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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

  1. [1]
    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]
  2. [2]
    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 between the parties as to the operation of ss 59 and 59A of the Jury Act 1995, which provide for the taking of a majority verdict.
  3. [3]
    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

  1. [4]
    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.
  2. [5]
    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.
  3. [6]
    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]
  4. [7]
    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.
  5. [8]
    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.
  1. [9]
    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.
  2. [10]
    Neither element 2 nor element 4 were the subject of formal admissions.[9]  However, in both his opening remarks made to the jury after the Crown prosecutor’s opening of the case[10] and in his final address, Mr Ryan of counsel for Mr Peniamina accepted that Mr Peniamina had killed Mrs Peniamina with murderous intent.  The case was conducted on the basis that the Crown could prove all four elements of murder beyond reasonable doubt.  The only real issue in the trial as identified by both counsel was the partial defence of provocation.
  3. [11]
    Section 304 of the Code at the relevant time provided:

304 Killing on provocation

  1. (1)
    When a person who unlawfully kills another under circumstances which, but for the provisions of this section, would constitute murder, does the act which causes death in the heat of passion caused by sudden provocation, and before there is time for the person’s passion to cool, the person is guilty of manslaughter only.
  1. (2)
    Subsection (1) does not apply if the sudden provocation is based on words alone, other than in circumstances of an exceptional character.
  1. (3)
    Also, subsection (1) does not apply, other than in circumstances of an exceptional character, if—
  1. (a)
    a domestic relationship exists between 2 persons; and
  1. (b)
    one person unlawfully kills the other person (the deceased); and
  1. (c)
    the sudden provocation is based on anything done by the deceased or anything the person believes the deceased has done—
  1. (i)
    to end the relationship; or
  1. (ii)
    to change the nature of the relationship; or
  1. (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.
  1. (4)
    For subsection (3)(a), despite the Domestic and Family Violence Protection Act 2012, section 18(6), a domestic relationship includes a relationship in which 2 persons date or dated each other on a number of occasions.
  1. (5)
    Subsection (3)(c)(i) applies even if the relationship has ended before the sudden provocation and killing happens.
  1. (6)
    For proof of circumstances of a most extreme and exceptional character mentioned in subsection (2) or (3) regard may be had to any history of violence that is relevant in all the circumstances.
  1. (7)
    On a charge of murder, it is for the defence to prove that the person charged is, under this section, liable to be convicted of manslaughter only.
  1. (8)
    When 2 or more persons unlawfully kill another, the fact that 1 of the persons is, under this section, guilty of manslaughter only does not affect the question whether the unlawful killing amounted to murder in the case of the other person or persons.”
  1. [12]
    Subsection 304(3) was ruled on the first trial to have been engaged.  The High Court held otherwise.[11]  The jury in the second trial were not directed on s 304(3).
  2. [13]
    Some of the provocative acts alleged by Mr Peniamina were statements made by Mrs Peniamina.  Central to the partial defence of provocation was the allegation that Mrs Peniamina had wounded Mr Peniamina with a knife.  It was not suggested that only words spoken by Mrs Peniamina caused Mr Peniamina’s murderous reaction.  Therefore, the jury were not directed on s 304(2).
  3. [14]
    The onus of proving the partial defence was upon Mr Peniamina once the Crown had proved all of the four elements of murder.[12]
  4. [15]
    Although s 304 is a section contained in a legislative code, it has long been accepted that the section incorporates common law notions of “provocation”.[13]  The partial defence of provocation has three elements:
  1. The deceased did acts or said things which were provocative;
  2. The person who killed was provoked by the acts or words;
  3. when the person did the act which killed, he was acting while provoked.
  1. [16]
    “Provocation” in s 304 takes its common law meaning so that a person acts on provocation if he lost self-control and an ordinary person would have lost self-control and killed in the face of the provocation offered.[14]
  2. [17]
    Manslaughter is an alternative verdict on a count of murder.  Section 576 of the Code provides:

576 Indictment containing count of murder or manslaughter

  1. (1)
    Upon an indictment against a person containing a count of the crime of murder, the person may be convicted on that count of the crime of manslaughter if that crime is established by the evidence but not on that count of any other offence than that with which the person is charged except as otherwise expressly provided.
  1. (2)
    Upon an indictment against a person containing a count of the crime of manslaughter the person can not on that count be convicted of any other offence except as otherwise expressly provided.”
  1. [18]
    Although Mr Peniamina had pleaded guilty to manslaughter at the beginning of the trial, both murder and the alternative of manslaughter were for the jury’s consideration once the Crown elected not to accept the plea.[15]
  2. [19]
    There being no formal admission of the element of intention, the paths to conviction for manslaughter were described in the summing-up as follows:

“The first three of those elements are the elements of an unlawful killing.  Proof of them beyond reasonable doubt without proof of the fourth element would prove the offence of manslaughter.  Manslaughter is an inherent alternative charge to murder but it only becomes available as an alternative in the event that you find the defendant not guilty of murder.

You may return a verdict of manslaughter in this case in one of two circumstances. If you were satisfied beyond reasonable doubt of elements 1, 2 and 3, but you were not satisfied beyond reasonable doubt that Mr Peniamina intended to kill or do grievous bodily harm to Sandra Peniamina, then he would be guilty of manslaughter, not murder, and it would not be necessary for you to consider provocation. That is the first way in which you could return a verdict of guilty of manslaughter.

The second way you may return a verdict of guilty of manslaughter is if you were satisfied of all four elements of murder, but you found that when Mr Peniamina unlawfully and intentionally killed Sandra Peniamina, he was acting under provocation. I will return to provocation shortly.”

  1. [20]
    In an attempt to distil the real issues, the jury were instructed in the summing-up as follows on the four elements of murder:

“As has been discussed a couple of times, there are four elements of murder.  The first is that Mrs Peniamina is dead. That’s the subject of an admission by Mr Peniamina. The second is that Mr Peniamina caused Mrs Peniamina’s death.  Again, you may have little difficulty in concluding that.  You have evidence of various statements made by Mr Peniamina to the effect that he attacked her.  None of that has been challenged and Mr Peniamina has pleaded guilty to manslaughter.  The third element is that Mr Peniamina killed Mrs Peniamina unlawfully.  The question there is whether there is some authorisation, justification or excuse provided by law to the killing.  As I’ve told you previously, there isn’t.

You may then, but ultimately it’s a matter entirely for you, have very little difficulty in concluding that the first three elements have been proved beyond reasonable doubt and that Mr Peniamina has unlawfully killed Mrs Peniamina and therefore committed the offence of manslaughter.

The fourth element is that Mr Peniamina intended to kill or do grievous bodily harm to Mrs Peniamina.  Sometimes persons do things where they have no intention at all.  They react to something without thinking about the consequences of their actions.  Here, though, the evidence is, but ultimately this is again a matter for you to assess, that Mr Peniamina told police that he wanted to kill Mrs Peniamina.  The attack upon Mrs Peniamina consisted of 29 stabs wounds and at least one blow to the head with the bollard, if that’s what you find happened.  That may indicate at least an intention to do grievous bodily harm to her.  Mr Peniamina’s barrister, Mr Ryan in his opening and closing remarks, accepted that Mr Peniamina manifested an intention to kill Mrs Peniamina.  That concession is not conclusive; ultimately, it’s a matter for you.”

And the following on the three elements of provocation:

“The first element of provocation is whether Mrs Peniamina did provocative acts.  I’ve identified the statements or acts of provocation.  The only direct evidence of those acts and statements comes from the various statements made by Mr Peniamina to police.

However, as to the cutting of Mr Peniamina’s hand, there is evidence which at least partially supports his account.  That evidence is that he had a severe cut to his hand. 

Mr Peniamina’s account to police is that the provocative statements occurred in the context of him challenging his wife about an alleged affair.  You have evidence of Mr Peniamina’s conversations with family members prior to 31 March 2016 about his concerns that Mrs Peniamina was having an affair.  So you might conclude that it was likely that topic was raised.

You also have evidence of a severe reaction to whatever occurred in the house.  It’s entirely a matter for you, but you may have little difficulty in concluding that there were some statements and/or acts done by Mrs Peniamina within the house which caused a severe reaction from Mr Peniamina.

The second element is whether Mr Peniamina was provoked.  You might have little difficulty in concluding that he reacted.  By that I mean that what Mrs Peniamina said and did was the catalyst of what followed. 

The real questions you might think are;

i. whether at the time of doing that act which killed Mrs Peniamina, which the Crown says is striking her with the bollard, Mr Peniamina was acting in a state of loss of self-control;

ii. whether an ordinary person, as I have described that notion, in the circumstances of Mr Peniamina, could have reacted and killed Mrs Peniamina.”

  1. [21]
    The jury retired to consider their verdicts just after midday on 21 September 2021. 
  2. [22]
    On 22 September 2021, the jury delivered a note in these terms:

“There are concerns from a number of Juror’s who feel there is a Juror who is unable to remain impartial & drawing on personal experience.”

  1. [23]
    The jury were directed:

“HIS HONOUR: Ladies and gentlemen, I’ve received a note from - which I understand is a note from the speaker, rather than a note from all of you - but it’s in these terms.

There are concerns from a number of jurors who feel there is a juror who is unable to remain impartial and drawing on personal experience.

Now, can I just say this. Disagreements in the jury room are not uncommon. That different views on the evidence are formed by different members of the jury is hardly surprising. What is important is that your verdict, or verdicts, as the case may be, are delivered consistently with the oaths or affirmations that you’ve taken. That is, to decide the case on the evidence. So questions of partiality, of course, have to be dealt with. You must consider the case on the evidence. Having said that, none of you can join in a verdict in which you don’t honestly agree. Now, each of you takes into the jury room your individual experience and wisdom, and you are expected to judge the evidence fairly and impartially in that light. You also have a duty to listen carefully and objectively to the views of every one of your fellow jurors. The process of considering your verdict should involve weighing up each other’s opinions about the evidence and testing them by discussion. This often leads to a better understanding of the differences of opinion, which you may have. It may convince you that your original opinion was wrong. Now, that is not, of course, to suggest that you can consistently, with your oath or affirmation as a juror, join in a verdict if you do not honestly and genuinely thank that is the correct one.”

  1. [24]
    The direction sought to address the issues considered by the High Court in Black v R.[16]  The direction drew heavily from the draft direction suggested in Black.
  2. [25]
    On 23 September 2021, the jury asked for some recorded evidence to be played and some other evidence read.  That occurred.
  3. [26]
    On 24 September 2021, after almost three days of deliberations, the jury provided the following note:

“We are unable to reach a unanimous decision on murder.

Can we please have some direction on how to proceed?”

  1. [27]
    Given the contents of the earlier jury note, the possibility of deadlock had been anticipated and submissions had already been received from counsel on the operation of ss 59 and 59A of the Jury Act which provide for the taking of a majority verdict.  Those sections, and ss 56 and 57 which are also of some significance, are:

56 Discharge or death of individual juror

  1. (1)
    If, after a juror has been sworn—
  1. (a)
    it appears to the judge (from the juror’s own statements or from evidence before the judge) that the juror is not impartial or ought not, for other reasons, be allowed or required to act as a juror at the trial; or
  1. (b)
    the juror becomes incapable, in the judge’s opinion, of continuing to act as a juror; or
  1. (c)
    the juror becomes unavailable, for reasons the judge considers adequate, to continue as a juror;

the judge may, without discharging the whole jury, discharge the juror.

  1. (2)
    If a juror dies or is discharged before the trial begins, the judge may direct that another juror be selected and sworn.

57 Continuation of trial with less than full number of jurors

  1. (1)
    If a juror dies or is discharged after a trial begins, and there is no reserve juror available to take the juror’s place, the judge may direct that the trial continue with the remaining jurors.
  1. (2)
    However, a civil trial can not continue with less than 3 jurors and a criminal trial can not continue with less than 10 jurors.
  1. (3)
    The verdict of the remaining jurors has the same effect as if all the jurors had continued present. …

59 Verdict in criminal cases for particular offences must be unanimous

  1. (1)
    This section applies to the following criminal trials on indictment—
  1. (a)
    a trial for any of the following offences—
  1. (i)
    murder;
  1. (ii)
    an offence against the Criminal Code, section 54A(1) if, because of the circumstances of the offence, the offender is liable to imprisonment for life, which can not be mitigated or varied under the Criminal Code or any other law;
  1. (iii)
    an offence against a law of the Commonwealth;
  1. (b)
    a trial before a jury consisting of only 10 jurors when it gives its verdict.
  1. (2)
    For subsection (1)(b), it does not matter that at any time before its verdict was given the jury consisted of more than 10 jurors.
  1. (3)
    The verdict of the jury must be unanimous.
  1. (4)
    However, if on the trial of an offence mentioned in subsection (1)(a)(i) or (ii)—
  1. (a)
    the jury is unable to reach a unanimous verdict; and
  1. (b)
    the defendant is liable to be convicted of another offence not mentioned in subsection (1)(a)(i) or (ii);

in relation to the conviction for the other offence, section 59A applies as if the defendant were originally charged with the other offence.

59A Verdict in criminal cases for other offences

  1. (1)
    This section applies to a criminal trial on indictment other than the following trials—
  1. (a)
    a trial for an offence mentioned in section 59(1)(a); or
  1. (b)
    a trial before a jury as mentioned in section 59(1)(b).
  1. (2)
    If, after the prescribed period, the judge is satisfied that the jury is unlikely to reach a unanimous verdict after further deliberation, the judge may ask the jury to reach a majority verdict.
  1. (3)
    If the jury can reach a majority verdict, the verdict of the jury is the majority verdict.
  1. (4)
    For the definition in subsection (6), prescribed period, paragraph (a), the periods mentioned in subparagraphs (i), (ii) and (iii) are the periods reasonably calculated by the judge.
  1. (5)
    A decision of the judge under subsection (4) is not subject to appeal.
  1. (6)
    In this section—

majority verdict means—

  1. (a)
    if the jury consists of 12 jurors—a verdict on which at least 11 jurors agree; or
  1. (b)
    if the jury consists of 11 jurors—a verdict on which at least 10 jurors agree.

prescribed period means—

  1. (a)
    a period of at least 8 hours after the jury retires to consider its verdict, not including any of the following periods—
  1. (i)
    a period allowed for meals or refreshments;
  1. (ii)
    a period during which the judge allows the jury to separate, or an individual juror to separate from the jury;
  1. (iii)
    a period provided for the purpose of the jury being accommodated overnight; or
  1. (b)
    the further period the judge considers reasonable having regard to the complexity of the trial.”
  1. [28]
    As already observed, directions were given as appears in Schedule 1 to these reasons.  The jury asked some questions as to the mechanics of taking a majority verdict.  Further directions were given which are not relevant for present purposes.  The jury then retired.  A few minutes later the jury returned.
  2. [29]
    The jury:
  1. said that a unanimous verdict could not be reached on the count of murder;
  2. said that 11 members of the jury had agreed on a verdict on manslaughter;
  3. returned that verdict as “guilty”.

Discussion

  1. [30]
    Ms Balic for the Crown opposed the taking of a majority verdict on manslaughter.  She submitted that s 59(4) of the Jury Act only applied when the conditions in both s 59(1)(a) and s 59(1)(b) were established.  As this was not a trial where the jury consisted “of only 10 jurors when it [would give] its verdict”, she submitted that there was no jurisdiction to take a majority verdict.
  2. [31]
    That submission misunderstood the structure of Division 5 of Part 6 of the Jury Act.  Section 56 provides for the discharge of a juror.  Section 57 provides that the trial may continue notwithstanding the discharge of one or more members of the jury.  However, s 57(2) provides that “a criminal trial cannot continue with less than 10 jurors”.  Section 59A provides for majority verdicts in two circumstances.  Firstly, a jury of 12 may give a majority verdict where at least 11 jurors agree[17] and secondly, a jury consisting of 11 jurors may give a verdict at which at least 10 jurors agree.[18]  However, if the jury consists of 10 jurors, being the minimum number of jurors in a criminal trial, the verdict must be unanimous.  Where s 59(1)(a) or (b) is engaged, s 59(3) dictates that the verdict must be unanimous unless resort can be had to s 59(4).  Section 59(4) applies in the circumstances of s 59(1)(a)(i) or (ii) but not 59(i)(b).
  3. [32]
    Where the charge is murder,[19] and there is a jury of 12 (as here), the verdict on murder must be unanimous,[20] but a verdict on manslaughter, being an offence to which a person is “liable to be convicted” on a count charging murder,[21] may be returned by majority of 11.[22]
  4. [33]
    The real controversy was as to the circumstances in which a jury may return a majority verdict on manslaughter where the partial defence of provocation is in play.
  5. [34]
    Ms Balic made two submissions on that issue.  Firstly, she observed that for the jury to give a majority verdict on the offence of manslaughter, the judge must be satisfied that the jury is unable to reach a unanimous verdict on murder, and unable to reach a unanimous verdict on manslaughter.[23]
  6. [35]
    Ms Balic’s submission was accepted.  Once the trial judge is satisfied that a unanimous verdict cannot be reached on the charge of murder then, by force of s 59(4), s 59A applies to the alternative charge of manslaughter.  Therefore, before taking a majority verdict on manslaughter the trial judge must be satisfied that the jury is unable to reach a unanimous verdict on manslaughter.
  7. [36]
    A complication is caused by s 59A(2).  When read literally with s 59(4), s 59A(2) might require that, after having left the jury deliberating for the “prescribed period”[24] on the question of murder, and having then determined that “the jury is unable to reach a unanimous verdict”[25] on murder, a trial judge must then require the jury to deliberate on the question of manslaughter for a further “prescribed period” before the discretion to take a majority verdict arises.
  8. [37]
    That is not the proper construction of ss 59 and 59A of the Jury Act.  The provisions must be construed in proper context[26] which here includes the criminal law and procedure of Queensland.  Juries are not instructed to consider and return a verdict on murder before then retiring to consider manslaughter.  A jury retires after the summingup to consider all possible verdicts.  Although, as is explained below, a jury must, subject to ss 59 and 59A of the Jury Act, acquit of murder before returning a verdict on manslaughter, the fact is that after eight hours of deliberation the jury has been considering all verdicts, including verdicts on manslaughter, for “the prescribed period”.
  9. [38]
    Once told by the jury that no unanimous verdict could be reached on murder, a trial judge might invite the jury to consider a unanimous verdict for manslaughter before inviting a majority verdict.  This was not such a case. 
  10. [39]
    As already explained, the jury were, almost inevitably, going to find the four elements of murder proved beyond reasonable doubt.  There was no reasonable prospect of total acquittal.  A unanimous guilty verdict on murder meant a unanimous rejection of provocation.  A unanimous verdict on manslaughter meant a unanimous acceptance of the partial defence of provocation.  A failure to reach unanimity on murder meant a failure to reach unanimity on the partial defence of provocation so there was no prospect of a unanimous verdict on manslaughter.  Once the jury had failed to reach a unanimous verdict on murder, there was no point in inviting them to consider a unanimous verdict on manslaughter.  They were therefore directed in terms of Schedule 1 to these reasons immediately they indicated they could not return a unanimous verdict on murder.
  11. [40]
    Ms Balic’s second submission was in these terms:

“Majority verdict is defined in sub-section (6) as 11 out of 12 jurors in the current trial.

As such, the jury must be directed that for them to return a majority verdict on the offence of manslaughter, they are able to do so in circumstances where 11 of them are unanimous that it is manslaughter and not murder.”

  1. [41]
    Upon a charge of murder, the available verdicts are:
  1. guilty of murder;
  2. not guilty of murder;
  3. guilty of manslaughter;
  4. not guilty of manslaughter.
  1. [42]
    Apart from the operation of s 59 and s 59A of the Jury Act, all verdicts must be unanimous.  A “not guilty” verdict on murder is a unanimous positive finding by the jury that they are left in a reasonable doubt as to guilt on that charge or, a unanimous positive finding of provocation.
  2. [43]
    Putting aside ss 59 and 59A, before a verdict on the alternative count of manslaughter is returned by a jury, there must be a verdict on the count of murder.  In other words, the jury must find an accused not guilty of murder before they can return a verdict of manslaughter.  As observed by Gleeson CJ, McHugh and Heydon JJ in Stanton v R:[27]  “The prosecution was entitled to have the trial judge seek a verdict on the charge in the indictment,[28] and if the jury were unable to agree, either on a verdict of guilty of wilful murder or a verdict of not guilty of wilful murder, then the proper course was to discharge the jury”.[29]
  3. [44]
    Sections 59 and 59A do not sit comfortably with the current situation.
  4. [45]
    Section 59 forbids a majority verdict on murder.  However, there was no real contest that the Crown had proved, beyond reasonable doubt, all four elements of murder.  It is highly likely that the jury were unanimous in those findings.  As a matter of law, provocation does not arise at all unless Mr Peniamina is “a person who unlawfully kills another under circumstances which, but for the provisions of [s 304], would constitute murder”.
  5. [46]
    Section 59 contemplates a failure to reach unanimity on murder and then a majority verdict on manslaughter.  There is nothing to suggest that a majority verdict on manslaughter is not available where manslaughter is to be reached through the partial defence of provocation.  There is no authority which could be found on the issue.
  6. [47]
    In the context of the present case, the jury could only return a verdict of guilty of manslaughter if they either entertained a reasonable doubt as to element 4 (intention) which was highly unlikely the way the case was conducted, or if they were satisfied, on the balance of probabilities, of provocation.  That is the case whether 11 or 12 jurors decide the verdicts.
  7. [48]
    Therefore, ss 59 and 59A of the Jury Act effected two major alterations to the law.  They are:
  1. a jury need not return a verdict of not guilty of murder before returning a majority verdict on manslaughter.  It is sufficient that they are “unable to reach a unanimous verdict”;[30] and
  2. while the jury is not permitted to return a majority verdict on murder, it may return a majority verdict on manslaughter.
  1. [49]
    Ms Balic is correct in her submission that to return a majority verdict on manslaughter, 11 jurors must be unanimous that the offence is manslaughter, not murder, in the sense that to return such a verdict 11 jurors would have to be satisfied that provocation was proved or would have to be satisfied that intention was not proved beyond reasonable doubt.[31]
  2. [50]
    However, I could see no point in putting to the jury that to convict of manslaughter by majority, all 11 would have to be satisfied it was not murder.  Rather than direct the jury what they had not to be satisfied of, it was better to direct them as to what they did have to be satisfied of.  They had already been directed in the summing-up on the two possible bases that they could arrive at manslaughter.  The only change was that such a verdict could be returned by 11, not 12 jurors.  Mr Ryan of counsel for Mr Peniamina accepted that approach.
  3. [51]
    The directions followed this reasoning.

SCHEDULE 1

HIS HONOUR:  I have your note. Thank you. And it appears that you are unable to reach an unanimous verdict on murder. Ladies and gentlemen, you’ve now been deliberating for almost three days and, as I’ve said, you’ve indicated that you can't reach unanimous verdicts. I have decided to invite you to consider whether you can reach a majority verdict on manslaughter.

You will immediately notice that I have not mentioned returning a majority verdict on murder. And the reason for that is because our law does not allow a majority verdict on murder. For the purposes of returning a majority verdict on manslaughter, a majority is regarded as 11. Therefore if 11 of the 12 of you agree on a verdict for manslaughter, whether that verdict is guilty or not guilty then the 11 of you who agree may return a majority verdict.

You will recall that in the summing up I directed you that there were four elements of the offence of murder. They are (1) that Sandra Peniamina is dead; (2) that Mr Peniamina caused Sandra Peniamina’s death; (3) that Mr Peniamina killed Sandra Peniamina unlawfully·and ( 4) that Mr Peniamina intended to kill or do grievous bodily harm to Sandra Peniamina when he killed her.

The first three of those elements are, as I have previously directed you, elements of an unlawful killing; that is, manslaughter. Proof of them beyond reasonable doubt without proof of the fourth element would prove the offence of manslaughter. I directed you in the summing up that if you were satisfied beyond reasonable doubt of all four elements, your focus then changes to consider whether Mr Peniamina had proved that it was more likely than not that he killed on provocation, thus reducing your verdict from murder to manslaughter.

You may return a majority verdict of manslaughter in this case in one of two ways.  If you are satisfied beyond reasonable doubt of elements 1, 2 and 3, but you are not satisfied beyond reasonable doubt that Mr Peniamina intended to kill or do grievous bodily harm to Sandra Peniamina, then he would be guilty of manslaughter, not murder. That is the first way in which you could return a majority verdict of guilty of manslaughter. It would not be necessary for you to further consider provocation.

The second way you may return a majority verdict of guilty of manslaughter is if you are satisfied of all four elements of murder, but you found that when Mr Peniamina unlawfully and intentionally killed Sandra Peniamina, he was acting under provocation, as I have explained that to you.

Therefore, if 11 of you were satisfied beyond reasonable doubt of elements 1, 2 and 3 of murder, but not 4, you would convict by majority Mr Peniamina of manslaughter. If 11 of you are satisfied beyond reasonable doubt of each of elements 1, 2, 3 and 4 and you are satisfied that it was more likely than not that Mr Peniamina was acting under provocation, as I have directed you on that topic, you would return a majority verdict of guilty of manslaughter.

If 11 of you are left in a reasonable doubt as to any one of the first three elements of murder, then you would return a majority verdict of not guilty to manslaughter. If you are able to reach a majority verdict of manslaughter, that is, a verdict upon which 11 of you agree, then you would tell the bailiff and the court would convene. My Associate would then take the verdicts from you in this way.

She would ask you, “Speaker, have the members of the jury reached a verdict on the count that Arona Peniamina murdered Sandra Peniamina on which all 12 members are agreed?” I would expect an answer to that, given your intimation, to be “no”.

If, though, the response of the speaker was that a unanimous verdict had not been reached, which seems to be what I would expect, then my Associate would ask, “Speaker, have the members of the jury reached a verdict on which 11 are agreed on the alternative verdict of manslaughter; namely, that Arona Peniamina unlawfully killed Sandra Peniamina?”

If the speaker said yes to that question, that is, an agreement by 11, the Associate would confirm what the speaker had said with the rest of the jury by saying this, “So say your speaker, so say you all?” If the jury responds affirmatively, then my associate will say, “Speaker, do 11 members of the jury find Arona Peniamina guilty or not guilty of manslaughter; namely, the unlawful killing of Sandra Peniamina?” The speaker will then announce a verdict, the majority verdict, by saying “guilty” or “not guilty”. My associate will then confirm that verdict with the jury in this way, “So says your speaker, so say you 11?” If 11 members of the jury assent, then the verdict will have been given and confirmed. You can go again with the bailiff, please.

Footnotes

[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.

[2]  He had been convicted and successfully appealed, obtaining a retrial; Peniamina v R (2020) 385 ALR 367.

[3] Criminal Code, s 304.

[4] R v Peniamina (2019) 2 QR 658.

[5] Peniamina v R (2020) 385 ALR 367.

[6] Criminal Code, s 302.

[7] Criminal Code, s 304.

[8] Criminal Code, s 291.

[9] Criminal Code, s 644.

[10] The Queen v Nona [1997] 2 Qd R 436.

[11] Peniamina v R (2020) 385 ALR 367.

[12] Criminal Code, s 304.

[13] R v Sabri Isa [1952] St R Qd 269, R v Herlihy [1956] St R Qd 18, R v Buttigieg (1993) 69 A Crim R 21, R v Pangilinan [2001] 1 Qd R 56 and Pollock v R (2010) 242 CLR 233.

[14] R v Green (1997) 191 CLR 334 and Pollock v R (2010) 242 CLR 233 at [60] and [65-[66].

[15] R v Collins; ex parte Attorney-General [1996] 1 Qd R 631 at 639-640.

[16]  (1993) 179 CLR 44.

[17]  Section 59A(6)(a).

[18]  Section 59A(6)(b).

[19]  Section 59(1)(a)(i).

[20]  Section 59(3).

[21]  Section 59(4)(b).

[22]  Section 59(4) read with s 59A.

[23]  Section 59A(2).

[24]  Eight hours.

[25]  Section 59(4).

[26] SZTAL v Minister for Immigration and Border Protection (2017) 262 CLR 362, The Queen v Magennis; The Queen v Vaziri (2019) 93 ALJR 1106.

[27]  (2003) 77 ALJR 1151.

[28]  Murder.

[29]  At [22], with Gummow and Callinan JJ agreeing on this point see [65], although dissenting in the result of the appeal.  And see also Gammage v R (1969) 122 CLR 444 at 453.

[30]  Section 59(4)(a), which must be, relevantly here, a verdict for “murder”:  see s 59(1)(a)(i).

[31]  Assuming that the fourth element of murder was established.

Close

Editorial Notes

  • Published Case Name:

    R v Peniamina

  • Shortened Case Name:

    R v Peniamina

  • MNC:

    [2021] QSC 250

  • Court:

    QSC

  • Judge(s):

    Davis J

  • Date:

    08 Oct 2021

  • Selected for Reporting:

    Editor's Note

Litigation History

EventCitation or FileDateNotes
Primary JudgmentSC679/17 (No citation)24 Sep 2021Date of conviction; retrial ordered in [2020] HCA 47 (reversing [2019] QCA 273); charged with murder (DV offence); pleaded not guilty to murder but guilty to manslaughter; Crown did not accept plea; only issue at trial concerned partial defence of provocation; found guilty of manslaughter by majority verdict.
Primary Judgment[2021] QSC 25008 Oct 2021Reasons for directions to jury; in circumstances where a jury of 12 have been deliberating for eight hours and cannot agree on murder, they may return a majority verdict (11 jurors) on manslaughter, based on the partial defence of provocation, without rendering a verdict on murder or deliberating for any further period: Davis J.
Primary Judgment[2021] QSC 28225 Oct 2021Date of sentence; offender temporarily lost self-control and killed wife in circumstances involving extreme violence and murderous intent; Crown characterised case as in worst category and sought life imprisonment; offending was spontaneous and out-of-character and offender pleaded guilty and was truly remorseful; sentenced to 16 years’ imprisonment with SVO declaration: Davis J.

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