Issue: Scope and limits of implied licence.įacts: The respondent woman was the subject of a DVO that protected her male domestic partner (Mr Johnson, the victim). Proceedings: Appeal from the decision of the Northern Territory Court of Appeal O'Neill v Roy NTCA 8 (4 September 2019). Note: The appellant was subsequently retried and convicted of manslaughter (the sentencing judge found that the jury accepted the partial defence of provocation, and that the appellant’s belief that the victim had been unfaithful was reasonable) and resentenced: R v Peniamina (No 2) QSC 282 (25 October 2021). The trial judge was wrong to direct the jury that, in addition to proving the elements of the defence, the appellant was required to prove that his loss of self-control was not based on anything done by the deceased to change the relationship. It was therefore not open to find that the defence was excluded under s 304(3). There was no evidentiary foundation to suggest that the conduct with the knife was itself a thing done to change the relationship. Here, it was the appellant’s defence that it was the deceased’s conduct with the knife that induced his loss of self-control. Whether the defence does not apply is a question of law. The majority (Bell, Gageler and Gordon JJ) found that, correctly understood, s 304(3) excludes the defence of provocation where the accused was in a domestic relationship with the deceased and his/her loss of self-control was induced by anything done (or believed to have been done) by the deceased to change the relationship. Grounds of appeal: The Court of Appeal erred in holding that the exclusion of the defence of partial provocation pursuant to the exception in s304(3) was not confined to the provocative conduct of the deceased which the defence relied upon as causative of the appellant's loss of self-control. On appeal, the Queensland Court of Appeal held that the trial judge was entitled to direct the jury to consider whether the exception set out in s 304(3) excluded the availability of the partial defence under s 304(1). But the appellant’s case was that, for the purpose of s 304(1), his loss of self-control was ’based on’ the deceased “grabbing knife, threatening with it and cutting his right palm.” The jury found the appellant guilty of murder. ![]() The appellant killed his wife in circumstances that left it open to find he was angered by a belief that the deceased had been unfaithful and planned to leave him. The issue raised by the appeal is whether in discharging this burden the appellant was required to prove that the provocation was not "based on" anything done (or believed to have been done) by the deceased to change the relationship, notwithstanding that such conduct (or believed conduct) was not the conduct that he claimed had induced his loss of self-control. The 2011 amendments placed the burden of proof of the defence on the accused. Section 304 was amended in 2011 to exclude the defence (save in circumstances of a most extreme and exceptional character) in the case of the unlawful killing of the accused's domestic partner where the sudden provocation is “based on anything” done by the deceased, or anything the accused believes the deceased has done, to end or to change the nature of the relationship or to indicate in any way that the relationship may, should or will end or change. Facts: The appeal concerned the partial defence of provocation, which operates to reduce what would otherwise be murder to manslaughter, under s 304(1) of the Criminal Code (Qld).
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