Viro v The Queen - [1978] HCA 9 - HCA 1977 case summary — Zoe

CTHHCA

Viro v The Queen

[1978] HCA 9

High Court of Australia|1977-03-28|Before: Aickin JJ

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Court

High Court of Australia

Decision date

1977-03-28

Before

Aickin JJ

Source

Original judgment source is linked above.

Judgment (278 paragraphs)

[1]

The applicant, Frederick Joseph Viro, and another man, Sebastian Greco, were jointly indicted on a charge that on 22nd January 1975 they murdered John Rellis. They pleaded not guilty but were convicted and sentenced to penal servitude for life. Their appeals against conviction were dismissed by the Court of Criminal Appeal of New South Wales. The applicant now seeks special leave to appeal to this Court. The application was fully argued as though it were an appeal.

[2]

The relevant facts are as follows. The applicant was addicted to drugs. He habitually used heroin - he said that he used two or three capsules every day. On the night before the killing he had a conversation with a man whose name he did not know but who in fact was Geoffrey Fernando. The applicant arranged to meet with Fernando again on the following evening, and to supply to him and to another unnamed man about an ounce of heroin for a price of about $1,100. In fact the applicant did not have that quantity of heroin. On the night of 22nd January, at about a quarter to nine, the applicant, a girl named Karen Sedgwick, Greco and one Tippett drove to Fairfield in Tippett's van. The applicant had obtained four caps of heroin and he and his three companions then used almost three of them. The applicant said in his statement to the police which is recorded in his signed record of interview, "We were pretty high, it was good strong heroin". Later that evening the applicant saw Fernando at the house of a man called Laidlaw. Fernando asked the applicant if he had the heroin and when the applicant said that he had not, suggested that they rob the other man to whom under the arrangement the heroin was to be supplied (who was in fact John Rellis). Fernando said that Rellis had $1,200 with him - that proved to be true, for $1,250 was later found on his body. He added that Rellis had a gun - no gun was in fact ever produced by or found on Rellis. The applicant and Laidlaw agreed to Fernando's suggestion. The applicant left to get his car and having obtained it drove with Karen Sedgwick and Greco back to Fairfield. He told Karen Sedgwick and Greco of the planned robbery. The applicant and Greco have both since pleaded guilty to a charge of conspiring to assault and rob Rellis. At Fairfield, at about 10 o'clock that evening, they met Fernando, Laidlaw, Rellis and another man and a girl. After some discussions, and some comings and goings which it is unnecessary to detail, Rellis and Fernando got into the applicant's car. Karen Sedgwick was in the driver's seat and the applicant sat beside her in the front seat. In the back seat were Fernando, who was sitting behind the applicant, Rellis, who was sitting in the middle of the back seat, and Greco, who was sitting behind the driver. The applicant asked Rellis if he had the money on him and when Rellis replied "Yes" the applicant said that they would go and get the heroin. They drove off. The applicant had a jack handle with him in the front of the car. In the glove box was a steak knife but the applicant said that they had not planned to use that in the robbery. After the car had been driven for some distance the applicant began to attack Rellis with the jack handle with the intention of stunning and robbing him. At this point it is convenient to use the applicant's own words as contained in his record of interview. It should perhaps be explained that in this statement he refers to Fernando as "the dark bloke" and to Greco as "Seppe". The relevant parts of this statement are as follows:

[3]

Karen drove down Clarke Street and I turned around and hit John on the head with the jack handle a couple of times to stun him so that I could rip him off. Karen stopped the car quickly, the dark bloke was screaming out, "Stop it Fred, leave him alone Fred." He was making out that he wasn't in the rip off and he got out of the car and I think he ran, because I didn't see him again. Anyhow after I hit John the second time with the jack handle, he had a knife out, I think he got it out of his pants, but Seppe later said that he thought that he had it in his hand all the time. It was a sort of a flick knife, one that opens out and he had it in his left hand. I grabbed hold of his arm and dropped the jack handle and tried to stop him from sticking us and Seppe got hold of him around the neck and I said to him "Stop it man." He cut me on the fingers, the three fingers on my right hand. [indicates cut on knuckle index finger, knuckle of middle finger and tip of little finger.] He cut Seppe on the arm. He was a madman and wouldn't stop struggling. I got the knife out of the glovebox and held it at him and said, "Drop the knife, cool it man." All the time Seppe was still struggling with him and John was kicking at me and he kicked me in the left shin. [indicates two scabs left shin.] Seppe said, "Quick man, you'll have to give it to him. Give it to him. Give it to him. Otherwise we are dead." I stuck him once in the stomach and said, "Stop it and drop the knife". But he was crazy and kept struggling and Seppe kept saying to me, "Give it to him". I stuck him three or four times then, I don't know just where, but it was in his body and once in his left arm to make him drop the knife, I purposely tried to get him in the arm to make him drop the knife, but he was just too strong and by then we were all covered in blood, so I opened my door and said, "Let's get him out of here, don't worry about the money." The whole thing sickened me. Some of the inhabitants of Clarke Street, Bass Hill, saw Rellis precipitated from the car shortly before 11 p.m. He died soon afterwards. His body bore about seventeen cuts or wounds - on the face, chest, side, shoulder and back. One wound, on the right side of the back, was 9 cm deep and had penetrated the heart - that was the fatal wound. The steak knife, which is an exhibit in the case, had a serrated blade, about 10½ cm in length. The flick knife that the applicant said had been used by Rellis had a blade 9½ cm in length but it was a heavier blade than that of the steak knife.

[16]

Where the act of the accused which caused the death was done in an attempt to commit, or during or after the commission, by the accused, of a crime punishable with penal servitude for life, it is unnecessary for the Crown to establish, as an element of the murder charged, that the accused had any intention to kill or to inflict grievous bodily harm. So much is clear from the words of s. 18 itself and is established by the authority of Ryan v. The Queen [25] . In that case it was held that to constitute murder it is necessary that the act of the accused should have been a voluntary act - an act resulting from the exercise of his will - but that no intention to kill or wound is necessary. It has never been suggested in the present case that the actions of the applicant were involuntary. In the light of the decision of the House of Lords in Director of Public Prosecutions v. Majewski [26] it could not successfully have been contended that the applicant would have been exonerated from criminal responsibility if the drugs which he had voluntarily taken had deprived him of the ability to exercise self-control or to realize the possible consequences of what he was doing. However, it is not right to say (and it was not said in Ryan v. The Queen) that no intention is necessary on the part of an accused before he can be convicted of felony-murder under s. 18. The lethal act must have been done in an attempt to commit, or during or immediately after the commission, by the accused or by some accomplice with him, of a crime punishable with penal servitude for life. Where the attempt has been made, or the crime has been committed, by the accused, the accused must necessarily have had the intent (if any) involved before he could be held to have made the attempt or to have committed the crime. In Ryan v. The Queen the crime committed was robbery with arms and wounding. In the present case there was no robbery - no property was taken - and the Crown case was that the relevant crime was assault with intent to rob with arms and wounding. The intention which the Crown had to prove on this aspect of the case was an intent to rob. The evidence that the applicant had such an intent was overwhelming - he did not ever suggest that the use of the drugs meant that he had not formed an intent to rob. On the contrary, he in effect reaffirmed, in his unsworn statement, what he had already said in his record of interview, that he did intend to rob Rellis. It would have been a question for the jury whether the stabbing had occurred during or immediately after the commission of the crime, but on this aspect of the case the failure to give a direction that the jury, in considering whether the applicant had formed the necessary intention, should consider the fact that the applicant had used drugs could not have misled the jury.

[37]

A jury will be told that the defence of self-defence, where the evidence makes its raising possible, will only fail if the prosecution show beyond doubt that what the accused did was not by way of self-defence. But their Lordships consider that if the prosecution have shown that what was done was not done in self-defence then that issue is eliminated from the case. If the jury consider that an accused acted in self-defence or if the jury are in doubt as to this then they will acquit. The defence of self-defence either succeeds so as to result in an acquittal or it is disproved in which case as a defence it is rejected. The law as stated in Palmer v. The Queen has since been applied by the Privy Council on appeal from Hong Kong (Edwards v. The Queen [6] , and by the Court of Appeal in England (Reg. v. McInnes [7] ). On behalf of the applicant it was submitted that the law is correctly stated in Reg. v. Howe and that the decision in that case rather than the decisions of the Privy Council should be followed in New South Wales. The learned Solicitor-General for New South Wales did not dispute the correctness of this submission. He agreed that Reg. v. Howe correctly states the law. His submission was that in the present case the question of self-defence should not have been left to the jury at all, because a reasonable jury could only have taken the view that the applicant was the aggressor throughout the whole incident and never withdrew from the conflict which he had commenced. He further submitted that in any case the applicant was not entitled to rely on a plea of self-defence, when the force which he employed was used in the course of a struggle which he had commenced while making a felonious assault on Rellis. I shall later deal with the submissions made on behalf of the Crown in opposition to the present application in so far as they rest on the facts of the case. But I may say immediately that the principle of law for which the Solicitor-General contended is too absolute to be accepted. In my opinion it cannot be said as a matter of law that the fact that the applicant was the aggressor and made a violent criminal assault upon Rellis meant that the subsequent killing of Rellis could not under any circumstances be excused on the ground of self-defence. 1. (1958) 100 C.L.R. 448. 2. [1971] A.C. 814. 3. [1971] A.C., at p. 832. 4. [1973] A.C. 648, at p. 658. 5. [1971] 1 W.L.R. 1600; [1971] 3 All E.R. 295; 55 Cr. App. R. 551.

[41]

In their Lordships' view the defence of self-defence is one which can be and will be readily understood by any jury. It is a straightforward conception. It involves no abstruse legal thought. It requires no set words by way of explanation. No formula need be employed in reference to it. Only common sense is needed for its understanding. It is both good law and good sense that a man who is attacked may defend himself. It is both good law and good sense that he may do, but may only do, what is reasonably necessary. But everything will depend upon the particular facts and circumstances. Of these a jury can decide. It may in some cases be only sensible and clearly possible to take some simple avoiding action. Some attacks may be serious and dangerous. Others may not be. If there is some relatively minor attack it would not be common sense to permit some action of retaliation which was wholly out of proportion to the necessities of the situation. If an attack is serious so that it puts someone in immediate peril then immediate defensive action may be necessary. If the moment is one of crisis for someone in imminent danger he may have to avert the danger by some instant reaction. If the attack is all over and no sort of peril remains then the employment of force may be by way of revenge or punishment or by way of paying off an old score or may be pure aggression. There may no longer be any link with a necessity of defence. Of all these matters the good sense of a jury will be the arbiter. There is nothing in that passage inconsistent with the decision in Reg. v. Howe [9] . In accordance with this view of the law it is now accepted, both in England and Australia, that it is no longer essential, even in circumstances where the homicide would have been regarded as excusable rather than justifiable, that, before a plea of self-defence can succeed, it should appear that the accused had retreated as far as possible having regard to the nature of the attack. "The failure to retreat is a circumstance to be considered with all the others in order to determine whether the defendant went farther than he was justified in doing": per Holmes J. in Brown v. United States [10] , cited in Reg. v. Howe [11] . In other words, a failure to retreat is "simply a factor to be taken into account in deciding whether it was necessary to use force, and whether the force used was reasonable": Reg. v. McInnes [12] , citing Smith and Hogan, Criminal Law, 2nd ed. (1969), p. 231. 1. [1971] A.C., at pp. 831-832. 2. (1958) 100 C.L.R. 448. 3. (1920) 256 U.S. 335, at p. 343 [65 Law. Ed. 961, at p. 963]. 4. (1958) 100 C.L.R., at p. 463. 5. [1971] 1 W.L.R. 1600, at p. 1607; [1971] 3 All E.R., at p. 300; 55 Cr. App. R. 551, at p. 560.

[42]

In the United States of America it appears to be established that an aggressor who provokes an attack upon himself, or produces the occasion which makes it necessary for him to take life, cannot assert that he acted in self-defence unless when attacked he has retreated as far as possible and announced his desire for peace. The aggressor, to be entitled to defend himself, "must have withdrawn actually and really and in good faith. He must retreat as far as the fierceness of the assault by the other will permit without danger of death or great personal injury, before he will be justified in killing. An insufficient retreat is of no effect. Nor is this all; the aggressor must inform his antagonist of his purpose to withdraw from the conflict. If the circumstances are such that he cannot do this, it is attributable to his own fault and he must abide by the consequences.": 40 Am. Jur. 2d, Homicide, ss. 140, 145, 150; see also 55 A.L.R. 3d, pp. 1003-1004, and Perkins, Criminal Law (1957), pp. 896-897. In my opinion, in Australia the fact that the person raising self-defence was the aggressor is an important consideration of fact, but not a legal barrier to the success of the plea. The matter may be regarded in a similar light to a failure to retreat. It is obvious enough that a person cannot rely upon the plea of self-defence unless the violence against which he sought to defend himself was unlawful. If, therefore, one man makes a violent attack upon another with intent to rob him, and the man attacked defends himself, using no more force than is reasonably necessary, the original assailant cannot be said to be acting in self-defence in trying to overcome the other's resistance, since that resistance was lawful. However, if the original assailant has desisted from his attack, and his intended victim no longer needs to defend himself, and can not reasonably believe that he is still in danger, but nevertheless takes the offensive and out of anger or revenge himself becomes the attacker, the original assailant is not obliged to let himself be killed or injured without any attempt at resistance. Nevertheless, in such a case it is difficult to see how, as a matter of fact, the conduct of the aggressor, which commences as a criminal assault with an intent to commit a serious crime, can become transmuted in split seconds into lawful self-defence, unless the aggressor has clearly broken off his attack. In such circumstances the fact that he did not retreat when he had the opportunity to do so assumes a special significance.

[45]

If the decision of the Privy Council in Palmer v. The Queen [15] is to be followed, the summing up on the issue of self-defence was correct. So the question that immediately arises is whether this Court is bound to defer to that decision of the Privy Council notwithstanding that it is in conflict with an earlier decision of this Court. When the Privy Council was the ultimate court of appeal from the courts of Australia, its decisions were of course binding on all Australian courts. There was an exception to this rule: a decision of the Privy Council upon a question as to the limits inter se of the constitutional powers of the Commonwealth and those of any State or States, or as to the limits inter se of the constitutional powers of any two or more States, pronounced in a case in which this Court had not given its certificate under s. 74 of the Constitution, was not binding: Baxter v. Commissioner of Taxation (N.S.W.) [16] . Another exception has been suggested - that a decision of the Privy Council given on appeal from the courts of some other part of the British Commonwealth was not binding on Australian courts. In conformity with this view, a court in Canada, faced with the much criticized decision of the Board in Victorian Railways Commissioners v. Coultas [17] held that that case was authority only as to the law of Australia and was not binding on the courts of Canada: Negro v. Pietro's Bread Co. Ltd. [18] . At that time the notion that a decision of the Privy Council on appeal from Australia was not binding in Canada was heretical. Since then it has become recognized by the Privy Council itself that the common law may develop differently in different Commonwealth countries: Australian Consolidated Press Ltd. v. Uren [19] ; Abbott v. The Queen [20] . It has become possible to say that the common law for Australia is not necessarily the same as the common law of England or of some other part of the British Commonwealth: see Mutual Life and Citizens' Assurance Co. Ltd. v. Evatt [21] and Cooper v. Southern Portland Cement Ltd. [22] . Nevertheless the cases in which the common law of Australia differs from that of England are likely to be exceptional. Diversity is certainly not to be encouraged for its own sake. And in any case, once the Privy Council decided a question of general law, without indicating that it was laying down a principle peculiar to the dominion, colony or other state from which the appeal was brought, its decisions were binding upon all courts from which an appeal lay to the Privy Council. That seems to have been held by the Privy Council itself in Fatuma Binti Mohamed Bin Salim Bakhshuwen v. Mohamed Bin Salim Bakhshuwen [23] and by this court in Morris v. The English, Scottish and Australian Bank Ltd. [24] . Those authorities were discussed in Mayer v. Coe [25] and Ratcliffe v. Watters [26] and it was held that the Supreme Court of New South Wales should follow a decision of the Privy Council given on appeal from New Zealand, notwithstanding that it was in conflict with an earlier decision of this Court. At the time when Palmer v. The Queen was decided, it might have been expected that this Court would have treated itself as bound to follow that decision, notwithstanding that it was given on appeal from Jamaica.

[60]

The assumption made for the purpose of this question is that a man actually defending himself from the real or apprehended violence of the deceased has used more force than was justified by the occasion and that death has ensued from this use of excessive force. In all other respects, so it is assumed, the elements of a plea of self-defence existed. That is to say it is assumed that an attack of a violent and felonious nature, or at least of an unlawful nature, was made or threatened so that the person under attack or threat of attack reasonably feared for his life or the safety of his person from injury, violation or indecent or insulting usage. This would mean that an occasion had arisen entitling the person charged with murder to resort to force to repel force or apprehended force. Had he used no more force than was proportionate to the danger in which he stood, or reasonably supposed he stood, although he thereby caused the death of his assailant he would not have been guilty either of murder of manslaughter. But assuming that he was not entitled to a complete defence to a charge of murder, for the reason only that the force or violence which he used against his assailant or apprehended assailant went beyond what was needed for his protection or what the circumstances could cause him reasonably to believe to be necessary for his protection, of what crime does he stand guilty? Is the consequence of the failure of his plea of self-defence on that ground that he is guilty of murder or does it operate to reduce the homicide to manslaughter? He answered this question by saying that "it seems reasonable in principle to regard such a homicide as reduced to manslaughter" [44] . In the passage cited, Dixon C.J. appears to be describing, in decreasing order of gravity, the situations in which excessive force used in self-defence may reduce the homicide to manslaughter. His judgment suggests that it is enough that there was an attack which was unlawful, even though it was not violent or felonious, and that the person under attack feared for the safety of his person from insulting usage - not necessarily from injury. Taylor J. also appears to have given the principle wide scope - it was in his view "sufficient if it appears that what the accused did was done primarily for the purpose of defending himself against an aggressor" [45] . Menzies J. on the other hand expressly confined what he had to say to a case of self-defence against serious violence, though not necessarily felonious violence [46] . 1. (1958) 100 C.L.R., at p. 462. 2. (1958) 100 C.L.R., at pp. 460-461. 3. (1958) 100 C.L.R., at p. 461. 4. (1958) 100 C.L.R., at p. 468. 5. (1958) 100 C.L.R., at pp. 471, 474.

[63]

The fact that this Court in Reg. v. Howe allowed to remain obscure the question whether the principle which was there approved applies to every case of self-defence, or is limited to cases of self-defence against serious violence, casts doubt upon the validity of the principle, which would operate very differently depending on whether or not it is so limited. Let it first be supposed that it is correct to say that homicide caused by excessive force used in self-defence is not reduced to manslaughter unless the accused was defending himself against an attack involving serious violence. A person threatened with serious violence (which, it is of course assumed, is unlawful) could reasonably think it necessary to defend himself by using force which was intended to cause grievous bodily harm to his assailant. On the supposition now made (which accords with the view accepted in Victoria) an accused person, although placed in such a position of danger that he is lawfully entitled intentionally to inflict some grievous bodily harm on his assailant, may nevertheless be convicted of manslaughter if the amount of harm which he inflicts is greater than is considered reasonably necessary. If the principle is limited in this way, there can be very few cases to which it can properly be applied, because it will not be often that it is possible to say that although it was reasonable to inflict some grievous bodily harm, it was not reasonable to cause harm to the extent that actually occurred, or by the method actually used. However, a principle of this kind would seem completely unreal from a practical point of view. A person faced with a threat of serious violence cannot be expected to weigh calmly and meticulously the exact degree of force which he should use in self-defence. To allow a jury to return a verdict of manslaughter when it was reasonable for the accused to cause some grievous bodily harm in his own defence, but it was unreasonable for him to use as much force, or the kind of force, that he actually used, would detract from the practical value of the defence, and invite the possibility of a compromise verdict of manslaughter.

[108]

State courts are bound both by decisions of the Privy Council and of this Court. Formerly, when appeals could be taken from this Court to the Privy Council, State courts were bound to follow the Privy Council where a Privy Council decision conflicted with a decision of this Court. Under the new dispensation it is no longer appropriate that decisions of the Privy Council should be accorded higher authority in the Australian judicial system than decisions of this Court. As this Court is the ultimate appellate court in Australia and as it has the advantages mentioned earlier in deciding what is the appropriate law for Australia, State courts should, as a general rule, follow decisions of this Court in case of conflict. Of course every general rule has its exceptions or qualifications. Here an exception must be allowed for the case where the Privy Council, after taking into consideration a decision of this Court, has decided not to follow it. In such a case a State court should follow the Privy Council unless its decision appears to be based on considerations that are not relevant to Australian circumstances or conditions. If the State court follows the Privy Council in such a case it is more likely than not that an appeal will be brought to this Court, thereby enabling this Court to decide whether it will adhere to its earlier decision or whether it will adopt the later decision of the Privy Council. Despite the adoption of the rule in Bakhshuwen v. Bakhshuwen [32] and Morris v. English, Scottish and Australian Bank Ltd. [33] that a Privy Council decision on a question of law is binding on all courts from which an appeal lies directly or indirectly to the Privy Council, the recognition of the potential for different development of the common law in various countries entails that there will be some cases in which Australian conditions and circumstances are such as to require a Supreme Court to decline to follow the Privy Council decision. In some cases it will appear from the terms of that decision that it is based on considerations that are inapposite to Australia, but in other cases this conclusion may be drawn from other materials.

[111]

As the Court is not bound to follow either Reg. v. Howe [35] or Palmer v. The Queen [36] the conflict between the two decisions calls for a re-examination of the question. Speaking broadly, the available choice lies in acceptance or rejection of the proposition that in cases of self-defence the jury should be directed that, if the defence fails only because the jury considers the force used to be excessive, a verdict of manslaughter should be returned. The proposition is affirmed by the unanimous decision in Reg. v. Howe, by other Australian cases (see Reg. v. McKay [37] ; Reg. v. Bufalo [38] ; Reg. v. Haley [39] ; Reg. v. Enright [40] ; Reg. v. Turner [41] ; Reg. v. Tikos [No. 1] [42] ; Reg. v. Tikos [No. 2] [43] ) and by decisions of courts in British Columbia (R. v. Barilla [44] ), Ireland (The People (Attorney-General) v. Dwyer [45] ), Trinidad and Tobago (Johnson v. The Queen [46] ) and in Jamaica (Reg. v. Hamilton [1] ), although in the West Indian cases it was the proposition as formulated by Taylor J. in Reg. v. Howe that was affirmed. This formulation is a variant of the proposition stated by other members of the Court, in particular that expressed by Dixon C.J. The proposition stated by Dixon C.J. is consistent with the law as it has developed in some States of the United States. But its correctness has been denied by the Privy Council in Palmer v. The Queen and subsequently by the Court of Criminal Appeal in Reg. v. McInnes [2] . Earlier the proposition had been rejected in the West Indies in De Freitas v. The Queen [3] but this decision was not followed in Johnson v. The Queen and Reg. v. Hamilton. Since Reg. v. McKay was decided in 1957 the topic has been canvassed extensively and comprehensively in academic writings (see, for example, Norval Morris, The Slain Chicken Thief Sydney University Law Review vol. 2 (1958), p. 414; Morris and Howard, Studies in Criminal Law , Ch. 4 ; Howard, Australian Criminal Law (1965), pp. 80-83; "Two Problems in Excessive Defence" Law Quarterly Review, vol. 84 (1968), p. 343; Smith and Hogan, Criminal Law, 3rd ed. (1973), pp. 263 et seq).

[138]

But this proviso does not touch the present problem which centres upon the inclusion in the statutory definition of the words "with intent to kill or inflict grievous bodily harm" in s. 18 (1) and proviso (a). In earlier times the element of malice aforethought was supplied by the mere existence of an intent to kill or inflict grievous bodily harm except in those cases in which the formation of the intention was held to be excusable or justifiable, e.g. self-defence. At one time it was thought that the existence of provocation negatived the formation of an intention to kill or inflict such harm: see Holmes v. Director of Public Prosecutions [19] , per Viscount Simon. Now it is accepted that "The defence of provocation may arise where a person does intend to kill or inflict grievous bodily harm but his intention to do so arises from sudden passion involving loss of self-control by reason of provocation" (Attorney-General (Ceylon) v. Perera [20] ; Lee Chun-Chuen v. The Queen [21] ). Consequently, in the case of provocation, the intention to kill or inflict grievous bodily harm which, but for the extenuating circumstances in which it originates would have the quality of malice aforethought, lacks that quality, and the offence sinks to the level of manslaughter. Now that it has been acknowledged that provocation does not deny the existence of such an intention, no insurmountable barrier remains in the way of reaching the conclusion that circumstances giving rise to an occasion of self-defence also deprive an intention to kill or inflict grievous bodily harm formed in consequence thereof of the quality of malice aforethought. Then, if the response is not excessive, the accused commits no offence; if it is excessive, he is guilty of manslaughter. This outcome fits the modern conception of manslaughter, at least the voluntary aspect of manslaughter which embraces a voluntary killing which might have constituted murder but for the existence of a mitigating circumstance. Here that circumstance is to be found in the occasion which entitled the accused to resort to force in his own defence, the offence consisting in causing death by resorting to an excessive degree of force. There is a distinction between (a) the person who kills in self-defence; (b) the person who kills through resorting to excessive force for his own protection; and (c) the person who does not kill at all. The store which we set by the preservation of human life requires that the act of killing through an excessive degree of force, though in self-protection, should be adjudged unlawful and that the offence is of a lesser order than murder.

[181]

But these two alternatives which I have been discussing do not fully exhaust the possibilities. The words "belief on reasonable grounds" may refer not to a belief which a reasonable man would hold but to a belief so wholly unreasonable that no reasonable man could possibly hold it. Should the mere fact of an accused's belief be sufficient in such a case to acquit him of murder? There is a considerable difference between what a reasonable man would believe and what a reasonable man could believe. When we speak of what a reasonable man would believe, we are speaking of that reasonable man most familiar in the law of negligence. He is the type. He would do one thing and omit to do another thing. He would draw one inference, reach one belief. When we move from the conduct of the reasonable man so well known in the law of negligence, civil and criminal, to reasonableness of belief or cause or the like in the case of other torts and crimes, we move to different and often more uncertain ground. I would for example refer to the difficulties which have arisen in regard to the formulation that a comment to be fair must be capable of being reasonably inferred from truly stated facts (and the judge must so find) but the question for the jury is not whether they as reasonable persons would draw the inference but whether the inference was fairly and honestly drawn. See Gatley , 7th ed. (1974), par. 725 et seq. And in crime there is the vexed question whether a "defence" that there was no mens rea based on a mistake of fact requires that the mistake be one based on reasonable grounds in an objective sense. The cases and the learned writing on this subject (and on the associated subject of the defence of mistake in the case of statutory crimes which do not require mens rea) have been collected by McInerney J. in his judgment in Handmer v. Taylor [30] . The great difficulty of introducing an objective test of reasonableness into any part of the concept of mens rea is that crimes other than crimes of negligence can as a consequence be committed by a neglect to observe the standards of conduct of a reasonable man. As Professor Glanville Williams has observed in his Criminal Law - General Part, 2nd ed. (1961), p. 204 when discussing the bigamy cases, the view that unreasonable mistake is no defence to bigamy means that bigamy can be committed negligently. And I would refer without elaboration to the doubts which had arisen on the question whether there is need for reasonableness in an objective sense in an accused's belief as to consent in rape cases. I need do no more than refer to Reg. v. Morgan [31] where a majority in the House of Lords held that reasonableness of belief in a fully objective sense was not a necessary quality of the consent.

[186]

In their Lordships' view the defence of self-defence is one which can be and will be readily understood by any jury. It is a straight-forward conception. It involves no abstruse legal thought. It requires no set words by way of explanation. No formula need be employed in reference to it. Only common sense is needed for its understanding. It is both good law and good sense that a man who is attacked may defend himself. It is both good law and good sense that he may do, but may only do, what is reasonably necessary. But everything will depend upon the particular facts and circumstances. Of these a jury can decide. It may in some cases be only sensible and clearly possible to take some simple avoiding action. Some attacks may be serious and dangerous. Others may not be. If there is some relatively minor attack it would not be common sense to permit some action of retaliation which was wholly out of proportion to the necessities of the situation. If an attack is serious so that it puts someone in immediate peril then immediate defensive action may be necessary. If the moment is one of crisis for someone in imminent danger he may have to avert the danger by some instant reaction. If the attack is all over and no sort of peril remains then the employment of force may be by way of revenge or punishment or by way of paying off an old score or may be pure aggression. There may no longer be any link with a necessity of defence. Of all these matters the good sense of a jury will be the arbiter. There are no prescribed words which must be employed in or adopted in a summing up. All that is needed is a clear exposition, in relation to the particular facts of the case, of the conception of necessary self-defence. If there has been no attack then clearly there will have been no need for defence. If there has been attack so that defence is reasonably necessary it will be recognised that a person defending himself cannot weigh to a nicety the exact measure of his necessary defensive action. If a jury thought that in a moment of unexpected anguish a person attacked had only done what he honestly and instinctively thought was necessary that would be most potent evidence that only reasonable defensive action had been taken. A jury will be told that the defence of self-defence, where the evidence makes its raising possible, will only fail if the prosecution show beyond doubt that what the accused did was not by way of self-defence. But their Lordships consider, in agreement with the approach in the De Freitas Case [34] , that if the prosecution have shown that what was done was not done in self-defence then that issue is eliminated from the case. If the jury consider that an accused acted in self-defence or if the jury are in doubt as to this then they will acquit. The defence of self-defence either succeeds so as to result in an acquittal or it is disproved in which case as a defence it is rejected. In a homicide case the circumstances may be such that it will become an issue as to whether there was provocation so that the verdict might be one of manslaughter. Any other possible issues will remain. If in any case the view is possible that the intent necessary to constitute the crime of murder was lacking then that matter would be left to the jury. 1. [1974] A.C., at pp. 831-832. 2. (1960) 2 W.I.R. 523.

[198]

Barton explained that the appeal to the Privy Council in its present form in s. 74 of the Constitution was forced upon the Australian people by the British authorities and was accepted by the Australian negotiators "only as the price that had to be paid to prevent more drastic amendments of the Constitution" which had been agreed to by the people (Commonwealth Parliamentary Debates, vol. 13, p. 803). He then said: "If I had my own way I would have no appeals to the Privy Council" (p. 815). Senator O'Connor described the Privy Council as "altogether an unsuitable body to interpret our Constitution" and as "a most unsatisfactory tribunal" (vol. 15, p. 2699). He stated that it "would be very likely in the future to commit grave errors, as it has already committed them in the past". Isaac Isaacs said, "I cannot feel the same confidence in the Privy Council that I should have in an Australian court, in regard to Australian matters" (vol. 13, p. 731) and "I do not hesitate to say that the Privy Council is not a court in which we can place the fullest reliance in regard to the interpretation of our laws" (p. 732). Referring to the decisions of the proposed High Court, he said, "Those decisions are much more likely to be correct than would be the case if they were given by gentlemen unacquainted with our conditions, and in most cases, therefore, as unable to interpret the meaning of our statutes as if they were living in the planet Mars". In expressing a similar view, Deakin, Australia's first Attorney-General and later Prime Minister, referred to the famous Protest of the New Zealand Bench and Bar against the Privy Council after the decision in Wallis v. Solicitor-General [43] when Stout C.J. described the Privy Council decision as a cardinal blunder, made in ignorance of New Zealand laws and history and listed a series of other blunders they had made (see Appendix to New Zealand Privy Council Cases (1903), p. 730). Deakin then referred to other Privy Council errors, instancing Attorney-General (N.S.W.) v. Macleod [44] as a case where the Privy Council had allowed an appeal from the New South Wales Supreme Court through ignorance of a well-known New South Wales Act (Commonwealth Parliamentary Debates, vol. 13, p. 595).

[256]

The provisions of those Acts have changed that situation and have produced the result that this Court is in respect of all matters which reach it a court of ultimate appeal, i.e. a court from which no appeal, whether by leave or otherwise, lies to any higher tribunal. In parallel with that position however there is the position of the Supreme Courts of the States from which appeals still lie, as of right or by leave, direct to the Privy Council, the unsuccessful litigant having the choice of whether to appeal as of right or by leave (as the case may be) to this Court or to the Privy Council. The State Supreme Courts thus form part of two judicial hierarchies. They run partly in parallel with the hierarchy of courts exercising federal jurisdiction. If the State courts are exercising federal jurisdiction an appeal lies only to the High Court, there being no possibility now of an appeal to the Privy Council. In respect of State jurisdiction, however, the hierarchies may at the level of the Supreme Courts of the States diverge because it is from there that appeals may go either to the Privy Council or to this Court. The doctrine of precedent however is based upon the existence of a judicial hierarchy under which each court is bound to follow decisions of courts above it as a matter of legal policy, so as to give to the system an appropriate degree of certainty by which men may govern their lives. Some intermediate courts of appeal feel free to overrule their own decisions, but in any event the ultimate court of appeal may overrule the decisions of the courts below it and now ultimate courts of appeal are free to reverse their earlier decisions, though they do so only in exceptional circumstances. This has long been the position with the High Court. The High Court however has until now been bound by decisions of the Privy Council, whether given in cases from an Australian court or from other courts because the Privy Council stood at the apex of the hierarchy. The Court however has not in recent years regarded itself as bound by the decisions of the House of Lords.

[259]

This situation is one in which it is obvious that occasions may arise when the Privy Council and this Court will take a different view upon some matter of importance in the development of the law, and that is exactly what has happened in the present case. It is one thing for this Court to be faced with the problem of re-examining one of its own decisions in the light of a subsequent Privy Council decision and arriving at its own conclusion either to adhere to the view previously accepted or to overrule its previous decision in order to conform to the view expressed by the Privy Council, if satisfied that the latter view is to be preferred. It is quite another for the Supreme Courts of the States now to face such a conflict of authority. They are bound by the decisions of this Court, both in federal and non-federal matters, because this is a court from which appeals lie from the Supreme Courts, whatever jurisdiction they may be exercising. Equally however the State courts are bound by decisions of the Privy Council as a tribunal to which appeals from them lie in non-federal matters. If however the decisions of this Court and the Privy Council are in conflict, the Supreme Courts are placed in a position of great difficulty, a difficulty which cannot be solved by any general direction from this Court. Moreover a decision of this Court in an appeal from a Supreme Court to adhere to its previous view will not solve the problem if the same point arises in a later case, for they will still face a conflict of decisions of the Privy Council and the High Court. It is not difficult to visualize the situation where, whichever decision the Supreme Court follows, the unsuccessful litigant will seek to appeal to the tribunal which took the other view. No doubt "judicial restraint" may minimize the number of occasions when this problem will arise, but it remains one beyond the power of this Court and, as it seems to me, beyond the power of the Privy Council to resolve so long as each must, in accordance with its judicial duty, decide cases coming before it according to its best ability in accordance with the law as it sees it to be. Unsatisfactory though one must acknowledge it to be, it does not appear that any pronouncement by this Court or any direction which it may choose to give can solve the problem in the sense of ensuring that it does not occur. The choice of the tribunal to which the appeal may go from the Supreme Court is in the hands of the unsuccessful litigant who will naturally tend to appeal to the tribunal in which he thinks he will fare better and what sounder ground for preference can there be than an existing decision in his favour by that tribunal.

[273]

In their Lordships' view the defence of self-defence is one which can be and will be readily understood by any jury. It is a straightforward conception. It involves no abstruse legal thought. It requires no set words by way of explanation. No formula need be employed in reference to it. Only common sense is needed for its understanding. It is both good law and good sense that a man who is attacked may defend himself. It is both good law and good sense that he may do, but may only do, what is reasonably necessary. But everything will depend upon the particular facts and circumstances. Of these a jury can decide. It may in some cases be only sensible and clearly possible to take some simple avoiding action. Some attacks may be serious and dangerous. Others may not be. If there is some relatively minor attack it would not be common sense to permit some action of retaliation which was wholly out of proportion to the necessities of the situation. If an attack is serious so that it puts someone in immediate peril then immediate defensive action may be necessary. If the moment is one of crisis for someone in imminent danger he may have to avert the danger by some instant reaction. If the attack is all over and no sort of peril remains then the employment of force may be by way of revenge or punishment or by way of paying off an old score or may be pure aggression. There may no longer be any link with a necessity of defence. Of all these matters the good sense of a jury will be the arbiter. There are no prescribed words which must be employed in or adopted in a summing up. All that is needed is a clear exposition, in relation to the particular facts of the case, of the conception of necessary self-defence. If there has been no attack then clearly there will have been no need for defence. If there has been attack so that defence is reasonably necessary it will be recognised that a person defending himself cannot weight to a nicety the exact measure of his necessary defensive action. If a jury thought that in a moment of unexpected anguish a person attacked had only done what he honestly instinctively thought was necessary that would be most potent evidence that only reasonable defensive action had been taken. A jury will be told that the defence of self-defence, where the evidence makes its raising possible, will only fail if the prosectuion show beyond doubt that what the accused did was not by way of self-defence. 1. [1971] A.C., at pp. 831-832.