R v Dayney

Case [2023] QCA 62

SUPREME COURT OF QUEENSLAND

CITATION:

R v Dayney [2023] QCA 62

PARTIES:

R
v
DAYNEY, Mark Vincent
(appellant)

FILE NO/S:

CA No 338 of 2021
SC No 882 of 2017

DIVISION:

Court of Appeal

PROCEEDING:

Appeal against Conviction

ORIGINATING COURT:

Supreme Court at Brisbane – Date of Conviction: 6 December 2021 (Bowskill SJA)

DELIVERED ON:

6 April 2023

DELIVERED AT:

Brisbane

HEARING DATE:

6 October 2022

JUDGES:

Mullins P and Dalton JA and Boddice J

ORDER:

The appeal be dismissed.

CATCHWORDS:

CRIMINAL LAW – APPEAL AND NEW TRIAL – MISCARRIAGE OF JUSTICE – PARTICULAR CIRCUMSTANCES AMOUNTING TO MISCARRIAGE – MISDIRECTION OR NON-DIRECTION – MISDIRECTION – where the appellant was convicted of murder at retrial – where the trial judge directed that s 272(2) described three independent circumstances in which the protection of s 272(1) of the Criminal Code (Qld) would be lost – whether a miscarriage of justice was occasioned by this direction

CRIMINAL LAW – APPEAL AND NEW TRIAL – MISCARRIAGE OF JUSTICE – PARTICULAR CIRCUMSTANCES AMOUNTING TO MISCARRIAGE – MISDIRECTION OR NON-DIRECTION – MISDIRECTION – where the trial judge directed the jury that the meaning of “before such necessity arose” in s 272(2) of the Criminal Code (Qld) was a reference to the time when the defendant was induced to believe, on reasonable grounds, that it was necessary for his or her preservation from death or grievous bodily harm to use force in self-defence – where a single protracted struggle occurred between the appellant and deceased, after the appellant formed the requisite belief – whether the proper focus is the time the necessity arose, not the time when the act causing death occurred

Criminal Code (Qld), s 271, s 272, s 273
Criminal Code Bill 1880 (UK), s 57
Crimes Act 1961 (NZ), s 48, s 49 (now repealed)

Aubrey v The Queen (2017) 260 CLR 305; [2017] HCA 18, cited
Beckwith v The Queen (1976) 135 CLR 569; [1976] HCA 55, considered
CTM v The Queen (2008) 236 CLR 440; [2008] HCA 25, considered
In Re Terrence Joseph Mellifont, Court of Criminal Appeal, unreported, cited
Lynch v Commissioner of Police[2022] QCA 166, cited
Mellifont v Attorney-General (Qld) (1991) 173 CLR 289; [1991] HCA 53, considered
R v Burnell [1966] Qd R 348, considered
R v Dayney[2020] QCA 264, considered
R v Howe (1958) 100 CLR 448; [1958] HCA 38, considered
R v Howe [1958] SASR 95, considered
R v Johnson [1964] Qd R 1, considered
R v Keith [1934] St R Qd 155, considered
R v Kerr [1976] 1 NZLR 335, considered
R v Martyr [1962] Qd R 398, considered
R v Muratovic [1967] Qd R 15, considered
R v Wilmot (2006) 165 A Crim R 14; [2006] QCA 91, considered
Randle v The Queen (1995) 15 WAR 26, considered
Stuart v The Queen (1974) 134 CLR 426; [1974] HCA 54, considered
SZTAL v Minister for Immigration…

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Details
AGLC
R v Dayney [2023] QCA 62
Case
[2023] QCA 62
Decision Date

CaseChat Overview and Summary

In the case of R v Dayney, the appellant was convicted of murder at a retrial and appealed against the conviction, arguing that the trial judge had misdirected the jury on the interpretation of s 272(2) of the Criminal Code (Qld). The central issue before the court was whether the trial judge's direction that s 272(2) described three independent circumstances in which the protection of s 272(1) would be lost constituted a misdirection that amounted to a miscarriage of justice. Additionally, the court had to determine if the trial judge's interpretation of the phrase "before such necessity arose" in s 272(2) was correct.

The court examined the statutory language and previous judicial commentary on the issue, noting the lack of clear authority on whether the underlined words in s 272(2) create a third factual circumstance outside the protection of s 272(1) or merely provide further description of the circumstances in which the first two cases operate. The court considered the historical context and the shift in the common law regarding the necessity of retreat before employing force in self-defence. The court concluded that the focus should be on the time the necessity arose rather than the time when the act causing death occurred. The court found no misdirection by the trial judge and dismissed the appeal.

The court's reasoning centred on the interpretation of the statutory language and the historical context of self-defence laws, ultimately concluding that the trial judge's direction was correct and did not amount to a misdirection or miscarriage of justice. The appeal was dismissed, and the conviction stood.

Orders

Orders of the court

The appeal be dismissed.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

There is no difficulty understanding that s 272(2) takes out of the protection afforded by s 272(1) a case in which the defendant first began the assault referred to in the initial words of s 272(1) (“unlawfully assaulted another”) with an intention to kill or do grievous bodily harm. Likewise, a case where the defendant endeavoured to kill or do grievous bodily harm before the necessity of preserving himself or herself arose. The issue in this case is whether or not the words which have been underlined in s 272(2) above create a third factual circumstance which is outside the protection of s 272(1), or whether those words only provide further description as to the circumstances in which the first two cases operate.Authority Prior to the 2020 Appeal Decision This issue has always been unsettled.[3] Before 2020 there was no binding authority on it.[3]Kenny describes the meaning of the provision as “unclear” in An Introduction to Criminal Law in Queensland and Western Australia – LexisNexis, 7th edition, [13.98]. O’Regan describes it as “obscure” in New Essays on the Australian Criminal Codes – R S O’Regan, Law Book Company, 1988, p 89. In R v Keith[4] Henchman J, in dissent, said:[4][1934] St R Qd 155.“… there was no evidence that the prisoner retreated, or attempted to retreat, before firing the shot, the answer appears to lie in a comparison of the language of s. 271 with that of s. 272. The latter provision (the case of a person who has first assaulted another, or has provoked an assault by another) requires the accused to establish not only his belief, on reasonable grounds, of danger to life or limb, but also that he first declined further conflict and quitted, or retreated from it as far as was practicable. Section 271 says nothing of retreating. Moreover, the common law allowed justification of a killing without any attempt to retreat, if the assault upon the accused was so fierce as not to allow him to yield a step without manifest danger to his life or of great bodily harm. See Russell on Crimes, Vol. I. (7th ed.), p. 810. I think, therefore, that it is not necessary for an accused person, defending under s. 271, to prove that he retreated as far as possible before killing.” – p 184. This passage formed part of the ratio of Henchman J’s decision, but the point did not matter to the majority judges in that case.[5][5]Webb J did make the comment, “Keith made no attempt to retreat, nor does he say or show that he could not have retreated. The implication from s. 272 may be – I do not decide this, however – that there is no need to prove a retreat to secure immunity under s. 271; …” – pp 179-180. Blair CJ expressly did not decide this point, p 168. In 1964, in R v Johnson[6] Stanley J discussed the High Court decision in R v Howe.[7] That 1958 case was a very significant one as to the common law of self‑defence. It established that the Crown bore the onus of excluding self-defence, which was contrary to the Queensland position at that time. It also marked a change in the common law as to retreat:[6][1964] Qd R 1, 14.[7](1958) 100 CLR 448.“The view of the Supreme Court appears also to be correct as to the position which the modern law governing a plea of self‑defence gives to the propriety of a person retreating in face of an assault or apprehended assault before resorting to violence to defend himself. The view which the Supreme Court has accepted is that to retreat before employing force is no longer to be treated as an independent and imperative condition if a plea of self‑defence is to be made out.” – pp 462-463 per Dixon CJ (my underlining).

Ratio Decidendi

Legal Principle Established

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