R v Dayney - [2020] QCA 264

SUPREME COURT OF QUEENSLAND

CITATION:

R v Dayney [2020] QCA 264

PARTIES:

R
v
DAYNEY, Mark Vincent
(appellant)

FILE NO/S:

CA No 107 of 2018
SC No 882 of 2017

DIVISION:

Court of Appeal

PROCEEDING:

Appeal against Conviction

ORIGINATING COURT:

Supreme Court at Brisbane – Date of Conviction: 1 May 2018 (Douglas J)

DELIVERED ON:

1 December 2020

DELIVERED AT:

Brisbane

HEARING DATE:

24 August 2020

JUDGES:

Sofronoff P and Fraser and McMurdo JJA

ORDERS:

1.   Appeal allowed.

2.   Set aside the conviction on count 2 on the indictment.

3.   Re-trial ordered.

CATCHWORDS:

CRIMINAL LAW – APPEAL AND NEW TRIAL –GENERAL PRINCIPLES – MISCARRIAGE OF JUSTICE – where the appellant was convicted by a jury after a trial of one count of murder – where the appellant and his partner planned to steal drugs and money from the deceased’s home – where the deceased was the appellant’s partner’s former lover – where the appellant’s partner was contacted by the deceased for her sexual services as a sex worker, for which she used a pseudonym, and the deceased was unaware that he had contacted his former lover – where the appellant and his partner’s plan involved the appellant’s partner “distracting” the deceased with her sexual services while the appellant would covertly enter the home and steal from the deceased – where their plan immediately went askew – where the appellant went into the deceased’s home to see that his partner and the deceased were sitting on the couch smoking methylamphetamine – where the appellant appeared in the same room as them dressed in black like a burglar should be dressed and he was masked – where there was a violent struggle between the appellant and the deceased – where the appellant beat the deceased with a baseball bat, which broke in two, and a tennis racket, the head of which broke – where the fatal blow was a blow across the face which rendered the deceased unconscious, fractured bones which obstructed his airway and stopped his breath – where the Crown case at trial alleged that the appellant had launched a savage unprovoked attack against an unarmed man using two weapons in succession intending to kill him – where the appellant in his evidence said that the deceased had produced a silver pistol from between his legs when the appellant entered the home – where his defence counsel submitted to the learned trial judge that the jury should be directed about the potential applicability of defences under ss 271 and 272 of the CriminalCode – where the learned trial judge declined to put s 271 before the jury but gave directions about the application of s 272 – where the appellant now appeals on two grounds, firstly, that the learned trial judge erred in refusing to leave for the jury’s consideration self-defence under s 271 of the Code and, secondly, that the learned trial judge misdirected the jury on the application of s 272(1) of the Code – whether the…

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 R v Dayney

Details

AGLC: Content removed [2020] QCA 264
Case: [2020] QCA 264
Decision Date: 1 December 2020

CaseChat Overview and Summary

The appellant, Dayney, was convicted by a jury of one count of murder following a trial. Dayney and his partner had planned to steal drugs and money from the deceased’s home. The deceased, who was the partner’s former lover, contacted her for her sexual services as a sex worker, unaware of her identity. The plan involved the partner distracting the deceased while Dayney entered the home to steal. However, the plan went awry when Dayney entered the home to find the pair on the couch smoking methylamphetamine, armed with a baseball bat and a tennis racket. A violent struggle ensued, during which Dayney beat the deceased with the weapons, ultimately delivering a fatal blow that rendered the deceased unconscious, fractured his bones, and obstructed his airway.

The legal issues in this case centred on whether the trial judge erred in refusing to leave the defence of self-defence under section 271 of the Criminal Code for the jury’s consideration, and whether the judge misdirected the jury on the application of section 272(1) of the Code. The appellant argued that the deceased had produced a silver pistol from between his legs when Dayney entered the home, justifying his actions under self-defence. The trial judge declined to put section 271 before the jury but provided directions about the application of section 272. Dayney appealed on these grounds, asserting that a miscarriage of justice had occurred.

The court found that the trial judge erred in not allowing the jury to consider the defence of self-defence under section 271, as there was evidence that the deceased had produced a pistol. The court further found that the trial judge misdirected the jury on the application of section 272, as the directions did not properly account for the possibility of self-defence. The court concluded that these errors amounted to a miscarriage of justice. Consequently, the appeal was allowed, the conviction on count 2 was set aside, and a re-trial was ordered.

Orders

Orders of the court

1. Appeal allowed.

2. Set aside the conviction on count 2 on the indictment.

3. Re-trial ordered.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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CITATION:	R v Dayney [2020] QCA 264
PARTIES:	R v DAYNEY, Mark Vincent (appellant)
FILE NO/S:	CA No 107 of 2018 SC No 882 of 2017
DIVISION:	Court of Appeal
PROCEEDING:	Appeal against Conviction
ORIGINATING COURT:	Supreme Court at Brisbane – Date of Conviction: 1 May 2018 (Douglas J)
DELIVERED ON:	1 December 2020
DELIVERED AT:	Brisbane
HEARING DATE:	24 August 2020
JUDGES:	Sofronoff P and Fraser and McMurdo JJA
ORDERS:	1. Appeal allowed. 2. Set aside the conviction on count 2 on the indictment. 3. Re-trial ordered.
CATCHWORDS:	CRIMINAL LAW – APPEAL AND NEW TRIAL –GENERAL PRINCIPLES – MISCARRIAGE OF JUSTICE – where the appellant was convicted by a jury after a trial of one count of murder – where the appellant and his partner planned to steal drugs and money from the deceased’s home – where the deceased was the appellant’s partner’s former lover – where the appellant’s partner was contacted by the deceased for her sexual services as a sex worker, for which she used a pseudonym, and the deceased was unaware that he had contacted his former lover – where the appellant and his partner’s plan involved the appellant’s partner “distracting” the deceased with her sexual services while the appellant would covertly enter the home and steal from the deceased – where their plan immediately went askew – where the appellant went into the deceased’s home to see that his partner and the deceased were sitting on the couch smoking methylamphetamine – where the appellant appeared in the same room as them dressed in black like a burglar should be dressed and he was masked – where there was a violent struggle between the appellant and the deceased – where the appellant beat the deceased with a baseball bat, which broke in two, and a tennis racket, the head of which broke – where the fatal blow was a blow across the face which rendered the deceased unconscious, fractured bones which obstructed his airway and stopped his breath – where the Crown case at trial alleged that the appellant had launched a savage unprovoked attack against an unarmed man using two weapons in succession intending to kill him – where the appellant in his evidence said that the deceased had produced a silver pistol from between his legs when the appellant entered the home – where his defence counsel submitted to the learned trial judge that the jury should be directed about the potential applicability of defences under ss 271 and 272 of the CriminalCode – where the learned trial judge declined to put s 271 before the jury but gave directions about the application of s 272 – where the appellant now appeals on two grounds, firstly, that the learned trial judge erred in refusing to leave for the jury’s consideration self-defence under s 271 of the Code and, secondly, that the learned trial judge misdirected the jury on the application of s 272(1) of the Code – whether the…