R v Dayney

This case is about the proper construction of Criminal Code 1899 s 272 which provides a complete defence described as “self-defence against provoked assault.” Subsection (1) creates a “protection” from criminal responsibility in certain circumstances where a person uses force that causes death or grievous bodily harm, but the person provoked the assault. Subsection (2) contains qualifications to that protection. The last clause of the text of subsection (2) has been described as “unclear”, “obscure” and “peculiar” because it starts with the words “nor, in either case, unless”. The appeal turned on whether the clause that starts with these words provides a third independent qualification to subsection (1) (the “first approach”) or merely modifies the effect of the first two qualifications in subsection (2) (the “second approach”). The trial judge directed the jury using the first approach. This approach was preferred by the majority in R v Dayney [2020] QCA 264. Justice Dalton (with whom Mullins P and Boddice J agreed) held that the first approach was the correct one. There was no miscarriage of justice. The appeal was dismissed.

Mullins P and Dalton JA and Boddice J

6 April 2023

Background

The appellant had previously appealed against conviction: see R v Dayney [2020] QCA 264 (Sofronoff P and Fraser and McMurdo JJA) (the “previous appeal”). [2]. The appellant was successful in the previous appeal and a retrial was ordered. [2]. Whilst the members of the Court of Appeal in that case agreed in the result, their Honours were divided on the construction of Criminal Code 1899 s 272 which provides for a defence of “self-defence against provoked assault”. [2]. The majority (per Fraser and McMurdo JJA) preferred a construction that subsection (2) contains three independent qualifications to the protection in subsection (1): see [35]–[37] (the “first approach”). The minority (per Sofronoff P) preferred a construction that the last clause “qualified” the effect of the first two clauses: see [28]–[34] (the “second approach”). The trial judge adopted the first approach in the appellant’s retrial, however, the appellant argued that this was an error and that the second approach ought to have been preferred. [3]. It was accepted that to be successful in the appeal the appellant was required to persuade the Court of Appeal that the majority in R v Dayney [2020] QCA 264, which had preferred the first approach, was “plainly wrong”. [3]. The text of Criminal Code 1899 s 272 provides as follows:

“272 Self-defence against provoked assault

(1)When a person has unlawfully assaulted another or has provoked an assault from another, and that other assaults the person with such violence as to cause reasonable apprehension of death or grievous bodily harm, and to induce the person to believe, on reasonable grounds, that it is necessary for the person’s preservation from death or grievous bodily harm to use force in self-defence, the person is not criminally responsible for using any such force as is reasonably necessary for such preservation, although such force may cause death or grievous bodily harm.

(2)This protection does not extend to a case in which the person using force which causes death or grievous bodily harm first begun the assault with intent to kill or to do grievous bodily harm to some person; nor to a case in which the person using force which causes death or grievous bodily harm endeavoured to kill or to do grievous bodily harm to some person before the necessity of so preserving himself or herself arose; nor, in either case, unless, before such necessity arose, the person using such force declined further conflict, and quitted it or retreated from it as far as was practicable.” [8]. (emphasis in original)

Whether the trial judge misdirected the jury about the qualifications to self-defence against provoked assault

Justice Dalton (with whom Mullins P and Boddice J agreed) held that the first approach to the construction of Criminal Code 1899 s 272 was the correct one, and as such, her Honour was not satisfied that this approach, which was preferred by the majority in R v Dayney [2020] QCA 264, was “plainly wrong”. [5]. Justice Dalton considered a number of authorities decided prior to R v Dayney [2020] QCA 264 before analysing the text, context and purpose of Criminal Code 1899 s 272: see [14]–[27], [38]–[54]. It was acknowledged that the text of the last clause in subsection (2) is ambiguous. [40]. However, her Honour went on to observe that a close examination of the context of subsection (2), which was “indirectly” based on the common law at the time of its enactment, was a “strong indicator” in favour of the proposition that that the last clause was intended to be an independent qualification to the protection in subsection (1). [55]–[57]. It was unnecessary to apply the rule of strict construction because Criminal Code 1899 s 272 could be construed with the assistance of its context without having to apply this rule, which is, a “rule of last resort”. [67]–[68]. Justice Dalton observed, in obiter, that statutory reform of the law of self-defence in Queensland is long overdue. [76].

Disposition

The appeal was dismissed. [1], [6], [77].

D Kerr