R v Peniamina - [2021] QSC 250

SUPREME COURT OF QUEENSLAND

CITATION:

R v Peniamina [2021] QSC 250

PARTIES:

R

(applicant)

v
ARONA PENIAMINA

(respondent)

FILE NO/S:

BS No 679 of 2017

DIVISION:

Trial Division

PROCEEDING:

Trial

ORIGINATING COURT:

Supreme Court at Brisbane

DELIVERED ON:

Reasons delivered on 8 October 2021

DELIVERED AT:

Brisbane

HEARING DATE:

24 September 2021; directions given 24 September 2021

JUDGE:

Davis J

ORDER:

Directions as per Schedule 1 to these reasons

CATCHWORDS:

CRIMINAL LAW - PROCEDURE - JURIES - DISCHARGE AND EXCUSING FROM ATTENDANCE - JURY UNABLE TO AGREE - where the accused was charged with murder and raised the partial defence of provocation - where the jury was not able to reach a unanimous verdict on murder - where ss 59 and 59A of the Jury Act 1995 provided that no majority verdict could be taken on murder - where ss 59 and 59A of the Jury Act 1995 provided that a majority verdict can be taken on manslaughter - where the onus of proof of provocation is upon the accused - whether a majority verdict could be taken on manslaughter based on provocation - what are the appropriate directions to the jury

Criminal Code, s 291, s 302, s 304, s 576, s 644
Jury Act 1995, s 56, s 57, s 59, s 59A
Penalties and Sentences Act 1992, s 9(10A)

Black v R (1993) 179 CLR 44, cited
Gammage v R (1969) 122 CLR 444, followed
Peniamina v R (2020) 385 ALR 367, related
Pollock v R (2010) 242 CLR 233, cited
R v Buttigieg (1993) 69 A Crim R 21, cited
R v Collins; ex parte Attorney-General [1996] 1 Qd R 631, cited
R v Green (1997) 191 CLR 334, cited
R v Herlihy [1956] St R Qd 18, cited
R v Hutchinson [2018] 3 Qd R 505, cited
R v Pangilinan [2001] 1 Qd R 56, cited
R v Peniamina (2019) 2 QR 658, related
R v Sabri Isa [1952] St R Qd 269, cited
Stanton v R (2003) 77 ALJR 1151, followed
SZTAL v Minister for Immigration and Border Protection (2017) 262 CLR 362, followed
The Queen v Magennis; The Queen v Vaziri (2019) 93 ALJR 1106, followed
The Queen v Nona [1997] 2 Qd R 436, cited

COUNSEL:

D Balic for the applicant

T Ryan for the respondent

SOLICITORS:

Office of the Director of Public Prosecutions for the applicant

Legal Aid Queensland for the respondent

Arona Peniamina was charged that on 31 March 2016 at Kippa-Ring in the State of Queensland, he murdered Sandra Peniamina. The offence was alleged to be a domestic violence offence.[1]
[1]Penalties and Sentences Act 1992, s 9(10A) which applies even though Mrs Peniamina was killed before the introduction of (10A); R v Hutchinson [2018] 3 Qd R 505.
His second trial[2] commenced on 14 September 2021 and the jury returned a verdict of guilty of manslaughter by majority on 24 September 2021. A dispute arose during the trial…

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 Peniamina

Details

AGLC: R v Peniamina [2021] QSC 250
Case: [2021] QSC 250
Decision Date: 8 October 2021

CaseChat Overview and Summary

In the matter of R v Peniamina, the accused was tried on a charge of murder following the death of his wife, Sandra Peniamina, who was killed at their home in Kippa-Ring on the Redcliffe Peninsula. The accused raised a partial defence of provocation, arguing that he killed his wife in response to her infidelity. The jury, however, could not reach a unanimous verdict on the charge of murder. Sections 59 and 59A of the Jury Act 1995 (Vic) were invoked, which stipulated that no majority verdict could be taken on a murder charge. The legal issue before the court was whether a majority verdict could be taken on the lesser charge of manslaughter based on provocation and, if so, what directions should be given to the jury.

The court considered the provisions of the Jury Act 1995 (Vic), which allow for majority verdicts in cases of manslaughter but not murder. Given that provocation is a partial defence reducing murder to manslaughter, the court needed to determine if the jury could return a majority verdict on manslaughter when provocation is raised. The onus of proof for provocation lies on the accused. The court held that a majority verdict on manslaughter was permissible when provocation is a partial defence, provided the jury is properly directed on the burden of proof and the legal standards for provocation.

The court provided detailed directions to the jury, ensuring they understood the burden of proof on the accused and the elements of provocation. The jury was instructed to consider whether the accused acted under provocation and if so, whether this reduced the charge from murder to manslaughter. The court’s decision affirmed that a majority verdict on manslaughter could be taken when provocation is a partial defence. The High Court's decision led to a retrial, with the court providing clear guidance to the jury on the applicable law and the burden of proof. The final orders were to direct the jury in accordance with the court's detailed instructions.

Orders

Orders of the court

Directions as per Schedule 1 to these reasons

Background

Background to the litigation

I directed the jury in terms as appear in Schedule 1 to these reasons and reserved my reasons for so doing. These are those reasons.Background On 31 March 2016, Mr and Mrs Peniamina had an argument at their house at Kippa-Ring on the Redcliffe Peninsula. Violence ensued and Mr Peniamina killed Mrs Peniamina. The cause of death was later identified as a fractured skull with damage to the brain stem. That, the evidence showed, caused the shutdown of Mrs Peniamina’s vital organs. Police interviewed Mr Peniamina at the scene, and an undercover officer introduced into the cell where Mr Peniamina was later held also spoke to him. The conversations were recorded. Mr Peniamina told police that Mrs Peniamina had previously been unfaithful to him and was having an affair with a man in New Zealand to where she had recently travelled. He told police that he and his wife argued in the home about her affair and she was dismissive of him. He punched her. She produced a knife and Mr Peniamina was cut. The cutting sent Mr Peniamina into a rage. He stabbed Mrs Peniamina on multiple occasions in the house, followed her outside, stabbed her outside and struck her head with a cement bollard from the garden. The evidence was that the blow with the bollard was the likely cause of the skull fracture and the damage to the brain stem which caused her death. Mr Peniamina was tried in November 2018 on the charge of murder. When arraigned, he pleaded not guilty to murder but guilty to manslaughter. The Crown did not accept the plea in discharge of the murder count. Mr Peniamina’s defence was that he acted under provocation.[3] Provocation is a partial defence to a charge of murder. If established, provocation reduces murder to manslaughter. He was convicted of murder and the Court of Appeal (McMurdo JA dissenting) dismissed his appeal.[4] Mr Peniamina obtained a grant of special leave to appeal to the High Court who allowed the appeal by majority and ordered a retrial.[5][3]Criminal Code, s 304.[4]R v Peniamina (2019) 2 QR 658.[5]Peniamina v R (2020) 385 ALR 367. On his retrial, Mr Peniamina again pleaded not guilty to murder but guilty to manslaughter. Again, the Crown did not accept the plea and he was again tried on the count of murder. There are four elements to the offence of murder.[6] In the context of Mr Peniamina’s case, they are:1.Sandra Peniamina is dead;2.Mr Peniamina caused Mrs Peniamina’s death;3.Mr Peniamina killed Mrs Peniamina unlawfully;4.Mr Peniamina intended to either kill or do grievous bodily harm to Mrs Peniamina when he did the act which killed her.[6]Criminal Code, s 302. A formal admission was made by Mr Peniamina of element 1. As already observed, provocation[7] is a partial defence reducing murder to manslaughter. It does not render a killing lawful. The jury were instructed that there was no authorisation, justification or excuse[8] raised on the evidence for their consideration, so element 3 was of no practical relevance. [7]Criminal Code, s 304.[8]Criminal Code, s 291.

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 Peniamina [2021] QSC 250
PARTIES:	R (applicant) v ARONA PENIAMINA (respondent)
FILE NO/S:	BS No 679 of 2017
DIVISION:	Trial Division
PROCEEDING:	Trial
ORIGINATING COURT:	Supreme Court at Brisbane
DELIVERED ON:	Reasons delivered on 8 October 2021
DELIVERED AT:	Brisbane
HEARING DATE:	24 September 2021; directions given 24 September 2021
JUDGE:	Davis J
ORDER:	Directions as per Schedule 1 to these reasons
CATCHWORDS:	CRIMINAL LAW - PROCEDURE - JURIES - DISCHARGE AND EXCUSING FROM ATTENDANCE - JURY UNABLE TO AGREE - where the accused was charged with murder and raised the partial defence of provocation - where the jury was not able to reach a unanimous verdict on murder - where ss 59 and 59A of the Jury Act 1995 provided that no majority verdict could be taken on murder - where ss 59 and 59A of the Jury Act 1995 provided that a majority verdict can be taken on manslaughter - where the onus of proof of provocation is upon the accused - whether a majority verdict could be taken on manslaughter based on provocation - what are the appropriate directions to the jury Criminal Code, s 291, s 302, s 304, s 576, s 644 Jury Act 1995, s 56, s 57, s 59, s 59A Penalties and Sentences Act 1992, s 9(10A) Black v R (1993) 179 CLR 44, cited Gammage v R (1969) 122 CLR 444, followed Peniamina v R (2020) 385 ALR 367, related Pollock v R (2010) 242 CLR 233, cited R v Buttigieg (1993) 69 A Crim R 21, cited R v Collins; ex parte Attorney-General [1996] 1 Qd R 631, cited R v Green (1997) 191 CLR 334, cited R v Herlihy [1956] St R Qd 18, cited R v Hutchinson [2018] 3 Qd R 505, cited R v Pangilinan [2001] 1 Qd R 56, cited R v Peniamina (2019) 2 QR 658, related R v Sabri Isa [1952] St R Qd 269, cited Stanton v R (2003) 77 ALJR 1151, followed SZTAL v Minister for Immigration and Border Protection (2017) 262 CLR 362, followed The Queen v Magennis; The Queen v Vaziri (2019) 93 ALJR 1106, followed The Queen v Nona [1997] 2 Qd R 436, cited
COUNSEL:	D Balic for the applicant T Ryan for the respondent
SOLICITORS:	Office of the Director of Public Prosecutions for the applicant Legal Aid Queensland for the respondent