the reasonableness of the
grounds upon which the accused based his
belief. There is, however, no longer any
rule that…

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 Penny v The Queen

Details

AGLC: Penny v The Queen [1988] HCATrans 259
Case: [1988] HCATrans 259
Decision Date

CaseChat Overview and Summary

The applicant, Penny, sought special leave to appeal to the High Court of Australia against his conviction for murder. The conviction arose from the death of a young man following New Year's celebrations on 1 January 1987. At the time of the offence, Penny was 18 years old, and at the time of his trial, he was 19.

The central legal issue before the High Court was whether the learned trial judge's directions to the jury regarding self-defence were in accordance with the principles established in *Zecevic*. Specifically, the applicant argued that the trial judge erred by instructing the jury that self-defence was not available if the accused had an opportunity to retreat or withdraw from the conflict. Further, the applicant contended that the trial judge misdirected the jury by stating that the right of self-defence only applies against the person mounting the attack and not in circumstances where there may be other dangers in the vicinity.

The applicant relied on *Zecevic* to argue that there is no longer a rule requiring an accused to retreat as far as possible before attempting to defend themselves. Instead, retreat is a circumstance to be considered alongside all others in determining whether the accused believed, on reasonable grounds, that their actions were necessary for self-defence. The applicant also submitted that the trial judge's direction that self-defence only applies against the direct attacker, and not in situations with other dangers present, was an incorrect limitation of the defence.

Orders