Page:Dayney v The King.pdf/7

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

practicable, the accused person did not decline further conflict, and quit it or retreat from it, before it became necessary to preserve himself or herself".

10 Sofronoff P would have upheld the misdirection ground. Consistently with reasoning of the Court of Criminal Appeal of the Supreme Court of Western Australia in Randle v The Queen, his Honour construed the third clause of s 272(2) as operating "to deny an accused, whose case fits into the two kinds of cases referred to in the subsection, a legal excuse for killing unless the accused first removes the necessity (which the accused created) for the deceased to use lethal force".

11 At the retrial, before Bowskill SJA and a jury, the appellant was convicted. He appealed that conviction on two grounds, including that Bowskill SJA erred by adopting Fraser and McMurdo JJA's interpretation of s 272(2) in instructing the jury. A differently constituted Court of Appeal (Mullins P, Dalton JA and Boddice J) dismissed the appeal in Dayney [No 2]. Dalton JA, with whom Mullins P and Boddice J agreed, held that the interpretation of s 272(2) adopted by Bowskill SJA was correct.

The proper construction of s 272(2)

12 The Code is to be construed "without any presumption that it was intended to do no more than restate the existing law". Though the parties drew attention to the potential interpretative relevance of the Draft of a Code of Criminal Law prepared by Sir Samuel Griffith for the Government of Queensland and the letter from Sir Samuel to the Attorney-General, dated 29 October 1897, under cover of which that draft was submitted, neither party submitted that those documents bore meaningfully on the construction of s 272(2).