R v Peniamina

Case [2019] QCA 273

SUPREME COURT OF QUEENSLAND

CITATION:

R v Peniamina [2019] QCA 273

PARTIES:

R
v
PENIAMINA, Arona
(appellant)

FILE NO/S:

CA No 336 of 2018
SC No 679 of 2017

DIVISION:

Court of Appeal

PROCEEDING:

Appeal against Conviction

ORIGINATING COURT:

Supreme Court at Brisbane – Date of Conviction: 12 November 2018 (Sofronoff P)

DELIVERED ON:

29 November 2019

DELIVERED AT:

Brisbane

HEARING DATE:

31 July 2019

JUDGES:

Morrison and McMurdo JJA and Applegarth J

ORDER:

The appeal is dismissed.

CATCHWORDS:

CRIMINAL LAW – GENERAL MATTERS – CRIMINAL LIABILITY AND CAPACITY – DEFENCE MATTERS – PROVOCATION – DIRECTIONS TO JURY – where the appellant was convicted of the murder of his wife, having pleaded guilty to manslaughter – where the issue at trial was whether the appellant had proven the partial defence of provocation in s 304(1) Criminal Code (Qld) – where the appellant suspected his wife of infidelity – where the appellant confronted his wife, she refused to talk to him and he punched her in the face – where the appellant’s wife grabbed a knife, presumably to defend herself – where the appellant grabbed the blade of the knife and received a deep cut to his hand – where the appellant then engaged in a protracted attack on his wife, stabbing her over twenty times and hitting her in the back of the head with a concrete bollard, which killed her – where s 304(3) of the Criminal Code (Qld) provided that the defence of provocation did not apply, other than “in circumstances of an extreme and exceptional character”, where a domestic relationship exists between two persons and the sudden provocation is based on anything done by the deceased to end or change the nature of the relationship – where the Crown case was that the sudden provocation was based on acts done by the appellant’s wife to change the nature of the relationship so that the appellant needed to prove circumstances of an “extreme and exceptional character” – where the appellant submitted the exclusion did not apply because the brandishing of the knife, which led him to grab the blade and his hand to be cut, was the conduct that caused him to lose self-control, rather than acts done by his wife to change the nature of the relationship – whether the words “based on” in s 304(3)(c) permit the exclusion to be engaged where acts done by the deceased to change the nature of the relationship precede the act of sudden provocation nominated by the defendant – whether the exclusion in s 304(3) arose on the evidence – whether the trial judge erred in directing the jury that it was for the defence to prove on the balance of probabilities that the provocation was not based on acts done by the deceased to change the nature of the relationship

Criminal Code (Qld), s 304, s 728, s 739
Criminal Code and Other Legislation Amendment Act 2011 (Qld), s 5

Cosco Holdings Pty Ltd v Thu (1997) 79 FCR…

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AGLC
R v Peniamina [2019] QCA 273
Case
[2019] QCA 273
Decision Date

CaseChat Overview and Summary

The case of R v Peniamina involved the appeal of an appellant who had been convicted of murdering his wife. The central issue at trial was whether the appellant had successfully proven the partial defence of provocation under section 304(1) of the Criminal Code (Qld). The appellant claimed that the stabbing of his hand by his wife, who had taken a knife to defend herself, led to his loss of self-control and subsequent violent actions. The court had to determine whether the exclusion in section 304(3) of the Criminal Code applied, which stated that the defence of provocation did not apply unless the circumstances were of an extreme and exceptional character, particularly if the sudden provocation was based on actions by the deceased to end or change the relationship.

The court focused on whether the words "based on" in section 304(3)(c) allowed for the exclusion to apply if the acts that changed the nature of the relationship preceded the act of sudden provocation. The court also considered whether the trial judge had correctly directed the jury on the burden of proof required to negate the application of section 304(3). The appellant argued that the exclusion should not apply because the act that caused him to lose self-control was his wife's brandishing of the knife, not her prior actions to change the relationship.

The court found that the jury might not have considered the application of section 304(1) because they believed it did not apply. The court concluded that the jury was misdirected, and the appellant might have lost a verdict of acquittal of murder as a result. The court held that the trial judge should not have directed the jury to consider whether acts preceding the stabbing were done to change the nature of the relationship, as the prosecutor did not argue that the sudden provocation was based on such preceding conduct. The misdirection could have led the jury to believe that they needed to consider whether the appellant had reacted to some preceding act, which was not supported by the evidence.

The appeal was allowed, the conviction of murder was quashed, and the appellant was ordered to be retried on the charge of murder. This decision underscored the importance of accurate jury directions in criminal trials, particularly concerning the nuances of legal defences such as provocation.

Orders

Orders of the court

The appeal is dismissed.

Background

Background to the litigation

In that event, the trial judge would not have introduced an additional hurdle that the appellant was not required to clear. It would be a hurdle (in addition to the hurdle in s 304(1)), introduced by the legislature in 2011, which, on the state of the evidence, the appellant was required to clear.Factual background The appellant and his wife, Sandra Peniamina, lived with their four young sons. The appellant worked as a scaffolder and Sandra looked after the children. In late 2015 or early 2016, Sandra went to New Zealand with the children for a holiday. After she returned home in February 2016, the appellant perceived that Sandra was behaving differently. He believed he had discovered that she had been having an affair in New Zealand. The appellant confided in and received advice from two women: his aunt, Talaitupu Niumata (Tala) and his cousin, Natasha Leapai. About two weeks before Sandra was killed, the appellant told Tala that since Sandra had returned from New Zealand, they had been having marriage problems and Sandra was sleeping in the spare room. Two days before Sandra was killed, the appellant called Tala to discuss his suspicions. Tala had seen pictures of Sandra with a man named Stallan Ioane on Facebook. She had seen that Ioane was describing Sandra as his girlfriend. After being pressed by the appellant, Tala disclosed that based on what she had seen on Facebook, she thought Sandra had met somebody in New Zealand, but she did not know who it was. That evening, the appellant and Sandra had an argument over her mobile phone. Their ten-year-old son and his nine-year-old friend overheard Sandra demanding the return of her phone. The appellant went out the back door and left. Their son later told police “they fight a lot.” The appellant visited Natasha that evening and told her that his aunty had seen on Facebook that Sandra was having an affair. He showed her the man’s Facebook profile. The appellant was frustrated and “concerned for his kids, mostly” because he was worried about Sandra taking the children overseas. Natasha told him she would ring “a couple of places” to find out the steps he could take if Sandra took the children without his authorisation. On Wednesday 30 March 2016, Natasha telephoned the appellant to advise him of the results of her research, and found him to be “quite content and quite happy.” He said that he and Sandra had worked things out and that everything seemed to be okay.The events of 31 March 2016 On Thursday 31 March 2016, the appellant came home from work at about 4.30 pm. He had a shower, then he and Sandra went to Coles to do some shopping and to buy food for the children’s dinner. After they returned home, they brought in the groceries. While Sandra prepared the children’s meal, the appellant “went missing for a little while”. He returned when the children were about to eat and was angry, then went into his room. After dinner, Sandra and the children were folding washing in the toy room. At around 7.30 pm, the appellant took another mobile phone from Sandra. He “jumped in the car”. His family did not know where he was going.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Therefore, this is a case where the jury may not have considered the application of s 304(1), because the jury may have thought that it had no application. If so, then to apply the proviso in this case would be to substitute trial by an appeal court for trial by jury.[40] This is not a case where the proviso should be applied, regardless of whether this Court is of the opinion that the appellant was guilty of murder, and an opinion on that question need not, and should not, be expressed.[40]Lane (2018) 92 ALJR 689 at 698 [50]; [2018] HCA 28 at [50]. Conclusion and orders The jury was misdirected and, in consequence, the appellant may have lost a verdict of acquittal of murder. I would order as follows:1.The appeal be allowed.2.The conviction of murder be quashed.3.The appellant be re-tried on the charge of murder. APPLEGARTH J: The appellant brutally killed his wife and was convicted of murder. The issue at his trial was whether he had proven the partial defence of provocation. The conduct of the deceased which the appellant claimed caused his loss of self-control was the cutting of his hand with a knife, which the deceased had obtained to defend herself. Shortly before her death, the relationship between the appellant and the deceased had deteriorated. He suspected her of infidelity. She took to sleeping in a separate room. He was concerned that she might take their children and leave him. On the night she was killed, the appellant tried to talk to her about a mobile phone of hers on which he had discovered text messages from a man who he believed was his wife’s boyfriend. According to the appellant, the deceased refused to talk to him and looked like she did not care. He hit her, causing her mouth to bleed. She went into a bathroom, and then into the kitchen where she obtained a knife, presumably to defend herself against a further attack. The appellant grabbed the blade of the knife and tried to take it off her. He received a deep cut on his hand. The appellant was in pain and became “more angry and more angry”. He then inflicted horrific and sustained violence on his wife, using two knives and a concrete bollard. It was not sufficient for the appellant to prove that the cutting of his hand in the circumstances provided a partial defence of provocation in terms of s 304(1) of the Criminal Code. This is because the appellant had to prove that the exclusion contained in s 304(3) did not apply. At the relevant time, s 304(3) provided that subsection 304(1) did not apply, other than “in circumstances of a most extreme and exceptional character” if:“(a)a domestic relationship exists between 2 persons; and(b)one person unlawfully kills the other person (the deceased); and(c)the sudden provocation is based on anything done by the deceased or anything the person believes the deceased has done –(i)to end the relationship; or(ii)to change the nature of the relationship; or(iii)to indicate in any way that the relationship may, should or will end, or that there may, should or will be a change to the nature of the relationship.” (emphasis added)For ease of reference I will refer to the various matters stated in s 304(3)(c)(i), (ii) and (iii) as “to change the relationship”.

Ratio Decidendi

Legal Principle Established

It is argued for the respondent that, if this Court is of the view that the evidential threshold to give the directions about s 304(3) was not reached, the Court should find that there was no substantial miscarriage of justice which has occurred, and apply the proviso under s 668E(1A) of the Code. In that respect, it is said that the trial judge’s directions correctly identified the law to be applied, the factual basis upon which the jury had to make their determination and the arguments of the appellant. It is argued that this Court would be persuaded that, upon the whole of the evidence, the production and use of the knife by the deceased “was not such an act that an ordinary person would have lost control and acted on the sudden”. At least one problem with that submission is that, according to what is described as the objective test in the application of s 304(1), the question is whether an ordinary person could have lost their self-control and acted as they did.[36][36]Stingel v The Queen (1990) 171 CLR 312 at 329, 331; [1990] HCA 61.Consideration The trial judge correctly described the act of the deceased upon which the defence case relied. As his Honour told the jury, if they were not satisfied that the appellant lost his self-control, and as a reaction to what the deceased did with the knife, the defence case would fail under the judge’s question 5. The jury were directed to consider s 304(3) in the event that they were satisfied of the facts which the appellant had to prove under s 304(1). Any consideration of the operation of s 304(3) had to be made by reference to the act or acts of the deceased which caused the sudden provocation; that is to say, the appellant’s loss of self-control. Therefore, in order for s 304(3) to be engaged, the jury had to find that, more probably than not, what was done by the deceased with the knife was done to end or change the nature of the relationship. The trial judge left to the jury the question of whether “the stabbing itself” was an act done to change the nature of the relationship. In my respectful opinion, his Honour ought not to have done so, because there was no evidentiary foundation for this argument by the prosecutor. An inference that the deceased did those things with the knife in order to end or change the relationship was not open. In the events which had occurred before the altercation which culminated in her death, she had done many things which had made it clear that the relationship had ended or changed. On the only realistic view of the evidence, her acts with the knife were a reaction to being punched by the appellant, and perhaps to other preceding events. The jury were also directed to consider another basis for the application of s 304(3), namely that there was an act to which the appellant reacted that may have been something which the deceased had done to change the nature of the relationship, which “preceded the stabbing” (meaning that it was something which preceded the altercation). In my respectful opinion, the jury were thereby misdirected, because any consideration of the application of s 304(3) had to be by reference to the conduct of the deceased upon which the defence sought to prove its case. Indeed, the judge suggested to the jury to consider question 7 if satisfied that question 5 (and question 6) should be answered in the appellant’s favour. Upon that premise, the jury could have been considering whether the appellant had reacted to some “preceding” act only by a misunderstanding of the effect of s 304(3). As I have said, the prosecutor had not argued that the sudden provocation (if any) was caused by preceding conduct of the deceased.