Page:Dayney v The King.pdf/6

Gageler CJ Gordon J Gleeson J Jagot J Beech-Jones J

or whether, as Sofronoff P considered in Dayney [No 1], the final clause modifies the effect of the first two clauses.

4 For reasons to be explained, the Court of Appeal was correct, and the appeal must therefore be dismissed. The final clause of s 272(2) specifies an independent condition that operates to deny the protection in s 272(1), in a case where the accused uses force which causes death or in a case where the accused uses force which causes grievous bodily harm, unless the accused first retreated from the conflict before engaging in such force.

The proceedings below

5 In October 2014, the appellant was involved in a violent altercation resulting in the death of Mark Spencer.

6 The appellant first stood trial before Douglas J and a jury in the Supreme Court of Queensland charged with Mr Spencer's murder. The Crown case was that the appellant killed Mr Spencer during a planned burglary of Mr Spencer's home. At trial, the appellant testified that Mr Spencer pulled out a gun immediately after he entered Mr Spencer's lounge room and that everything he did after that point was done for the purpose of saving his own life or that of his girlfriend, who was present at the time.

7 In response to a question from the jury concerning s 272 of the Code, Douglas J instructed the jury in the following way:

""If you conclude that Mr Dayney's appearance about 3.30 am in Mr Spencer's house, dressed in dark clothes, with his head wrapped in a dark shirt, amounted to provocation of an assault from Mr Spencer, and that Mr Spencer pulled out a gun, then the defence does not apply unless, before Mr Spencer pulled out the gun, Mr Dayney declined further conflict and quitted it, or retreated from it, as far as was practicable.""

8 The jury convicted the appellant, who appealed the conviction on grounds which included that Douglas J misdirected the jury on the application of s 272(1) of the Code. In Dayney [No 1], the Court of Appeal, comprising Sofronoff P, Fraser and McMurdo JJA, allowed the appeal and ordered a retrial.

9 However, a majority, Fraser and McMurdo JJA, rejected the misdirection ground, concluding that, on the proper interpretation of s 272(2) of the Code, "self-defence [under s 272(1)] … could be excluded by proof that, as far as was