Gageler CJ
Gordon J
Gleeson J
Jagot J
Beech-Jones J
3.
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".[1]
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,[2] 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".[3]
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.[4]
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".[5] 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).
