R v Howe [1958] HCA 38

fied beyond reasonable doubt that one or other or all of the ultimat which establish that plea are not present.

Chan Kau v. The Queen (1955) A.C. 206, at pp. 211, 212, referred

Where a plea of self-defence to a charge of murder fails only b death of the deceased was occasioned by the use of force going b was necessary in the circumstances for the protection of the accused 0 might reasonably be regarded by him as necessary in the cirem in the absence of clear and definite decision, reasonable in principle such a homicide as reduced to manslaughter.

So held by Dixon C.J., McTiernan, Fullagar, and Menzies JJ.

Per Taylor J.: The test to be applied by a jury in cases where s¢ as justification is rejected rests upon a broader basis than the hor unreasonable, belief of the accused. It is sufficient if it appears that w

an aggressor and the jury should be instructed that unle; reasonable doubt that this was not so a verdict of manslaughter sh returned.

To retreat before employing force is no longer to be treated as an ind ent and imperative condition if a plea of self-defence is to be Whether a retreat could or should have been made is merely an the jury to consider as entering into the reasonableness of the con accused.

In the absence of very special circumstances it is not the pra High Court to entertain an application for special leave from an 0

'aside a capital conviction and granting a new trial if there be no other ground {for the application save that the State Court of Criminal Appeal ought to have taken a different view of the evidence or ought not in the particular case to have regarded some specific direction to the jury as necessary or ought, not- withstanding that some error of law appeared, to have held that no substantial 'miscarriage of justice had occurred.

Decision of the Court of Criminal Appeal of South Australia: Reg. v. Howe (1958) 8.A.S.R. 95, affirmed.

peat from the Court of Criminal Appeal of South Australia.

On 24th to 27th March 1958 Malcolm Horace Howe was arraigned fore a judge and jury in the Supreme Court of South Australia criminal jurisdiction, at Port Pirie, in that State upon a charge murder of one Kenneth Frederick Millard near Port Pirie id on 13th November 1957. He pleaded not guilty; and to the charge raised an issue of self-defence, alleging that

ng an attempted sodomitical attack being made on him by deceased. The jury found him guilty of the crime charged, a recommendation to mercy to its verdict, and he was sen- tenced to death.

hereafter Howe applied to the Full Court of the Supreme Court ith Australia sitting as a court of criminal appeal (Mayo and 1JJ., Piper A.J.) for leave to appeal against the conviction and

That court granted the application and, treating the

g of the application as the hearing of the appeal, allowed the quashed the conviction and ordered a new trial: Reg. v. pe (1). om this decision the Crown by special leave appealed to the ligh Court. her relevant facts appear in the judgments of the Court

. St. C. Chamberlain Q.C. and W. A. N. Wells, for the appel-

. R. St.C. Chamberlain Q.C. Special leave having been granted he whole case is opened up for decision by this Court and the ellant is at liberty to argue that there was no evidence of an of self-defence to go to the jury. The duty of the trial judge sum up on the basis that the respondent's story was at least nable possibility, and this he did. Even if true, it provided ial for any defence at all. [He referred to Stephen's Digest

H.C. or A. of the Criminal Law, 9th ed. (1950), art. 305, pp. 251, 252 ;

1958. _y, Director of Public Prosecutions (1); Holmes v. Director of

eeantea Prosecutions (2) ; and R. v. Semini (3)]. An analysis of the men

">. in the proposition of the Full Court as to an excessive use of fo

Howe. - in circumstances where a plea of self-defence would othe

~~ available shows it to be foreign to the concepts under; branch of the law.

[McTiernan J. referred to Halsbury's Laws of England, 3rd

The proposition finds no place in the principles governin

elements in murder and the circumstances in which a plea of

defence may be raised. It was within the province of the jury

find the respondent guilty of manslaughter in the ci

stated by the Full Court but equally it was within its provi

find him guilty of murder in those circumstances. [He referr

Mraz v. The Queen (5).| The Full Court erred in suggesting

there was here a species of provocation. Provocation does

since Holmes v. Director of Public Prosecutions (2), negati

intent to kill. [He referred to Attorney-General for Ct

Kumarasinghege Don John Perera (6).] It can be murder if,

of self-defence having failed, the jury is satisfied that the

was one with malice aforethought. The Full Court's proj

denies that as a matter of law. Mancini v. Director of

Prosecutions (1) is inconsistent with the Full Court's view that

was in this defence something akin to provocation and also

view of the existence of the principles relied upon by it.

referred to Reg. v. McKay (7)]. The only manslaughter th

available on the facts of this case was the one based on proyoe

and that was adequately dealt with by the trial judge.

referred to Reg. v. Terry (8) and Archbold's Criminal P

Evidence & Practice, 33rd ed. (1954), par. 1649, pp. 941, 942.)

principles are inconsistent with the Full Court's propo:

the Full Court's proposition be right, then here there was 0

a case for a new trial. It is an abstract statement of the la

even so it would lead to a re-trial only if there were facts to

the application of such a principle of law to the facts of

The proposition as a matter of law is wrong and misl

should not be allowed to remain as a proposition of law which v

be taken as binding on other courts, at all events in South A

(2) (1946) A.C. 588. (6) (1953) A.C. 200, at p. 206, (3) (1949) 1 KB, 405, (7) (1957) V.R. 560, at p. 562 - (4) (1884) 15 Cox C.C. 540, at p. 541. (8) (1955) V.L.R. 114, at p-

e was no real material in this case for the disturbance of the of the jury.

W. A. N. Wells. None of the authorities upon which the pro- on of the Full Court was based contains a discussion of the nee of the qualification as to the existence of an honest belief that the force used was considered necessary. In none of them is e any suggestion that, where there is a clear intention to kill or inflict grievous bodily harm, because the unlawful violence ed from acts commenced in self-defence that, therefore, ' f murder isnot open. [He referred to Reg. v. McKay (1) ;

y. Scully (2) ; and Cook's Case (3).] The Full Court's proposition,

. v. McKay (4), is only valid where there is an absence of either intent to kill or an intent to do grievous bodily harm as now [On the defence of "home and family" and " self- ' he referred to R. v. Barilla (5); R. v. Hussey (6); The wealth v. Beverly (7); Mead's and Belt's Case (8); Reg. v. ith (9); Reg. v. Odgers (10); and R. v. Symondson (11).]

'[Drxon C.J. referred to R. v. Patience (12) and R. v. Whalley (13).] slight battery followed by death would not be murder. [He to Cook's Case (3); R. v. Biggin (14); R. v. Griffin (15) ;

kin's Case (16); Reg. v. Weston (17); and Cross and Jones, An oduction to Criminal Law, 3rd ed. (1953), art. 124, p. 247.] All the show that if a person has exceeded by accident or by degree amount of force which would be justified by the circumstances in 3 himself, it is in the highest degree improbable that he d have reached the stage of forming an intention to kill. [He to Reg. v. McCarthy (18).] The intention to kill is the cisive element; if there is no intention to kill, it is manslaughter ; if there is an intention to kill, it is murder. Simply because honest belief of the type postulated was arrived at following on e which began as self-defence, does not necessarily and for

(1824) 1 Car. & P. 319 [171 ER. (1640) Cro. Car. 537 [79 E.R.

(12) (1837) 7 Car. & P. 775, at p. 776 (173 E.R. 338).

(13) (1835) 7 Car. & P. 245, at p. 249 [173 E.R. 108, at p. 110).

(15) (1871) 10 S.C.R. (N.S.W.) 91, at pp: 99, 100, 107.

(17) (1879) 14 Cox C.C. 346, at p. 351. (18) (1954) 2 Q.B. 105.

all purposes and universally reduce what is otherwise murder manslaughter. [He referred to R. v. Nundah (1); and Re Terry (2).] There is no suggestion in any of the authorities th provided one makes out an intention to kill which results in a unlawful act, viz. a killing, one has to go further and exclude honest belief that what one has done is justified by the circu e [Drxon C.J. referred to R. v. Patience (3); R. v. Whalley R. v. Weston (5) and R. v. Burdett (6).] The defence of provocation is not a denial of malice afore' it is merely a concession to human frailty. On the definitions general consideration of malice see Stephen's Digest of the Law, 9th ed. (1950), art. 264, pp. 211-214; Archbold's Cri Pleading, Evidence & Practice, 33rd ed. (1954), par. 1628, pp. 930, and Russell on Crime, 10th ed. (1950), vol. I, pp. 533, 5i

Dr. J. J. Bray Q.C. (with him L. J. King), for the respon The Crown errs in now suggesting that the facts did not any direction on self-defence or manslaughter in relation to sé defence. That submission is not open because it was not pi the court below that self-defence should not have been left to th jury. That point is taken for the first time in this Court. Sp leave would not have been granted on that ground and the should not now be taken. There is evidence fit to be consid the two issues of self-defence and manslaughter ; it shows that th accused had no intention to kill. There is also evidence to be co sidered on whether he acted in self-defence but went beyond thi necessities of the occasion. The authorities show that there i form of manslaughter arising out of excessive self-defence. jury were not told that in these circumstances it may be mani laughter or it may be murder. The trial judge erred in telling jury that even if it thought that it was necessary to fire the she the accused was still not entitled to be acquitted if he did not re as far as possible. The vice in the direction in this case was th same as the vice in the direction in Brown v. United States (7). [B referred to Brown's Case (8) and to Archbold's Criminal Plead Evidence & Practice, 33rd ed. (1954) par. 1638, pp. 934, 935, p 1652, pp. 943, 944.] Modern text-writers do not suggest that distinction between homicide committed in self-defence and jus

(1) (1916) 16 S.R. (N.S.W.) 482; 33 (5) (1879) 14 Cox C.C. 346.

W.N. 196. (6) (1820) 4 B. & Ald. 95; 314 [10 (2) (1955) V.L.R., at p. 117. E.R. 873; 952]. (3) (1837) 7 Car. & P.775 [173 E.R. (7) (1920) 256 U.S. 335 [65 Law. Bd 338]. 961).

(4) (1835) 7 Car. & P. 245 [173 E.R. (8) (1920) 256 U.S., at p. 343 (65 108). Ed., at p. 963].

homicide has been abolished : Kenny's Outlines of the Criminal (1952), p. 114; Russell on Crime, 10th ed. (1950), vol. I, p. 494; Criminal Law, 19th ed. (1954), p. 255. The jury should been directed that if the deceased was trying to commit the of sodomy on the accused by force he, the accused, was not bound ¢ as in other cases of self-defence, but was entitled to stand his ground and kill if it were necessary to do so, The rule relied upon in the case of justifiable homicide applies to any violent mious attack. [He referred to Halsbury's Laws of England, 3rd. vol. 10, pp. 721, 722, pars. 1382, 1384.] The accused had been ked and had reasonable grounds for apprehending further

'ayLor J. referred to Russell on Crime, 9th ed. (1936), vol. I, 1)

'ion; it failed to deal with the manslaughter element in n to self-defence. The analogy to R. v. Barilla (1) is very ed. [As to retreat he referred to Reg. v. Bull (2); Beard v.

States (3); Brown v. United States (4); and Reg. v. Kay (5).] The sixth proposition of Lowe J. in Reg. v. McKay (5) s out the three typical cases of justifiable homicide. If an 's intention is not to kill but to defend himself, he is guilty of neither murder nor manslaughter. An intention to kill and an n to protect oneself are in two different categories of thought : word " intention " is not used in the same sense. [He referred en's General View of the Criminal View of England, 1st ed. ), pars. 3, 4 (a) to (e) ; R. v. Scully (6) ; Cook's Case (7) ; Coke's s, Pt. 3, (1817), vol. 3, p. 50.] On the question of illegal e: see R. y. Thompson (8). The intention to kill or inflict us bodily harm was clearly present in The Commonwealth erly (9). According to Blackstone the unlawful, intentional of another without malice is manslaughter. [He referred y. Barilla (1); R. v. Griffin (10); R. v. Symondson (11) 5 . Biggin (12); Mancini v. Director of Public Prosecutions (13) ;

(1) (1044) 4 D.L.R. 344. (7) (1640) Cro. Car. 537 [79 E.R. (2) (1839) 9 Car. & P. 22, at p. 24 [173 1063).

ER. 723, at p. 724]. (8) (1825) 1 Mood. 80 [168 E.R. 1193]. 3) (1894) 158 U.S. 550, at pp. 554, (9) (1935) 237 Ky. 35. 557, 564 [39 Law Ed. 1086, at (10) (1871) 10 8.C.R. (N.S.W.), at pp.

Ts -1090, 1092). 99, 100, 104, 105, 107. ) Wh Ree US. 335 ibs Law Ed. (11) (1896) 60 J.P. 645.

(lash VR. 560. (13) (1942) A.C., at p. 6. (1824) 1 Car. & P. 319 [171 E.R. 1213).

H.C. or A. Reg, v. Weston (1); R.v. Thomas (2); Reg. v. Welsh (3), 1958. on Crime, 10th ed. (1950), vol. I, pp. 563, 565, 572; and eee Pleas of the Crown (1803), vol. I, p. 224.] The suddenly

v. intention to kill or cause grievous bodily harm in cireums' How. those in the present case is only malice aforethought by implicat of law, and the circumstances of the illegal attack rebut that impli tion, so that it is not malice aforethought at all to form that int tion under these circumstances. Before the middle of the |; century malice aforethought did not necessarily mean intention kill: see Russell on Crime, 10th ed. (1950), vol. 1, p. 568, referred to Mead and Belt's Case (4); Forster's Case (5).] respondent relies upon the passage in Oross and Jones, An Inti duction to Criminal Law, 3rd ed. (1953) art. 124, p. 247: see a Dicey's Law of the Constitution, 8th ed. (1915), Appendix 4, pp. 4 494. The law is accurately, and for the present purposes, complet stated by Lowe J. in his sixth proposition ; alternatively, if ther a self-defence occasion, and particularly a violent and fe attack, and the accused acts beyond the necessity of the occasi¢ the offence is manslaughter, not murder, unless he was not in good faith for his own defence. [He referred to Halsbury's of England, 3rd ed., vol. 10, par. 1382, p. 721.] The test of reas ableness is a subjective one, not an objective one. [He referred |

R. v. Duffy (6) ; Re Manning (7) ; R. v. Fisher (8) ; Russell on 01 10th ed. (1950), vol. I. pp. 564, 565, 572; <Archbold's Crimin Pleading, Evidence & Practice, 33rd ed. (1954), par. 1647, p. 9 articles by Dr. Glanville Williams and Dr. J. Ll. J. Edwards, (195 Criminal Law Review, pp. 740-742, 898 ; Holmes v. Director of Pul Prosecutions (9), and R. v. Cole (10).] In all cases of justifi homicide there must be a reasonable and honest belief by accused in the necessity of the killing otherwise it would be w Lowe J. described as "' malice under colour of necessity " unreasonable verdict may be set aside by the Full Court on ap Criminal Law Consolidation Act 1935-1956 (S.A.), 8. 353 (i). test is: would a jury, if properly directed, have inevitably C the same conclusion: see R. v. Sheehan (11);

(1) (1879) 14 Cox C.C., at p. 352. (7) (1671) Raym. T. 212 [83

2. Patt 7Car.& P.817 (173 ER. (8) (1887) 8 Car, & P. 182 [173 56]. 45: 4

(3) (1869) 11 Cox C.C. 336. (9) (oss) AC., at p. 598.

(4) (1823) 1 Lewin 184 [168 E.R. (10) (1941) 28 Cr. 1006). (11) (1926) 8.

(5) (1825) 1 Lewin 187 [168 E.R. (12) (1944) A.C. 315.

(13) (1958) 1 Q.B. 1, at p. U1. (6) (1949) 1 AU E.R. 932.

cts favour the respondent. There is evidence from which it can d that the accused believed that he was going to be the of a sodomitical attack, and it eons that he had no

V Thiele @); R. v. Rogers (4) ; "ean aie v. The rec 1 conscience in this case would be sufficiently satisfied by a tion for manslaughter. A submission like this is open even | application for special leave to appeal: R. v. Mullen (6). For going reasons the appeal should be dismissed. This Court,

should not interfere with the exercise by the Full Court of etion with regard to the application of the proviso, and

ld be rescinded rather than deprive the accused of the right

he has acquired under the order of the Full Court. If this is of opinion that any jury must have convicted the accused slaughter at least, then this Court should substitute a con- on for manslaughter for the order for a new trial and the tter should be referred back for sentence to the Court of Criminal in South Australia.

R. R. S.C. Chamberlain Q.C., in reply. Cur. adv. vult.

ww C.J. This appeal comes by special leave from the Supreme itt of South Australia sitting as a court of criminal appeal. The pellant is the Crown. The order of which the Crown complains a conviction of murder and ordered that a new trial be the information charging the respondent with that crime : Howe (7). The Crown applied to this Court for special leave al on the ground that the decision of the Supreme Court $a question or questions of law affecting the law of homicide are of wide importance. The decision in fact was the con- e of two propositions relating to self-defence as a plea which id down by the Supreme Court.

e first concerned the question whether it is an essential con- of the plea as a matter of law that the defendant in face of a (5) (1957) A.C. 635.

violent and felonious assault, or the threat of such an should have retreated as far as it was reasonably open for him to do before meeting the attack with force. The court denie this was a rule of law and put a failure to retreat in the ¢ only of an element in the considerations upon which the ableness of the defendant's conduct must be judged. The at all events on the hearing of this appeal, objected not so mi the view of the law thus adopted by the Supreme Court as manner in which it had been applied in considering the effe the charge to the jury of the judge presiding at the trial. second and more important proposition related to the effect of excessive use of violence on the part of a defendant who but fort would be able to make out a plea of self-defence as an answer charge of murder. If death ensues because he has resorted unnecessary measure of force in resisting an attack or threater attack, a degree of force out of reasonable proportion to the dan does that leave the defendant guilty of murder or is his e1 manslaughter ? The Supreme Court answered the question t "We have come to the conclusion that it is the law that a p who is subjected to a violent and felonious attack and ¥ endeavouring, by way of self-defence, to prevent the consi of that attack by force exercises more force than a reasonable n would consider necessary 'in the circumstances, but no more than he honestly believes to be necessary in the circumstane guilty of manslaughter and not of murder " (1). This propositior Crown contests. It is right to add that on the hearing of the as distinguished from the application for special leave, the a1 for the Crown seemed to dwell rather on the precise scope 0 proposition and its applicability to the facts of this case than on question whether in essence it represents the present state 0 law of homicide.

The applicability of the principle formulated depends upon case made by the respondent at the trial in his defence. complexion he sought to put upon the circumstances in homicide took place of which he was accused had no relatio case made for the Crown and it is not surprising that, special lt having been obtained, the tendency should assert itself on the si the prosecution to seek to vindicate the conviction by refe the support which the evidence may be regarded as pro' the case for the defence rather than by a frontal attack more abstract question whether a general rule sound in p has been accurately formulated by the Supreme Court.

ions must be made upon this attidude. In the first place be borne in mind that in discharging its functions as a criminal appeal the Supreme Court closely considered the

consequences of the direction given by the learned judge ; is true also in respect of the contention that no substantial e of justice had occurred. In the second place it would accordance with the practice of this Court to entertain an ion for special leave from an order setting aside a capital

application except that the State Court of Criminal Appeal it to have taken a different view of the evidence or ought not in icular case to have regarded some specific direction to y as necessary or ought notwithstanding that some error aw appeared to have held that no substantial miscarriage of ice had occurred. case made for the Crown at the trial was one which, for all appears, the jury may have adopted in full. But the Supreme took the view that it was possible that the jury might have different verdict had they received a different direction in it of law. It is not for this Court to intervene at the instance of for the purpose of reconsidering such a question as the ity of a different verdict being reached under a direction conformed more exactly with law; and the fact that the n has obtained special leave because it is an important question t the state of the law is as the Supreme Court supposed ould not lead us to allow the Crown to proceed to the further tion whether, assuming the Supreme Court to be right in its of the state of the law, that court was justified in regarding any mey or inaccuracy in the direction given as possibly account- 'the verdict. Our consideration of the appeal should therefore ed to the general questions of law upon which the grant of leave was based. is however necessary for the understanding of these questions to brief outline of the case for the Crown and of the case which the nt sought to make. According to the case for the Crown the ndant murdered a man named Millard on 13th November 1957, ort Pirie for the purpose of robbing him of money. Millard a man of about thirty-six years of age whose occupation was a On 14th November 1957 at about nine o'clock in the his dead body was found by the roadside against the fence. been shot dead by a bullet which entered the thorax from ck through a gunshot wound under the right shoulder-blade.

Some ninety yards nearer to Port Pirie an empty wallet was the roadside. It appeared that Millard had drawn a substa of cash on the previous day. He had served in the bar w finished his day's work at about twenty minutes to seven left the hotel. There is no doubt that the deceased drove ou evening with the defendant and that it was the defendant him and dragged his body to the roadside. Nor is dispute that the defendant took his money, a sum of £81, a his wallet away. So much appears from a statement or staten obtained by the police from the defendant. Accordingly th for the Crown was that it was simply murder to rob. The defendant's story endeavoured to place quite another as, the case. This aspect best appears from the evidence w gave at his trial, although there are other statements made attributed to him. He was a young man of twenty-three yea age, living at Port Pirie with his parents. He knew Millard. stated the defendant's evidence was to the following e' He arranged to go with Millard to a drive-in picture theatre on night upon which Millard met his death. He joined Millard on latter's finishing his work. Each had a car and they drove to' ard's room where they drank for a time. They then left room. The latter obtained a bottle of wine from his own took his seat in the defendant's car. They drove off p drive-in theatre. At the bottom of the car was a .22 repe Remington rifle. It belonged to the defendant's father a been left there by the defendant loaded after he had been rabb on the evening before. They drove out in order to drink and they proceeded to do this listening to the wireless of tl when suddenly Millard leaned over tore open the fly of the d ant's trousers and touched his private parts. The defendan him to get out of the car saying that he the defendant was not t chap to do that sort of thing. Millard got out and so did defendant. Millard walked to the front of the car and for eight or nine paces beyond. The defendant walked over tow: him; why he did not know, so he deposed. However Mi at him and grabbed him by the shoulders from behind. defendant started to run, he believed ; Millard tore his shirt bt got free from him. The defendant's evidence proceeds " for the car, got the rifle out from the front seat and in my al put it up and shot him. When I did that he was about ei nine paces to the front of the car from me. I don't know was doing. When I fired, I was too angry and all mixed up I di know which way he was facing. I only fired one shot."

nt said that when Millard caught hold of him round the and tore his shirt, he knew what perverts do " and things i"; in his own mind he thought Millard was about to attack ally and he did not think he could keep him off with his His evidence describes his position by the car and goes on hen I fired the shot, I intended to stop him from further attacks. at's what I say now. I didn't think at all about whether I was ly to kill him. The thought never came into my mind. I was fhim. I was angry with him. I didn't think about what I going to do. It all just came as soon as he grabbed me." The defendant then recounted how he tried to lift the body the car and then failing that dragged it to the roadside. He wallet in the deceased's pocket and took it. He knew that rd was carrying money but had not seen the wallet earlier. defendant drove off, took the money from the wallet as he did threw the wallet away. His subsequent movements that bear only on the function of the jury not of the court. But rally they were the subject of comment: for he went first to e theatre and then after replacing his father's rifle went ito a social of a football club. the foregoing evidence the defendant's counsel put before the ry a plea of provocation whereby the degree of guilt of the defend- ould be reduced from murder to manslaughter. It must be n that this plea was rejected by the jury. But in this Court for purposes the plea and its rejection may be disregarded. the defendant's counsel also put forward a plea of self- . In dealing with that plea and the direction to the jury h it called, it must not be forgotten that once it is raised evidence the jury, before they can convict of murder, must be

nee upon which a plea of self-defence may arise, it is to a conviction of murder that the jury shall be satisfied nd reasonable doubt that one or other or all of the ultimate which establish that plea were not present. That appears to be of the modern law: see Chan Kau v. The Queen (1).

e next place the interpretation of the defendant's evidence was matter for the jury and it was open to them to interpret it as icien proof of a fear of a sodomitical attack. At all events they not be satisfied beyond reasonable doubt of the contrary. of that nature would be felonious as well as violent: s. 69

of the Criminal Law Consolidation Act 1935-1952 (8.A.). Bi attempt or an assault with intent to commit the felony or an. assault on the defendant would amount only to a misdeme; s. 70. In either case the defendant's alleged apprehension an unlawful attack of a violent nature. i In the Supreme Court the direction to the jury on this given by the learned judge at the trial was closely consi its effect was summarized in their Honours' reasons. the Supreme Court took was that the jury had been pla "that where a person charged with the murder of an ass relies on self-defence, he cannot succeed, and has no defence at if the jury are satisfied that the killing took place either (1) whe accused has not retreated as far as possible having regard ti attack; or (2) if he has used more force than is necessary f¢ defence, the result in both cases being that the person who ki guilty of murder ". The foregoing account of the learned judge's direction to the forms the basis of their Honours' judgment and for the purp of the appeal we should accept it as the starting point. It seen that the second proposition which this summary of direction formulates raises the question whether, where upon indictment for murder the accused relies on self-defence asa p all the elements of that defence are made out except that relates to the proportion of the force used to the degree of dan threatened or reasonably apprehended, the verdict against accused should be, or at all events may be, manslaughter Lt murder. The assumption made for the purpose of this que that a man actually defending himself from the real or appt violence of the deceased has used more force than was justified occasion and that death has ensued from this use of excessive for In all other respects, so it is assumed, the elements of a ple self-defence existed. That is to say it is assumed that an at of a violent and felonious nature, or at least of an unlawful was made or threatened so that the person under attack or attack reasonably feared for his life or the safety of his person injury, violation or indecent or insulting usage. This would m that an occasion had arisen entitling the person charged with to resort to force to repel force or apprehended force. Had he no more force than was proportionate to the danger in stood, or reasonably supposed he stood, although he thereby the death of his assailant he would not have been guilty murder or manslaughter. But assuming that he was not a complete defence to a charge of murder, for the reason only

or violence which he used against his assailant or apprehended ailant went beyond what was needed for his protection or what cumstances could cause him reasonably to believe to be y for his protection, of what crime does he stand guilty ? consequence of the failure of his plea of self-defence on that round that he is guilty of murder or does it operate to reduce the to manslaughter ? e is no clear and definite judicial decision providing an answer ) is question but it seems reasonable in principle to regard such a cide as reduced to manslaughter, and that view has the support afew judicial statements to be found in the reports.

R.v. Whalley (3) Williams aE took that view. There the arenes ad not killed his assailant, but had inflicted grievous bodily harm great violence for the purpose of resisting arrest under an id process. Walliams J. decided that the case must be treated

William Maule as counsel submitted that the force used by the was not justified and said that if the assault by the prisoner 8 not justifiable and death had ensued it would be murder.

. . . had no right at all to apprehend the prisoner, that, on the facts you have opened, if death had ensued, it have been manslaughter only " (4). He directed an acquit-

'Two years later in the course of summing-up to the jury in a ¢ of wounding with intent to murder Parke B. said: "' If a person illegal violence and he resists that violence with anything he s to have in his hand, and death ensue, that would be man- ": R. v. Patience (5). Although this statement happens expressed in rather concrete or objective terms, omitting as it any explicit reference to the proportion of the violence to the er, clearly enough it proceeds from the same doctrine. In Scully (6), and in Reg. v. Bull (7), the indictments were for wughter but that meant that the prosecution accepted and led upon the same principle, which it is clear enough accorded h the view of the presiding judges. Again, Cockburn L.C.J. 8 to have adopted the same view in a case where a charge of

1920. 1K.B. 213; 36TL.R.17. (5) (1837) 7 Car. & P., at p. 776 [173 (1920) K-B., at p. 319; 36 ' E.R. 338].

p. 18. (6) (1824) 1 Car. & P. 319 [171 E.R. ( in 7 Car. & P. 245 [173 E.R. 1213]. 198), (7) (1839) 9 Car. & P. 22 [173 E.R. (1835) 7 Car. & P., at p. 250 [173 723).

murder was supported by evidence that the prisoner had deceased in circumstances that made it possible that he had { under the apprehension of attack. The Lord Chief Justice redi his direction to writing and on this point the note read as "but if the prisoner resorted to the gun in self-defence, serious violence or in the reasonable dread of it, it would be fiable, and that even if there was not such violence, or groun the reasonable apprehension of it, yet that if the conduct o deceased naturally led him to apprehend it and deprived him ¢ self-control, or if an assault, though short of serious inju committed on the prisoner, then it would be manslaughter." appears here to be a contrast intended between what is " j resulting in a complete acquittal and the use of excessive repel an assault " short of serious injury " and therefore goin, further than reducing the homicide to manslaughter : Reg. v. Wi (1). A like view has been adopted in British Columbia, R. Barilla (2). Tt may be added that in discussing Mancini's Cas Professor Landon has remarked that "in a case like Ma where self-defence is the plea, it may well be open to the find that the accused, though actuated by fear, either tool arily violent measures to repel the attack, or failed to before his assailant, and is therefore guilty of manslau Finally in Reg. v. McKay (4), Lowe J. in the series of pi t he laid down included the following: "If the occasion wan action in self-defence or for the prevention of felony or the appre sion of the felon, but the person taking action acts beyond necessity of the occasion and kills the offender, the crime is ms slaughter - not murder " (5). L From the foregoing authorities it appears that in substa Supreme Court took a correct view of the consequences of failure of a plea of self-defence to a charge of murder when it only because the deceased's death was occasioned by an exces use of force, that is to say by force going beyond what was necess in the circumstances or might reasonably be regarded in th cumstances as necessary. The view of the Supreme Court appears also to be correct : the position which the modern law governing a plea of self. gives to the propriety of a person retreating in face of an or apprehended assault before resorting to violence to def himself. The view which the Supreme Court has accepted is #l (1) (1879) 14 Cox C.C., at p. 351. (4) (1957) V.R. 560. ;

(2) (1944) 4 D.L.R. 344. (5) (1957) V.R., at p. 563. (3) (1942) A.C. 1.

it before employing force is no longer to be treated as an dent and imperative condition if a plea of self-defence is to eout. No doubt in certain circumstances it was so regarded. 305 of Sir James Stephen's Digest of the Criminal Law, 9th ed. pp. 252, 253 it is stated that, subject to some wide exceptions, n is unlawfully assaulted by another without any fault of n but with a deadly weapon it is his duty to abstain from the ction of death or grievous bodily harm on the person assaulting he has retreated as far as he can with safety to himself. The s cover an assault upon a man in his own house or when is executing a duty imposed by law or when his assailant is the exercise of force which the person 'assaulted has by cht to employ against the person of another. The supposed lity of the rule comes from the days when armed conflict mon. 'Stephen's statement includes the passage, " if two juarrel and fight neither is regarded as defending himself the other until he has in good faith fled from the fight as he can": 9th ed. (1950), p. 253. Certain qualifications ntioned and subject to them it is possible that in a practical t of view the last statement may still obtain. But there can be oubt at this day that whether a retreat could and should have made is an element for the jury to consider as entering into the

bleness of the defendant's conduct. Holmes J. pronounced 'the question in a way which one may well be content to adopt : nally, the failure to retreat is a circumstance to be considered the others in order to determine whether the defendant arther than he was justified in doing ; not a categorical proof The law has grown, and even if historical mistakes have buted to its growth, it has tended in the direction of rules nt with human nature. Many respectable writers agree 'a man reasonably believes that he is in immediate danger of or grievous bodily harm from his assailant, he may stand his und, and that if he kills him, he has not exceeded the bounds of il self-defence. That has been the decision of this court.

• United States (1). Detached reflection cannot be demanded Presence of an uplifted knife. Therefore, in this court, at t, it is not a condition of immunity that one in that situation uld pause to consider whether a reasonable man might not think le to fly with safety, or to disable his assailant rather than to ": Brown v. United States of America (2).

) 158 U.S. 550, at p. 559 (2) (1920) 256 US. at p. 343 [65

• [39 Law Ed. 1086, at p. 1090}. Law Ed. 961, at p. 963).

Some part of the history of the law will be found dealt wi the late Professor Beale in a paper called Retreat from Murd Assault, (1903) 16 Harvard Law Review 567. But upon the h of the matter it is enough again to quote from Holmes J. same case. "It is useless '', he said, "' to go into the devi of the law from the time when a man who had killed a1 matter how innocently, had to get his pardon whether of course. Concrete cases or illustrations stated in the in conditions very different from the present, like the refe retreat in 3 Co. Inst. 55, and elsewhere, have had a ter ossify into specific rules without much regard for reason "

It will be seen from the foregoing conclusions that there matters upon which the direction given to the jury at the

the case before us were not in accordance with the view of th which it appears proper to accept. In saying this the summ the judge's direction on the two material topics is of course ad For the reasons already given the effect of the charge is a me which in the present case, we should accept the views of the Su Court.

It follows from what has been said that the Crown should its attempt to obtain a more favourable interpretation of tl governing the present case on the two points of general applie We were invited nevertheless to go beyond these questions and re the conclusions which the Supreme Court formed about the effect upon the validity of the conviction of the defects i judge's charge which have been discussed. These are not m which would ordinarily be open to the Crown. For when a trial in a criminal case has been ordered special leave would n¢ granted to the Crown for such a purpose unless the circumst were very special. The proper course for this Court to take appears to be not to allow the Crown under the special leave wl has obtained to go beyond the two points for the consideratit which special leave to appeal was given. Accordingly hi decided those points, the proper course for the Court to purst is to rescind special leave to appeal.

McTiernan J. I agree in the judgment of the Chief both in the reasoning and the conclusions.

Futtacar J. I agree with the judgment of the Chief. in this case, and I have nothing to add.

(1) (1920) 256 U.S., at p. 343 (65 Law Ed., at p. 963].

th Australia for the murder of one Kenneth Frederick Millard.

p nt to s. 11 of the Criminal Law Consolidation Act 1935- 6 and on 27th March he was found guilty and sentenced to death. yon a subsequent appeal to the Full Court the conviction and 'tence were set aside and a new trial was ordered (1). This appeal . hy the Crown is now brought by special leave from the order of the The point of special interest which was thought to justify the

of special leave is concerned with the appropriate directions

be given to a jury upon a trial for murder where, upon the evidence

case, the conclusion is open that a situation had arisen in which

accused was entitled to defend himself against a felonious ttack but that the death charged resulted from the use of more ree than could reasonably have been thought by the accused to be y in the circumstances. After an extensive survey of the lem Mayo J., speaking for the Full Court, formulated the ollowing proposition: " We have come to the conclusion that it the law that a person who is subjected to a violent and felonious k and who, in endeavouring, by way of self-defence, to prevent he consummation of that attack by force exercises more force than onable man would consider necessary in the circumstances, it no more force than he honestly believes to be necessary in the rcumstances, is guilty of manslaughter and not of murder" (2). he basis upon which this proposition is founded may be discovered their Honours' statement that they regarded the situation which described "as a case of unlawful killing, without malice ought, for although the killer may clearly intend to inflict 'ous bodily harm on his assailant, and if necessary, to kill, ate of mind is not fully that required to constitute murder pie lia their Honours seem to have regarded the existence of such an st belief as necessarily inconsistent with the contemporaneous ence of a state of mind required to support a verdict of guilty f murder.

_ In spite of the submission of the Crown that the issue of self- efence did not really arise upon the evidence in the case it is ry to recapitulate the facts. It is sufficient to say that was some evidence of an attack upon the respondent and it y be possible to perceive some evidence that in shooting the d the respondent believed that: his action was necessary for own protection. At all events both the learned trial judge and

~ (1) (1958) $.A.8.R. 95. (2) (1958) S.A.S.R., at pp. 121, 122.

ctor J. In March 1958 the respondent was tried at Port Pirie H.C. or A-

which was the common law charge of murder, was yp Queen

the Full Court considered the evidence, flimsy in the extreme th it was, sufficient to raise the issue of self-defence and a the onus devolved upon the Crown of satisfying the jury reasonable doubt on this issue. The verdict of the jury, ho negatived this defence and, indeed, the issue of provocation, bu the view expressed by the Full Court is correct it was nec the jury to be satisfied before returning a verdict of guilty of that the respondent did not honestly believe that the act of shoo was necessary for his protection

It may be thought with some justification that a direction upon this view of the law would tender a somewhat artifici unreal issue of fact for the consideration of a jury. Indeed it may] thought only remotely possible that a jury, having satisfied its beyond reasonable doubt that an accused person had used more fo in self-defence than he could reasonably have thought n would, thereafter, be prepared to entertain the view that the of force used was no greater than the accused, in fact, believed to be necessary. In this situation it is not surprising the principle which the Full Court thought to be " implicit in early cases", has not, as their Honours observed, attracted attention of textbook writers and commentators or been the subj of consideration by any appellate court in England. Nor, indee was counsel for the prisoner able to cite any English cases or at textbook in which the enunciated proposition had been stated t¢ form part of the English common law relating to homicide. a

The statement of principle enunciated by the Full Court wa founded primarily upon observation made by Lowe J. in the cas Reg. v. McKay (1). In that case his Honour formulated six proposit ions relating to homicide. His final proposition was that " if occasion warrants action in self-defence or for the prevention of felony or the apprehension of the felon, but the person taking actio acts beyond the necessity of the occasion and kills the off nd the crime is manslaughter - not murder " (2). It was this propos tion upon which counsel for the prisoner relied upon the appeal to # Full Court and before this Court and it was advanced as an au for the view not only that a verdict of manslaughter is permi the circumstances hypothetically stated but that a verdict of mu is not open in any case where, on such an occasion, the kill results from the use of force beyond that reasonably nei the circumstances. But it will be observed that the prop formulated by Lowe J. is not in any way limited to cases appears that the accused entertained an honest belief that the fo

though excessive on any reasonable view, was necessary. tinction is of significance and reflection upon it provides for thinking that the test proposed by the Full Court is

unnecessary at this stage of the history of criminal law to attention to the fact that punishable homicides fall into » categories, murder and manslaughter. But it is desirable to in order to point out that at common law malice aforethought - that term may now be taken to comprehend - was an ingredient of the crime of murder. All other punishable s were manslaughter. Even if it were not abundantly at a much earlier stage it is undeniable since Woolmington v. or of Public Prosecutions (1) that upon a charge of murder, for the Crown, whatever the circumstances of the killing, establish beyond reasonable doubt the existence of the requisite lice on the part of the accused. This of course may be done by of a deliberate killing unaccompanied by any mitigating or iting circumstances. But mitigating or alleviating factors be found in provocation or in other circumstances which tend to that the killing was not wilful or that the accused had acted e of his life liberty or property. This must, I think, be taken the reason underlying the rule followed in the almost countless concerned with homicide by accused persons in the course of ng an unlawful arrest or an unlawful invasion of proprietary s or in the course of violently resisting assaults attended with ances of great personal indignity. It seems that in cases fall into the last-mentioned categories the attendant cireum- may, as in clear cases of sufficient provocation, be taken as to prevent the implication that the killing was malicious in sense in which that term has come to be understood in relation

crime of murder : Woolmington's Case (2) ; see also Mancini irector of Public Prosecutions (3); Holmes v. Director of Public ions (4) and Chan Kau v. The Queen (5). For my own I can see no real distinction between cases of the character /mentioned and cases where the unlawful killing has taken place an occasion of and for the purposes of self-defence and, it to me that it was with much the same notion in mind that the Court's proposition was formulated. But this proposition cts as the vital factor the belief of the accused that the force used no more than that necessary in the circumstances. No doubt

1935. A.C. 462. (4) (1946) A.C, 588. (1935) A.C., at p. 482. (5) (1955) A.C. 206.

in such a case it would be proper for a jury to return a verdic manslaughter but the difficulty inherent in the proposition is it envisages what may be regarded as a somewhat unreal situatic As already mentioned, on this test, the issue of the accused' would only arise for determination after a jury had satisfied beyond reasonable doubt that the accused had used more force he could on reasonable grounds have believed to be nei Moreover action in self-defence is instinctive and does not wait up a precise appreciation of the exigencies of the occasion or upon formation of a belief concerning the precise measures which ar necessary. The many cases to which we have been referred satis me that the test to be applied by a jury in cases where self-defenc justification is rejected rests upon a broader basis than the accused honest, though unreasonable, belief. It is in my view, sufficien if it appears that what the accused did was done primarily for t purpose of defending himself against an aggressor and the ju should be instructed that unless satisfied beyond reasonable doub that this was not so a verdict of manslaughter should be returned. In form this test may not be quite as wide as that proposed Lowe J. who may, perhaps, be taken to have thought a verdie manslaughter inevitable "if the occasion warrants action in s defence or for the prevention of felony or the apprehension of tl felon". There seems little doubt that even upon such an occasio the degree of force used and the attendant circumstances may such as to leave open the question whether the accused m acted under " pretence of necessity". Such a case would within the third proposition formulated by Lowe J. and I do not that by his final proposition he is to be understood as postulati that manslaughter is the appropriate verdict merely because killing has taken place on an " occasion" warranting action ii self-defence ; rather I take him to be referring to cases where no

accused, in fact, acts for the purposes of self-defence. The foregoing observations assume that this was a case in ¥ the issue of self-defence properly arose for the jury's consid But before us the Crown, as already mentioned, contended that t was not so. Yet the learned trial judge and the Full Court thougl that it was such a case despite the fact that the evidence was, at th most, of a very unsatisfactory and inconclusive nature. Upo consideration of the facts, however, I do not think that we shou entertain this contention. Special leave was given for the purpo of enabling consideration to be given to the point already discu and not for the purpose of considering whether a proper app

ecase was one in which the issue of self-defence as justification e there is a further reason why a new trial should take place for, directing the jury, the learned trial judge formulated a test which d regard only to the actual necessities of the occasion and which the requirement that the jury should consider the question of pondent's reasonable belief or the question of what he could onably have believed to be necessary. Upon the authorities s an inadequate direction and was sufficient to justify a new Ishould add that because of considerations which are apparent the foregoing reasons I prefer to state the test as being whether pondent used more force than on reasonable grounds he could lieved to be necessary and not whether he used more force on reasonable grounds he actually believed to be necessary. A further objection taken to the summing-up was concerned with jon whether the respondent was, upon any view of the facts, by the jury, bound to retreat before taking action in lefence. On this point I agree with the conclusion of the Full and I agree that, having expressed our views upon the point h was thought to merit fuller consideration, it is proper to of the matter by rescinding the order for special leave and g the order of the Full Court to stand.

zizs J. The respondent Howe was convicted of murder upon before Ross J. and his conviction by the jury was set aside by he Full Court of South Australia on the ground of misdirection. trial was ordered (1).

leave to appeal to this Court was granted upon the applic- of the Crown in order that an important question of criminal might be determined by this Court. That question, stated ily, was whether upon a trial for murder where self-defence e the jury should be directed that it is manslaughter and not if an accused person in defending himself from a violent and attack killed his attacker by the use of force which not- ng his honest belief that it was necessary for his self- on was force in excess of that which on reasonable grounds d have believed was necessary for that purpose.

e stated the question in this way because it would be a very case in which a jury would come to such findings and

lence showed that this was a case in which the issue of H- ©. or A.

ally this was a matter for the Full Court and I see no reason gy, Quank

HIGH COURT because it is, I think, open to question whether the evidence g upon Howe's trial really raised it. The evidence said to disregarding all else, was in the main the evidence of Howe and was to the following effect. That Howe and Mil deceased) drove in Howe's car to a secluded spot about five away from Port Pirie to have a drink. After they had fini bottle of sherry Millard pulled open the fly of Howe's tro touched his penis. Howe expostulated and told Millard to get of the car. He did so and so did Howe and then without dissension or discussion they walked together in front of th and when they were eight or nine paces in front of the car Mi suddenly grabbed Howe by the shoulder. Howe wrenched hi free and ran back to the car and upon opening the door saw prot ing from under the front seat the butt of a loaded pea rifle whi he had put there but had forgotten for the time being. Seeing tifle he seized it and shot Millard who was then standin; nine paces in front of the car with his back to Howe. further evidence was that he believed that the attacks both in. out of the car were sodomitical attacks by Millard, that Mii somewhat taller and heavier than himself, that he didn't could keep him off with his hands, that he fired intending to further attacks and when he did so he was angry, afraid and " mixed up ", that he didn't think at all about whether he was lik to kill Millard and that it never occurred to him to get into th and drive off.

Ross J. did direct the jury that upon this evidence they find manslaughter instead of murder on the ground of provoes but he gave no other direction about manslaughter. On the i of self-defence, apart altogether from provocation, he instructed t jury that if the force used was excessive, i.e. greater than " necessary for mere defence, then the evidence afforded no def at all. It is this direction that gives rise to the question m before this Court because the Full Court decided that it was ¥

Tn addition to this question there was a number of other argued in the Full Court and in this Court in relation to the up. I do not think it necessary or desirable to refer to more # one of these. They are all matters for the Full Court sitting court of criminal appeal rather than for this Court. ;

The other one to which I want to refer is that Ross J. jury that to the rule that a man may kill in reasonable self-defer without being guilty of any crime there is a qualification, name that it is the duty of a person attacked to retreat as far as poss having regard to the seriousness of the attack. This was stated

additional to the requirement that the force used must y such as was necessary for self-protection. The Full Court ered that a direction in these terms was wrong and with that Tagree too with the Full Court that what has been called sibility of retreat, i.e. of avoiding danger without shooting e did, is something to be taken into account in considering what Howe did was necessary. his point I propose to state in my own words the law which der applicable to such a case as this, reserving for the moment neiple question here in issue. By way of preface I would e that what I am about to say is confined to a case of self- e against serious violence though not necessarily felonious Aman who is attacked may use such force as on reasonable he believes is necessary to prevent or resist the attack and such force he kills his assailant he is not guilty of any crime the killing was intentional. In deciding in a particular case, it was reasonably necessary to have used as much force as fact used, regard must be had to all the circumstances the possibility of retreating without danger or yielding g that a man is entitled to protect. If the force used was 'ionate to the seriousness of the attack and the danger person attacked, then force beyond what was reasonably y will have been used and some crime will have been com- This statement leaves open the exact consequences of ; what is conveniently enough described as excessive force to et such an attack and to that difficult question I now turn. question has been considered in Australia recently on three In Reg. v. McKay (1) Lowe J. at the end of a series of propositions in relation to self-defence and the prevention of s said: "If the occasion warrants action in self-defence or prevention of felony or the apprehension of the felon but taking action acts beyond the necessity of the occasion s the offender the crime is manslaughter - not murder " (2). s applied by Smith J. in Reg. v. Bufalo (3). In this case the expressed their view of the law on this point in the terms: " We have come to the conclusion that it is the a person who is subjected to a violent and felonious attack 0, in endeavouring, by way of self-defence, to prevent the nsummation of that attack by force exercises more force than a

force than he honestly believes to be necessary in the

circumstances, is guilty of manslaughter and not of mi This proposition was stated after a review of the authorit now turn to those authorities.

Many of the earlier cases are concerned with killings in the co of resisting wrongful arrest attempted under colour of lawful Tt was the law that to kill while resisting lawful arrest was but it is clear that where the attempted arrest was not autho law the officer attempting the arrest lost his " peculiar prot so that to kill him would in some circumstances be no more th manslaughter. This was so notwithstanding that the killing intentional unless it was also premeditated. There are two vie whether it was murder or manslaughter in a case where in res illegal arrest the resistor, by the use of greater force than 1 necessary to prevent his arrest, killed the officer attempting In Russell on Crime, 10th ed. (1950), vol. 1, p. 488, it is sait " The fact that a warrant is illegal may make an attempt to it a provocation: but does not necessarily reduce from murd manslaughter the offence of killing the officer in resisting its tion. If the execution can be resisted without proceeding tremity of violence, use of great and unnecessary violence to the provocation given or proof of premeditated previous or express malice would seem to make killing in such a case mu The principle was stated by Hast to be that the illegality attempt to arrest merely puts the officer on the same footing any other wrongdoer." The implication here seems to be it is murder to kill by the use of excessive force in resisting unla
attack whether made under colour of authority or not. If thi what is meant I do not think the authorities bear it out.

In Stephen's General View of the Criminal Law of England, (1863), p. 117, the intent to resist unlawful apprehension is t1 as a state of mind constituting " that lighter degree of malice wh is necessary to the crime of manslaughter " rather than mut This is in my opinion illustrated by R. v. Cook (2); R. v. Wi

Others are to be found in Halsbury's Laws of England, 3rd e 10, pp. 707-709. In Cook's Case (2) it was said that when a

was shot dead by the prisoner in unlawfully breaking into prisoner's house to arrest him, it was manslaughter " for he have resisted him without killing him ; and when he sa shot voluntarily at him it was manslaughter". The bailiff's a

(1) (1958) S.A.S.R., at pp. 121, 122, (3) (1835) 7 Car. & P, 246 [1 (2) (1640) Cro. Car. 537 [73 E.R. 108}. 4 1063). (4) (1887) 7 Car. & P. 776 (1733 38). "Gf

described as " not sufferable for under colour thereof one may 'who hath not any such authority ; and everyone is entitled to d his own house". In R. v. Whalley (1), where the charge wounding, the prisoner struck the prosecutor on the head with s The prosecutor was attempting to arrest the prisoner 1a warrrant issued by commissioners of bankruptcy but it having held that he had no authority to do so under the warrant iams J., in answer to an argument that as the circumstances did not justify the force used it would have been murder had the ecutor died, said that in the case opened " if death had ensued it uld have been manslaughter only". In Patience's Case (2) a charge of wounding with a knife with intent to murder, B. after deciding that the attempted arrest of the prisoner by constable who was wounded was illegal and that there was no dence of premeditated violence, said : "If a person receives illegal olence, and he resist that violence with anything he happens to ein his hand, and death ensue, that would be manslaughter " (3).

"When a constable, or other person properly authorized, in the execution of his duty, the law casts a peculiar protection him, and, consequently, if he is killed in the execution of his ,, it is, in general murder, even though there be such circum- of hot blood and want of premeditation as would in an ord- case reduce the crime to manslaughter. But when the warrant

• which the officer is acting is not sufficient to justify him in or detaining prisoners, or there is no warrant at all, he is itled to this peculiar protection, and consequently the crime e reduced to manslaughter when the offence is committed on

ition " (5). the whole the authorities seem to me to establish that to ry resistance to unlawful arrest to the point of killing was man- ter, notwithstanding that the killing was intentional and

malice". Although this position was reached before the octrine of provocation had taken its present form and was probably in part upon the disfavour with which violence on the part under colour of legal process was viewed, I consider that law the only effect of a determination that the process was not was to deprive the officer of his " peculiar protection "

Son 7 Car. & P. 245 (173 E.R. (3) (1837) 7 oo & P., at p. 776 [173 ELR., 338]. i") 7 Car. & P.775 [173 E.R. (4) (1867) 17 L.T. (N.S.) 222. 338), (5) (1867) 17 L.'T. (N.S.), at p. 225.

and put him in the same position as any other person who m: violent and unlawful attack on another. On this basis the au ties which I have considered do support the view that i ter if an assailant is killed by the person attacked while with excessive force an unlawful and serious attack. This wi: view taken by the Supreme Court of New South Wales (Full 0 in Reg. v. Griffin (1). There the accused designedly but s and without premeditation shot his neighbour with whom he running quarrel and who had rushed at him shouting The accused had been convicted of murder but this conviction set aside, Stephen C.J. saying: " Now the law clearly is, thai there was in fact such a design manifested, on the part deceased - an intention then and there to commit the act of suspected, or said to have been, by either wounding o other grievous bodily harm on the prisoner - or even, as I appreher if there was at the moment reasonable ground for believing that a design existed - the prisoner was entitled immediately to effectual measures for his protection ; and, being in his own h was not bound to retreat in order to avoid the danger. The p so believing could not indeed justify the taking of life, or u deadly weapon in a manner likely to take life, unless he cou otherwise prevent the apprehended injury - or, at least, unless was reasonable ground for believing that there were no other m and he did in truth act on that belief. I do not say, that in case alike the homicide (supposing death to ensue) would be jus fiable. In one of the cases put, the act of killing might be m slaughter. But in none of them would it be murder " (2). The last of the older cases to which I want to refer is Weston (3) which was a case where the prisoner shot and ki ed deceased. There in his charge Cockburn C.J. told the jury that an assault, though short of serious injury was committed on | prisoner then it would be manslaughter " and left to the jury t question " Was it done after an assault made by the deceased on prisoner, though short of an assault calculated to kill or cause seri bodily injury ? " (4) which he stated would amount to manslaug The verdict was manslaughter on the ground that the prisoner levelled the gun against the deceased unnecessarily and had charged it accidentally, not on the ground that unnecessary had been used. ee It was submitted by the Crown that in all these cases in w manslaughter was found or where it is stated that the pr

(1) (1871) 10 8.C.R. (N.S.W.) 91. (3) (1879) 14 Cox. C.C. 346. (2) (1871) 10 .C.R. (N.S.W.), at p. (4) (1879) 14 Cox. C.C., at p. 35! 100.

of an intention to kill or do grievous bodily harm. I

'one case, some of which I have cited, shows that the accused have an intention to kill or wound his assailant. The distinction n between premeditated and sudden violence, e.g. in Patience's ¢ (1), is also opposed to this contention.

now to the modern authorities there are two to which to refer, one from Columbia, Canada, and the other from ky, U.S.A. In R. v. Barilla (2), it was said: "' Manslaughter referred to in relation to provocation, and acquittal was referred ) in relation to self-defence. But nowhere in the summing-up did e learned judge direct the jury upon manslaughter in relation -defence, that is to say, that excessive self-defence would a manslaughter verdict but not acquittal" (3). .. . "The

Barilla did was an unnecessarily violent act of self-defence in the ircumstances of the attack then launched, that it was open to them to find a verdict of manslaughter" (4). In The Commonwealth v.

erly (5) it was said: "In making application to the facts dis- on this trial the court concludes that the instructions on and on manslaughter, based upon the theory of heat and ion or sudden affray, were properly given. But instructions o. 3 and 4 were too favourable to the defendant. In place of them, the court should have instructed that the jury might find the ant guilty of voluntary manslaughter upon the idea that he used more force than was necessary or reasonably necessary to the commission of the felony described and to protect his erty (5) ". These passages indicate a view of the law inconsistent with that would regard excessive force as something which would convert justifiable homicide into murder. 'was argued by the Crown that the decision of the House of Lords lancini v. Director of Public Prosecutions (6) is inconsistent with Propositions of both Lowe J. in McKay's Case (7) and the Full in this case (8). In that case the trial judge directed the jury regard to self-defence and as to this Viscount Simon L.C. said : "It was in fact, if anything, too favourable to the appellant, for ten J. did not invite the jury to consider whether, even if it

( ou) 7Car. & P.775 [173 E.R. (5) (1935) 237 Ky. 35.

(6) (1942) A.C. 1. = () (94h 4 D. R, 344. (7) (1957) V.R. 560. (3) (1944) 4 D. at p. 345. (8) (1958) S.A.S.R. 95.

would be manslaughter there was no malice aforethought in H- ©. or A.

accept this view because I think the language used in more py, Ques

were true that the appellant was menaced with the pen- would justify the use of the appellant's terrible weapon so constitute a case of necessary self-defence, nor did the learned make any observations on the question whether the appellant ¢ not have escaped from the threatened danger by retreating fr the club. The learned judge was content that the jury should with the question of self-defence on the basis that, if they the appellant's story at the trial about Distleman advancing the open pen-knife in his hand, they should return a verdict o} 'not guilty'. The jury's verdict shows that they dishelieved th appellant's story. Self-defence by the use of so deadly a could not be made out if the appellant was never threatened the pen-knife, and the learned judge, accordingly, proceeded charge the jury on the alternative view that, although, if th appellant was disbelieved, self-defence must be rejected, yet th circumstances might still justify the jury in returning a verdict manslaughter rather than of murder" (1). Later on the Chancellor said: " Although the appellant's case at the trial

necessary self-defence - a defence which, if it had been accepted the jury, would have resulted in his complete acquittal - it y undoubtedly the duty of the judge, in summing-up to the j to deal adequately with any other view of the facts which m reasonably arise out of the evidence given, and which would re the crime from murder to manslaughter " (2). The trial judge d

self-defence would warrant or require a verdict of manslaughter it is now said that the fact that this was not treated as an o shows that such a direction was not necessary. I cannot accept contention. The judgment of the Lord Chancellor was based upon the assumption that the jury rejected the prisoner's story that h was attacked with a knife and that this rejection left nothing be the possibility of an attack with hand or fist. It was not argued the prisoner that he killed with his knife in defending himself such an attack; what was argued and what was rejected was that such an attack could amount to provocation for the killing. It would, I think, be quite unsafe to regard Mancini's Case (3) in th way for which the Crown contended. The House of Lords was not dealing in any way with the problem that arises here. 7

Upon consideration of the foregoing authorities and bearing i mind the improbability that an error of judgment on the part of @

(1) (1942) A.C., at pp. 6, 7. (3) (1942) A.C. 1. (2) (1942) A.C, at p. 7.

a serious attack as to the degree of force that the reasonably required for his self-protection, would of itself

'into murder what would otherwise be justifiable homicide, ave reached the conclusion that the law is that it is manslaughter not murder if the accused would have been entitled to acquittal e ground of self-defence except for the fact that in honestly g himself he used greater force than was reasonably necess- his self-protection and in doing so killed his assailant. 'is to be observed that this statement of the law would always e open the question whether the person who killed was defend- elf when he did so. Having reached this conclusion and the m that the trial judge's direction as to retreat was wrong, the proper course to follow is to rescind the special leave to eal that was granted and so allow the order of the Full Court fora new trial to stand.

Order for special leave to appeal rescinded except in so far as it embodies the undertaking of the Crown as to costs.

] for the applicant, R. R. St.C. Chamberlain (Crown or for South Australia). icitors for the respondent, King & Clark.