Peniamina v The Queen [2020] HCA 47

HIGH COURT OF AUSTRALIA

BELL, GAGELER, KEANE, GORDON AND EDELMAN JJ

ARONA PENIAMINA APPELLANT

AND

THE QUEEN RESPONDENT

Peniamina v The Queen [2020] HCA 47 Date of Hearing: 15 October 2020 Date of Judgment: 9 December 2020 B32/2020

ORDER

1. Appeal allowed.

2. Set aside the order of the Court of Appeal of the Supreme Court of Queensland made on 29 November 2019 and, in lieu thereof, order that the appeal to that Court be allowed and the appellant's conviction be set aside and a new trial be had.

On appeal from the Supreme Court of Queensland

Representation

M J Copley QC with K Prskalo for the appellant (instructed by Legal Aid Queensland)

T A Fuller QC with D Balic for the respondent (instructed by Office of the Director of Public Prosecutions (Qld))

Notice: This copy of the Court's Reasons for Judgment is subject to formal revision prior to publication in the Commonwealth Law Reports.

CATCHWORDS

Peniamina v The Queen

Criminal law – Defences – Provocation – Where appellant killed his wife in circumstances that left it open to find he was angered by belief she had been unfaithful and planned to leave him – Where appellant pleaded not guilty to murder on basis that killing resulted from loss of self-control caused by provocation by deceased – Where appellant contended at trial that state of loss of self-control excited by deceased's conduct in grabbing knife, threatening him with it and cutting his right palm – Where s 304(3) of Criminal Code (Qld) excluded defence of provocation (save in circumstances of most extreme and exceptional character) in case of unlawful killing of accused's domestic partner where sudden provocation "based on" anything done, or believed to have been done, by deceased to end or change nature of relationship or indicate in any way that relationship may, should or will end or change ("to change relationship") – Whether exclusion of defence in s 304(3) confined (save in circumstances of most extreme and exceptional character) to cases where conduct of deceased relied upon as causative of accused's loss of self‑control consists of thing done, or believed to have been done, by deceased to change relationship – Whether operation of s 304(3) to exclude defence question of law.