R v Howe [1958] HCA 38

R v Howe [1958] HCA 38 - HCA 1958 case summary — Zoe

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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."

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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

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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. ;

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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

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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

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