Zecevic v Director Of Public Prosecutions Vic

The relationship between the deceased and the Zecevic family, which was initially pleasant, began to deteriorate, largely, it seems, because of the deceased's repeated failure to close the security gates to the courtyard around which the units were erected and his failure to place his car in the garage provided.

On 16 July 1983, there was an altercation between the appellant and the deceased after the deceased had again left the gates open and left his car outside the garage. The appellant in his unsworn statement described that altercation and the events leading to the shooting of the deceased. He said that he had bought some bread and milk at a shop and returned home. He continued as follows:

I asked him why he didn't close the doors and why he didn't put his car in the garage. He got very angry with me and say, "What's it to you, I do what I like, I pay rent". I say, "Why do you think spend so much money on the doors?" and he said, "It's none of your business, I do what I like, I pay $115 rent". He won't close the doors and he went to his unit. I went to my unit and opened the door and I put the bread and milk on the steps. Then I went and knocked on his door. I was upset with him because he won't shut the gates. When I knocked on his door, the glass broke. He come to the door and looked very angry. His colour had changed and he was white. I asked him why he did not close the doors and why he did not put his car in the garage, and he say, "Wait a second," and went back inside. I stood back from his door and he come with his hands behind in his back and stabbed me. He stabbed me in the chest on the left side, on the left side, but I did not see the knife. I thought - I didn't know how bad I was stabbed. I was angry and very much scared. I ran inside to my unit.

He say, "I blow your head off". I believed he had a knife, and I thought he might have a shotgun in the car. I ran up to my bedroom. I was very angry and very frightened. I was not sure what I was doing at that stage. I got the gun and shells and went downstairs and loaded the gun. I could see Harry and I was very scared and upset. He was near his car, and I thought Harry was going to do something more to me, and he was going to, he was going to kill me. I had been stabbed already, and I thought he might have had a gun or something in the car.

After that I don't remember exactly what happened. I was lost. I remember I see him there and I shot. He was facing me when I start to shoot. I don't remember how many times, I don't remember how many time I shoot. At that time I was very frightened and angry and I wasn't myself at all. I knew I didn't want to kill him. I wanted to protect myself because I thought he was going to kill me.

Elsewhere in his unsworn statement the appellant said that the deceased, who was some years younger than him, had told him that he had a black belt in karate, that he was a boxer and lifted weights and that he kept something for protection in his car. There was some evidence given by the deceased's girlfriend that those facts were true, the article in the car being a large stainless steel barbecue fork.

Evidence was given by the appellant's brothers that immediately after the shooting they observed the deceased's body on the ground with a knife in his hand. The prosecution, however, led evidence from which it might be inferred that the knife came from the appellant's own unit and had been placed in the deceased's hand after the killing.

The issue of self-defence was raised but, notwithstanding the matters which the appellant asserted in his unsworn statement, that issue was withdrawn from the jury by the trial judge. His Honour took this course because he concluded that the only inference open upon the evidence was that the appellant did not reasonably believe that an unlawful attack which threatened him with death or serious bodily harm was being or was about to be made upon him. In so ruling the trial judge apparently had regard to the first of the propositions laid down in Viro v. The Queen [15] in the judgment of Mason J. It is convenient at this point to set out those propositions because, as will emerge, their relevance in this case extends beyond the first of them. They are as follows:

1.(a) It is for the jury first to consider whether when the accused killed the deceased the accused reasonably believed that an unlawful attack which threatened him with death or serious bodily harm was being or was about to be made upon him.

(b) By the expression "reasonably believed" is meant, not what a reasonable man would have believed, but what the accused himself might reasonably believe in all the circumstances in which he found himself.

If the jury is satisfied beyond reasonable doubt that there was no reasonable belief by the accused of such an attack no question of self-defence arises.

If the jury is not satisfied beyond reasonable doubt that there was no such reasonable belief by the accused, it must then consider whether the force in fact used by the accused was reasonably proportionate to the danger which he believed he faced.

If the jury is not satisfied beyond reasonable doubt that more force was used than was reasonably proportionate it should acquit.

If the jury is satisfied beyond reasonable doubt that more force was used, then its verdict should be either manslaughter or murder, that depending upon the answer to the final question for the jury - did the accused believe that the force which he used was reasonably proportionate to the danger which he believed he faced?

If the jury is satisfied beyond reasonable doubt that the accused did not have such a belief the verdict will be murder. If it is not satisfied beyond reasonable doubt that the accused did not have that belief the verdict will be manslaughter.

Counsel for the appellant contended that, even accepting the requirements of the first proposition, the evidence was sufficient in this case to require the issue of self-defence to be left to the jury, but he also submitted that the law relating to self-defence should not require that an accused person's belief that he is being threatened with death or serious bodily harm be a reasonable belief. It is sufficient, so it was contended, that an accused person hold an actual belief of that kind whether reasonable or not. That submission was dependent upon a contention that no distinction should be drawn between the definitional and defence elements of the crime. It was put that, notwithstanding that a plea of self-defence is by way of justification or excuse and therefore a defence to the charge, a rule creating such a defence merely supplies additional details of the scope of the relevant offence. The defence is a negative condition of the offence and is therefore an integral part of it: see Glanville Williams, Textbook of Criminal Law, 2nd ed. (1983), pp. 137-138. For that reason, so the argument continued, the mental element necessary to raise the plea bears, in a negative sense, upon the mens rea of the offence itself making it inappropriate in cases of homicide to require, in addition to the subjective requirement that the accused should believe that he is threatened with death or serious bodily harm, an objective requirement that the belief should be reasonable.

Although self-defence is still commonly referred to as a defence, the ultimate onus of proof with respect to self-defence does not rest on the accused. Since Woolmington v. Director of Public Prosecutions [16] , it has been clearly established that once the evidence discloses the possibility that the fatal act was done in self-defence, a burden falls upon the prosecution to disprove that fact, that is to say, to prove beyond reasonable doubt that the fatal act was not done in self-defence. The jury must be instructed accordingly whether or not the plea is actually raised by the accused: Director of Public Prosecutions v. Walker [17] .

1. [1935] A.C. 462. 2. [1974] 1 W.L.R. 1090, at p. 1094.

Nevertheless, the modern law of self-defence has its origin in rules which distinguished between justifiable and excusable homicide. The importance of the distinction lay largely in the different consequences of successful pleas of justification and excuse and now is a matter of history. Justifiable homicide carried with it commendation rather than blame and accordingly entitled the accused to total acquittal, entailing no forfeiture and requiring no pardon. It extended to killing done in the execution of justice, which came to include both the apprehension of felons and the prevention of felonies and thus those cases of self-defence which were in response to a felonious attack by the deceased. Excusable homicide, on the other hand, was not entirely without blame and merely excused rather than acquitted, requiring, at first, a pardon and involving, for a somewhat longer period, forfeiture. It was concerned, not with the execution of justice, but with a necessary and reasonable response to a threat to life and limb: see Reg. v. Lawson and Forsythe [18] , per Ormiston J.; Dixon, The Development of the Law of Homicide, Australian Law Journal, vol. 9 (Supp.) (1935), p. 64; Snelling, Killing in Self-Defence, Australian Law Journal, vol. 34 (1960), p. 130. Any practical distinction between justifiable homicide and excusable homicide disappeared with the abolition of forfeiture by statute in 1828 and today it is no part of the law in Australia to differentiate between the two: see 9 Geo. IV, ch. 31, s. 10, (U.K.) enacted in Victoria from time to time; cf. Crimes Act 1958 Vict., s. 7, repealed by the Crimes (Classification of Offences) Act 1981 Vict., s. 11(1). But the history of the matter serves to explain why the requirement of reasonableness, which was a requirement of excusable homicide, has remained part of the law of self-defence. Moreover, it establishes why that requirement ought not be regarded as a definitional element of the offence in question but as going rather to exculpation. True it is that in result a successful plea of self-defence resembles justification rather than excuse because it entitles the accused to a full acquittal, but in scope and in practice nowadays the plea has a greater connection with excusable homicide, being in most cases related to the preservation of life and limb rather than the execution of justice.

To require as part of the law of self-defence that the accused should reasonably have believed that he was threatened with death or serious bodily harm was said by counsel for the appellant to be a misapplication, presumably by analogy, of the common law defence of mistake of fact which requires the mistake to be both honest and reasonable. Whilst it was conceded that a requirement of reasonableness was appropriate in the case of a defence to an offence of strict liability, it was submitted that it was entirely inappropriate in the case of a plea of self-defence which operates as a defence to offences requiring mens rea. However, the history and purpose of the law of self-defence do not support the suggestion made. Self-defence, as we now know it, was essentially exculpatory in its origin and the fact that it now falls to be excluded by the prosecution rather than proved by the defence does not alter its true nature. Moreover, after a period of some uncertainty it has been established in He Kaw Teh v. The Queen [19] that if the question of honest and reasonable mistake arises, the ultimate burden rests upon the prosecution to prove the absence of the exculpatory belief. As Brennan J. put it [20] : " the absence of an exculpatory belief is now seen as a form of mens rea implied in certain circumstances as an element in a statutory offence the onus of proving which rests on the prosecution." See also per Gibbs C.J. [21] , Wilson J. [22] and Dawson J. [23] . There is, therefore, no relevant distinction between honest and reasonable mistake and self-defence which lends support to the appellant's argument.

1. (1985) 157 C.L.R. 523. 2. (1985) 157 C.L.R., at p. 580. 3. (1985) 157 C.L.R., at p. 534. 4. (1985) 157 C.L.R., at pp. 553, 558. 5. (1985) 157 C.L.R., at pp. 593-594.

Putting to one side the question of the sufficiency of the evidence, what we have said would be enough to dispose of the submissions made on behalf of the appellant which were directed against the first of the six propositions formulated by Mason J. and accepted by a majority in Viro. However, argument extended to the re-examination of all of those propositions, this being in accordance with the basis upon which special leave to appeal was granted.

The six propositions were intended to state in summary form the issues which arise for the determination of a jury when a plea of self-defence is raised in a case of homicide. To the extent that they deal with the use of excessive force, they are based upon the view expressed by Dixon C.J. in Reg. v. Howe [24] . In expressing that view, Dixon C.J. assumed that an occasion for self-defence had arisen and that the force or violence used went beyond what was needed for the protection of the accused or what the accused could reasonably have believed was necessary for his protection. Upon those assumptions Dixon C.J. asked what crime was committed as a result and his reply was as follows [25] :

There is no clear and definite judicial decision providing an answer to this question but it seems reasonable in principle to regard such a homicide as reduced to manslaughter, and that view has the support of not a few judicial statements to be found in the reports. That view, which in Howe was adopted by McTiernan and Fullagar JJ., was not accepted by the Privy Council in Palmer v. The Queen [26] but in Viro it was unanimously held that this Court is no longer bound by decisions of the Privy Council. Whilst the correctness of the decision in Howe was the basis upon which Mason J. enunciated certain of the propositions in Viro, those propositions were accepted by Gibbs J. [27] , Jacobs J. [28] and Murphy J. [29] only for the purpose of achieving a measure of certainty in a situation of diversity of opinion and Barwick C.J. was in dissent. The status of Viro as an authority upon the use of excessive force in self-defence is, for this reason, open to question. Moreover, it is apparent that difficulties have been experienced in instructing juries in accordance with the fifth and sixth propositions in Viro which, being based upon Howe, necessarily contain refinements which cannot be expressed in a way which makes them readily understandable. It is for these reasons that it is appropriate to turn once again to Viro. 1. (1958) 100 C.L.R. 448, at pp. 460-461. 2. (1958) 100 C.L.R., at p. 461. 3. [1971] A.C. 814. 4. (1978) 141 C.L.R., at p. 128. 5. (1978) 141 C.L.R., at p. 158. 6. (1978) 141 C.L.R., at p. 171.

The relevant issue in Viro was whether manslaughter is the appropriate verdict where only the use of excessive force stands in the way of an acquittal upon a charge of murder. Only three Justices (Stephen, Mason and Aickin JJ.) were of the view that manslaughter was the appropriate verdict and in so holding relied upon Howe and the rationale that "the moral culpability of a person who kills another in defending himself but who fails in a plea of self-defence only because the force which he believed to be necessary exceeded that which was reasonably necessary falls short of the moral culpability ordinarily associated with murder": Viro [30] , per Mason J. On the other hand, the remaining four Justices (Barwick C.J., Gibbs, Jacobs and Murphy JJ.) were, for differing reasons, of the view that Howe should not be followed and that 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": see Palmer [31] . Barwick C.J. and Gibbs J. preferred the approach of the Privy Council in Palmer [32] :

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. Jacobs J. gave the defence a wider scope by saying that as long as the accused believed that he had used only the necessary amount of force in self-defence, then there should be an acquittal, provided that the belief was not irrational [33] . Murphy J. went even further and abandoned any objective test, holding that a belief on the part of the accused that he was defending himself was sufficient to lead to acquittal [34] . 1. (1978) 141 C.L.R., at p. 139. 2. [1971] A.C., at p. 832. 3. [1971] A.C., at p. 831. 4. (1978) 141 C.L.R., at pp. 156-158. 5. (1978) 141 C.L.R., at p. 168.

In those circumstances, it seems desirable to restate the law relating to self-defence with such assistance as might be gained from Howe, Palmer and Viro. It is, we think, unnecessary to go to the earlier cases touching upon the consequences of the use of excessive force in self-defence. As Dixon C.J. recognised in Howe, they provide no clear and definite result and they in fact led to different conclusions in Howe and Palmer. Perhaps, however, some mention should be made of Reg. v. McKay [35] in which Lowe J. laid down the proposition:

If the occasion warrants action in self-defence or for the prevention of felony or the apprehension of the felon, but the person taking action acts beyond the necessity of the occasion and kills the offender, the crime is manslaughter - not murder. The Full Court of the Supreme Court of South Australia in Howe [36] placed considerable reliance upon this passage and it was the view of that Court which was upheld in Howe. However, the proposition laid down in McKay suffers from a serious defect in that it does not require the accused to have believed that the excessive force was necessary. There may be some explanation for this inadequacy, though hardly satisfactory, in the fact that McKay was a case of the apprehension of a felon rather than a case of self-defence. But it is a shortcoming which, as Taylor J. observed in Howe [37] , weakens considerably any support which may be derived from McKay for the test ultimately propounded by the majority in Howe. 1. [1957] V.R. 560, at p. 563. 2. [1958] S.A.S.R. 95. 3. (1958) 100 C.L.R., at p. 467.

It is apparent, we think, from the difficulties which appear to have been experienced in the application of Viro, that there is wisdom in the observation of the Privy Council in Palmer that an explanation of the law of self-defence requires no set words or formula. The question to be asked in the end is quite simple. It is whether the accused believed upon reasonable grounds that it was necessary in self-defence to do what he did. If he had that belief and there were reasonable grounds for it, or if the jury is left in reasonable doubt about the matter, then he is entitled to an acquittal. Stated in that form, the question is one of general application and is not limited to cases of homicide. Where homicide is involved some elaboration may be necessary.

Murder consists of an unlawful killing done with intent to kill or to do grievous bodily harm. Recklessness may be put to one side as having no apparent relevance in the context of self-defence. Manslaughter also consists of an unlawful killing, but without such an intent. A killing which is done in self-defence is done with justification or excuse and is not unlawful, though it be done with intent to kill or do grievous bodily harm. However, a person who kills with the intention of killing or of doing serious bodily harm can hardly believe on reasonable grounds that it is necessary to do so in order to defend himself unless he perceives a threat which calls for that response. A threat does not ordinarily call for that response unless it causes a reasonable apprehension on the part of that person of death or serious bodily harm. If the response of an accused goes beyond what he believed to be necessary to defend himself or if there were no reasonable grounds for a belief on his part that the response was necessary in defence of himself, then the occasion will not have been one which would support a plea of self-defence. That is to say, the killing will have been without justification or excuse and it will be for the jury to determine how it must be regarded. If it was done with intent to kill or to do grievous bodily harm, then unless there was provocation reducing it to manslaughter, it will be murder. In the absence of such an intent it will be manslaughter: see Viro [38] .

When upon the evidence the question of self-defence arises, the trial judge should in his charge to the jury place the question in its factual setting, identifying those considerations which may assist the jury to reach its conclusion. In attempting to identify those considerations in any abstract manner here, there is a danger of appearing to elevate matters of evidence to rules of law. For example, it will in many cases be appropriate for a jury to be told that, in determining whether the accused believed that his actions were necessary in order to defend himself and whether he held that belief on reasonable grounds, it should consider whether the force used by the accused was proportionate to the threat offered. However, the whole of the circumstances should be considered, of which the degree of force used may be only part. There is no rule which dictates the use which the jury must make of the evidence and the ultimate question is for it alone. The trial judge should also offer such assistance by way of comment as is called for in the particular case. No doubt it will often also be desirable to remind the jury that in the context of self-defence it should approach its task in a practical manner and without undue nicety, giving proper weight to the predicament of the accused which may have afforded little, if any, opportunity for calm deliberation or detached reflection.

There is, however, one situation which requires particular mention. It should, we think, be regarded as raising only evidentiary matters to be considered in arriving at an answer to the ultimate question, although in the code States it is treated as raising matters of law: see s. 272 of the Criminal Code 1899 Q.; s. 249 of the Criminal Code 1913 W.A.; s. 47 of the Criminal Code 1924 Tas.. Where an accused person raising a plea of self-defence was the original aggressor and induced or provoked the assault against which he claims the right to defend himself, it will be for the jury to consider whether the original aggression had ceased so as to have enabled the accused to form a belief, upon reasonable grounds, that his actions were necessary in self-defence. For this purpose, it will be relevant to consider the extent to which the accused declined further conflict and quit the use of force or retreated from it, these being matters which may bear upon the nature of the occasion and the use which the accused made of it. Indeed, even in circumstances in which the accused was not the original aggressor, retreat in the face of a threat of violence before resort to force may be relevant to the belief of the accused or the reasonableness of the grounds upon which the accused based his belief. There is, however, no longer any rule that the accused must have retreated as far as possible before attempting to defend himself. It is a circumstance to be considered with all the others in determining whether the accused believed upon reasonable grounds that what he did was necessary in self-defence: Howe, per Dixon C.J. [39] ; Viro, per Gibbs J. [40] .

1. (1958) 100 C.L.R., at pp. 462-464. 2. (1978) 141 C.L.R., at pp. 115-116.

What we have said involves a departure from the propositions which were accepted in Viro, but it is necessary to refer specifically to only two of the differences. In Viro self-defence is confined to a response to an unlawful attack, whereas the law as we have explained it is not so confined. Whilst in most cases in which self-defence is raised the attack said to give rise to the need for the accused to defend himself will have been unlawful, as a matter of law there is no requirement that it should have been so. This is demonstrated by the exhaustive examination of authority carried out by Ormiston J. in Reg. v. Lawson and Forsythe. Thus, for example, self-defence is available against an attack by a person who, by reason of insanity, is incapable of forming the necessary intent to commit a crime. It is, however, only in an unusual situation that an attack which is not unlawful will provide reasonable grounds for resort to violence in self-defence. The whole of the surrounding circumstances are to be taken into account and where an accused person has created the situation in which force might lawfully be applied to apprehend him or cause him to desist - where, e.g., he is engaged in criminal behaviour of a violent kind - then the only reasonable view of his resistance to that force will be that he is acting, not in self-defence, but as an aggressor in pursuit of his original design. A person may not create a continuing situation of emergency and provoke a lawful attack upon himself and yet claim upon reasonable grounds the right to defend himself against that attack.

The second difference lies in the treatment of the use of excessive or disproportionate force. As we have expressed the law, the use of excessive force in the belief that it was necessary in self-defence will not automatically result in a verdict of manslaughter. If the jury concludes that there were no reasonable grounds for a belief that the degree of force used was necessary, the defence of self-defence will fail and the circumstances will fall to be considered by the jury without reference to that plea. There is some force in the view, adopted by Stephen, Mason and Aickin JJ. in Viro, that this may result in the conviction for murder of a person lacking the moral culpability associated with that crime. Experience would suggest, however, that such a result is unlikely in practice. As the Court of Appeal in England pointed out in McInnes [41] :

it is important to stress that the facts upon which the plea of self-defence is unsuccessfully sought to be based may nevertheless serve the accused in good stead. They may, for example, go to show that he may have acted under provocation or that, although acting unlawfully, he may have lacked the intent to kill or cause serious bodily harm, and in that way render the proper verdict one of manslaughter. And, as we have already said, an accused person is not liable to be convicted of murder unless the jury is satisfied beyond reasonable doubt that there was an intention to kill or do grievous bodily harm. 1. (1971) 55 Cr. App. R. 551, at p. 562.

We have anxiously considered whether the departures which we propose from Howe and Viro could occasion injustice to persons presently awaiting trial for offences where self-defence may be raised, including the present appellant in the event of a new trial. For the reasons which we have given we think this unlikely. Of course, the risk of injustice, however slight, must be weighed carefully. On the other hand, there are compelling reasons for the course which we propose. Special leave was granted in this case to enable a review of the common law relating to self-defence as it was expounded in Viro. A Full Court of seven members was convened for the purpose. Believing, as we do, that the law as we have set it out is dictated by basic principle upon a matter of fundamental importance, it is unthinkable that the Court should abdicate its responsibility by declining to declare it accordingly. It has the virtue of being readily understandable by a jury. It restores consistency to the law relating to self-defence whether raised in a case of homicide or otherwise. Finally, it has the effect of expressing the common law in terms which are in accord with the views expressed in Palmer (adopted in England in McInnes ) and which are generally consonant with the law in the code States.

Turning to the evidence in this case, it is necessary to bear in mind that it was entirely for the jury to determine whether the appellant's version of events was true: Lee Chun-Chuen v. The Queen [42] . Moreover, the appellant had only to raise a reasonable doubt in the minds of the jury to entitle him to succeed in his defence. As Gibbs J. observed in Reg. v. Muratovic [43] , " the plea of self-defence may seem to a judge to be weak and tenuous, but it is for a jury not a judge to decide upon a plea of this kind, as upon any other question of fact, provided that there is evidence on which a reasonable jury could decide the issue favourably to the accused".

1. [1963] A.C. 220, at p. 230. 2. [1967] Qd R. 15, at p. 20.

The issue of self-defence was squarely raised. Clearly there was evidence upon which the jury could conclude that the appellant believed it was necessary to do what he did in order to defend himself. There was also evidence of the grounds for that belief. Whether those grounds were reasonable was a matter for the jury. Upon the account given by the appellant in his unsworn statement, he had been stabbed by the deceased a short time before he fired the fatal shots. There was evidence of an injury consistent with his statement. The appellant said that the deceased had threatened to "blow his head off". He said that he believed that the deceased may have had a shotgun in his car and that it was necessary to act in order to defend himself. The weakness in the appellant's case was the fact that he went to his own flat after the deceased threatened him and, after an interval of time had elapsed, re-emerged at the scene of the shooting. However, if the jury believed the appellant, it is not inconceivable that it might have adopted a view of the facts which would have favoured him in his defence of self-defence. The issue should have been left to the jury.

I agree with Wilson, Dawson and Toohey JJ. that the ultimate question for the jury in a case where the evidence discloses a possible occasion of self-defence is "whether the accused believed upon reasonable grounds that it was necessary in self-defence to do what he did". In the typical case, that question suffices to bring to the attention of the jury the issues of fact which arise when, in law, the defence is open. Thus, when an accused is unlawfully attacked with deadly force in the course of a conflict which he initiated, an answer to the question proposed will take account of any failure by the accused to take an opportunity to retreat from the conflict. The 1879 Report of the Royal Commission on the Law relating to Indictable Offences (U.K.), at p. 44, expressed a misgiving that a test stated in substantially these terms would justify "every weak lad whose hair was about to be pulled by a stronger one, in shooting the bully if he could not otherwise prevent the assault" but, in my opinion, an answer to the question as proposed will take account of any want of proportionality between the force applied to the accused and the force used to repel it: see Barwick C.J. in Viro v. The Queen [44] . However, the question is too widely stated if an affirmative answer would entitle an accused to acquittal on the grounds of self-defence when the force against which he defends himself is lawfully applied.

When the defence of self-defence is available to an accused, it justifies or excuses the doing of the act charged in the indictment; in a case of homicide, it justifies or excuses the act which is alleged to have caused the death. Although, in a case of homicide, an accused may have believed on reasonable grounds that it was necessary to do the fatal act in order to defend himself against force being threatened or applied by the deceased, the killing will not be held to be justified or excused if the deceased threatened to apply or applied no more than lawful force. Self-defence is not a charter to kill or assault those who are under a duty or who have a right to apply force to the accused. In the days of capital punishment, a condemned man could not have killed the hangman in self-defence. A person who is being lawfully arrested is not entitled to defend himself by using force to resist the arrest, even if he be innocent of the offence for which he is being arrested. A prisoner escaping from a gaol cannot justify or excuse shooting a warder though he believes on reasonable grounds that the warder was trying to shoot him and that it was necessary to shoot back to avoid being killed. A man who threatens deadly force to a person who is attempting to rape his wife or child cannot be killed with impunity by the would-be rapist, even if he believes on reasonable grounds that he will otherwise be killed. The lawful application of force, even deadly force, does not confer on the person to whom it is applied any legal authority, justification or excuse to resist it.

It follows that the defence of self-defence is not available when the force against which the accused defends himself is lawfully applied. This principle was expressed by Gibbs J. in Viro [45] :

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. In Reg. v. Lawson and Forsythe [46] , where the Full Court of the Supreme Court of Victoria dutifully followed Viro, Ormiston J. found this qualification on the availability of the defence of self-defence difficult to accept. In the course of a judgment written after deep research, his Honour referred to three cases from the thirteenth century as the only examples of self-defence "against acts by a victim which were not felonious and not criminally unlawful" [47] . In two of the cases, the victim was insane; in the third the victim attacked the accused in the mistaken belief that he was attacking a thief whom he and the accused were pursuing. His Honour appears to have thought that when "unlawful" is used in the context of the law of self-defence to describe the force or violence against which the accused defends himself, it is used to connote the criminal responsibility of the victim for an offence. If the term had been used to connote criminal responsibility, then his Honour would have been right to regard the test of unlawfulness as inappropriate. One example will suffice, however, to show that "unlawful" is not used to connote the criminal responsibility of the victim for an offence, but to connote violence which is not authorized, justified or excused by law whatever be the state of mind of the person who inflicts it. Sir James Fitzjames Stephen, in his Digest of the Criminal Law, 3rd ed. (1883), p. 136, stated the general rule governing all cases of self-defence - he called it "private defence" - thus: The intentional infliction of death or bodily harm is not a crime when it is inflicted by any person in order to defend himself or any other person from unlawful violence, provided that the person inflicting it observes the following rules. (Emphasis added.) After setting out a number of subsidiary rules, the learned author gave as the leading illustration of his proposition an instance where the force against which an accused defended himself had been inflicted by a victim who could have had no mens rea (p. 138): A, a madman, violently attacks B in such a manner as to cause instant danger to B's life. B may kill A, though A is not committing any crime. The footnote to the illustration makes it clear that the unlawful violence to which he refers in the proposition may be inflicted by a person of sound mind who has no mens rea: This seems to follow directly from the authorities cited. So, if A were under a mistake of fact which B had no time to explain. In the Code drafted by Sir Samuel Griffith, "unlawful" is used in the self-defence provisions to describe the character of the force against which a person may defend himself, not to describe force applied by a victim who is criminally responsible for applying it: see the Criminal Code Q., ss. 246, 271; W.A., ss. 223, 248, which operate independently of the criminal responsibility provisions in Ch. V. The provisions of the Griffith Code relating to self-defence followed the 1880 Bill based on the 1879 Report of the Royal Commission. 1. (1978) 141 C.L.R., at p. 116. 2. [1986] V.R. 515. 3. [1986] V.R., at p. 556.

Once "unlawful" is understood to describe force which is not authorized, justified or excused by law whatever be the state of mind of the person who applies it, there is no difficulty in accepting the correctness (as Ormiston J. accepted the authority [48] of "six decisions of the Full Court and Viro's Case in the High Court which have deliberately posed tests which require the victim's attack to be unlawful". In many cases where self-defence is raised, the question of the unlawfulness of the force against which the accused is said to have defended himself will not be a live issue and the trial judge will not need to give the jury a direction on it. In many cases, too, the question of unlawfulness will require consideration of the same evidence as that which bears on the accused's belief on reasonable grounds that it was necessary in self-defence to do the act charged. When a victim is merely defending himself against an attack initiated by the accused, using no more force than is reasonably necessary for the purpose, so that the accused cannot claim that he is justified or excused in applying further force to his victim, it does not matter whether the accused's defence fails because the force against which he suggests he was defending himself was not unlawful or because he could not have believed on reasonable grounds that it was necessary for him to apply further force to defend himself. But the defence is available only if both criteria are satisfied. In Viro, Gibbs J. pointed out that self-defence is not a defence available to the original aggressor in a conflict either when the original victim uses lawful force to resist him or when the original victim uses unlawful force but the original aggressor does not believe on reasonable grounds that it is necessary to do what he did to defend himself. He said [49] :

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. 1. [1986] V.R., at p. 579.) 2. (1978) 141 C.L.R., at pp. 116-117.

The test of belief on reasonable grounds of the necessity to do what is done in self-defence, if it be adopted as an exhaustive test, would extend the defence to cases where the accused is defending himself against lawful force. The test would not exclude cases where the accused does nothing to court the lawful application of force to him (as in the case of the lawful arrest of an innocent man) or where he does something unlawful but not necessarily violent which causes the lawful application of force to him (as in the case of a prisoner who tries to escape from lawful custody) or where lawful force is threatened or applied to him by the victim in protection of a third party (as in the case of an attack by the accused on the third party). In any of these cases, the person who threatens to apply or applies force to the accused initiates the violence against which the accused defends himself and the accused might have reasonable grounds to believe that, if he does not do what is necessary to defend himself, that force will be applied or will continue to be applied to him. Unless a criterion of defence against unlawful force is adopted, the defence of self-defence may be extended to cases of these kinds. That is because one cannot say that the accused's initial conduct (if any) which evoked the threat to apply (or the application of) lawful force to himself is inconsistent with his subsequent belief on reasonable grounds that it was necessary to defend himself against the violence which that conduct evoked. An accused bent on wrong-doing would ordinarily expect or desire that he could avoid the application to himself of lawful force which would thwart his plan. One could not avoid the inappropriate extension of the defence by applying the reasonable belief test to an entire situation from start to finish: self-defence is a justification or excuse for the doing of the precise act charged; the surrounding circumstances may be highly relevant as evidence of the accused's belief and of his grounds for that belief, but the defence would not be excluded merely by showing that the accused ought not to have brought about the sequence of events in which he did the act charged.

However, if the unlawful force test were to be abandoned, I would respectfully agree with what Ormiston J. said in Reg v. Lawson and Forsythe [50] :

Whatever test should be substituted, it should certainly not be one which entitled an accused to create a situation of emergency and to provoke an attack upon himself, and yet claim the right to defend himself against that attack by shooting or killing his assailant. What I have read in the authorities referred to above in no way suggested that the law ever countenanced such a response as amounting to self-defence. Some criterion of this kind is essential. History and authority point to the unlawful force test and, for my part, I would adhere to it. I would therefore add a further question to the question proposed by Wilson, Dawson and Toohey JJ. Was the force or threatened force against which the accused reasonably believed it was necessary to defend himself such that a person in the victim's position was not lawfully entitled to apply it? 1. [1986] V.R., at p. 580.

Subject to these observations, I agree with what their Honours have written. I would allow the appeal.

The judicial function in relation to a criminal trial by jury is essentially the subservient one of ensuring that the jurors are able to and do in fact comprehend what is involved in the issue or issues of fact which it is their, and only their, duty to determine. The effective discharge of that judicial function requires that care be taken by appellate courts and trial judges to avoid treating factual arguments and considerations, which may be involved in the resolution of an issue of ultimate fact, as if they were legal principles requiring or precluding the resolution of the issue in a particular way. Law cannot exist in a vacuum and the elucidation of legal principle must inevitably, if it is to be related to reality, proceed by way of factual analogy and illustration. The processes of such legal reasoning do not however transform factual argument into legal principle or require that factual considerations and illustrations be subsequently treated as legal propositions which limit and control a jury in applying its own standards and reaching its own conclusions in relation to the factual issues which the law entrusts to its decision. The effective discharge of that subservient judicial function also requires that legal principles governing criminal liability which are developed by appellate courts be capable of effective oral exposition and that summary statements of such legal principles in judgments which are framed on the basis that they will be read by lawyers are not mistakenly seen as rendering unnecessary the framing of oral directions to a jury in words which can be readily understood by an ordinary juror.

The formulation in Viro v. The Queen [51] of a summary statement of the task of the jury in deciding an issue of self-defence on a murder trial was intended to provide a concise statement of principle to which reference could be made by a trial judge in framing, in language suitable for a jury, legal directions appropriate to enable the jury correctly to identify and comprehend the real questions of fact which must be resolved in deciding such an issue in a particular case. The concurrence of a majority of the Court in that formulation and the inherent complexity of some of the notions which it encapsulated made it perhaps inevitable that it would be seen by some trial judges as providing a convenient and safe set of directions to be given verbatim to a jury in any such case. The use of the formulation in that way creates a situation in which an ordinary juror must experience extreme difficulty in comprehending the process which he and his fellow jurors are being instructed to follow in determining an issue of self-defence. In part, that difficulty is the predictable result of the use for the purpose of giving oral directions to a jury of a formulation which was framed to be read by lawyers. In part, it results from the fact that the formulation synthesizes summary expositions of two distinct matters of legal principle: the elements of self-defence as a defence to murder and/or manslaughter and the effect of the application of the criminal onus of disproof which rests upon the Crown in relation to such a defence. If it had resulted only from those causes, the difficulty could, no doubt, be avoided or overcome by careful explanation in appropriately framed oral directions: cf., e.g., Morgan v. Colman [52] ; per Street C.J., Reg. v. McManus [53] . In part however, the difficulty of comprehension of the formulation by an ordinary juror arises from the complicated nature of the actual process to which it commits him in the resolution of what should be an essentially uncomplicated issue of fact, namely, whether the accused was acting in self-defence. In particular, it lies in the different guises in which the concept of reasonableness appears.

1. (1978) 141 C.L.R. 88, at pp. 146-147. 2. (1981) 27 S.A.S.R. 334, at p. 335ff. 3. (1985) 2 N.S.W.L.R. 448, at pp. 461-462.

Under the Viro formulation, the element of "reasonableness" arises at three different stages as the essential component of distinct requirements or tests. The first stage is in the requirement that the perception of the accused that there existed an occasion of self-defence must have been reasonable in the sense "not [of] what a reasonable man would have believed, but what the accused himself might reasonably believe in all the circumstances in which he found himself". If the accused's perception of an occasion of self-defence was unreasonable in the context of his actual circumstances, the effect of the formulation is that the defence fails completely. "[N]o question of self-defence arises." The second stage at which the element of reasonableness arises under the Viro formulation is that the force used must have been "reasonably proportionate to the danger which [the accused] believed he faced". The "danger" for the purposes of this test of reasonableness is not the actual danger but the danger which the accused believed existed. If there was no such reasonable proportionality but the elements of the defence are otherwise not disproved, the defence necessarily fails as a defence to manslaughter. Whether, in such a case, it also fails as a defence to murder depends upon the third test of reasonableness, namely, whether the accused believed that "the force which he used was reasonably proportionate to the danger". The element of reasonableness at this third stage is different from that involved in the other two tests. It alone is completely subjective in the sense that it requires no more than a subjective belief that reasonable proportionality existed where in fact it did not.

The primary argument advanced on behalf of the present appellant was a general one directed against the inclusion in the Viro formulation of any element of objective reasonableness. As a matter of principle, though not of authority or legal history, there is considerable strength in that argument. If demonstration of that strength be necessary, one need go no further than the judgments of Jacobs J. (whose approach was propounded by the appellant as the preferable one) and Murphy J. in Viro itself. Jacobs J. and Murphy J. were, however, in dissent in Viro on this point. All other members of the Court were of the view that an objective element of reasonableness is a constituent of self-defence as a complete defence in a case of homicide. The approach of the majority in Viro in that regard conformed with authority in this country and accords with the approach which has been generally accepted in other countries of the common law world. As will be seen, the difficulties in the Viro formulation can be resolved without the wholesale reversal of the law of self-defence for which the appellant contends. In my view, there is simply no warrant for such a wholesale reversal of what I see as settled law. That being so, the appellant's primary argument must be rejected and the starting point of a consideration of the present case must be acceptance of the proposition, for which Viro is clear authority, that an objective element of reasonableness is a constituent of self-defence as a complete defence in a case of homicide. The question arises whether it is none the less necessary to retain the first and second stage tests of reasonableness as different and distinct tests.

The first and second stage requirements of reasonableness under the formulation are, upon analysis, a mixture of the objective and subjective. The accused's belief that an unlawful attack of the relevant kind was being made upon him must have been reasonable not in the completely objective sense of what a reasonable man would have believed but in the qualified objective sense of what the accused himself might reasonably believe in all the circumstances in which he found himself. The second stage requirement is again not a completely objective one. It is that the force in fact used by the accused was reasonably proportionate to the danger which he believed he faced. Under the words of the formulation, it is arguable that there is a subtle difference in nature between the notions of reasonableness conveyed by the first and second stage requirements in that the first, as worded, is of the reasonableness of the subjective belief of an unlawful attack whereas the second, as worded, is of the reasonableness not of a subjective belief of proportionality but of actual proportionality between force used and perceived danger. Such a subtle difference in nature would be open to the valid objection that it was more likely to bemuse than to assist a jury. Upon analysis however, it seems to me that no such difference in nature was intended. When it is read in the context of the judgments of Stephen, Mason, Jacobs and Aickin JJ. in Viro and of the judgment of Dixon C.J. (in which McTiernan and Fullagar JJ. concurred) in Reg. v. Howe [54] , the second stage requirement of reasonableness in the Viro formulation can be seen as intended to reflect the second of the two tests of proportionality which Dixon C.J. propounded in alternative form throughout his judgment in Howe. Dixon C.J. initially expressed that test [55] in words which, like those of the Viro formulation, literally indicate a requirement of actual proportionality between the force used and the perceived danger: "no more force than was proportionate to the danger in which he reasonably supposed he stood". In a more detailed statement of the test subsequently in his judgment however, Dixon C.J. indicated that he did not intend, by that wording, to convey anything more than the need for a reasonably held belief on the part of the accused that there was proportionality between the force used and the reasonably perceived danger ("what the circumstances could cause him reasonably to believe" to be necessary for his protection) [56] . If, as I think it should be, the second stage test of reasonableness in the Viro formulation is read in that sense, there is no difference in nature between it and the first stage test. Each consists of a requirement that a subjective perception or belief of the accused should be reasonable in the circumstances in which the accused was placed. So understood, the first and second stage requirements of reasonableness under the Viro formulation are properly to be seen as the complementary components of an overall requirement that the accused reasonably believed that he was acting in self-defence in the sense of using appropriate force against an unlawful attack of the relevant kind. The question remains whether it is necessary that the first and second stage requirements of reasonableness should be kept separate.

1. (1958) 100 C.L.R. 448. 2. (1958) 100 C.L.R., at p. 460. 3. (1958) 100 C.L.R., at pp. 460-461.

As has been mentioned, the effect of the Viro formulation is that a failure to satisfy the first stage test of reasonableness means that the defence fails completely in that, even if all other elements of it were present, it cannot avail to reduce the offence from murder to manslaughter. In that context, the clear distinction which the formulation draws between the first and second stage tests reflects the majority decision on the central question in that case. That question was whether, in a case of homicide where self-defence fails only because the second stage requirement of reasonableness is not satisfied, that is to say, where the accused genuinely believed that there was proportionality between the force used and the danger which he faced but that belief was not a reasonable one, the effect of the presence of the other elements of the defence is to reduce the offence from murder to manslaughter. The answer given by the majority to that question was in the affirmative. That answer was soundly based on commonly accepted notions of justice.

The defence of self-defence is embedded deeply in ordinary standards of what is fair and just. It sounds as readily in the voice of the schoolchild who protests that he or she was only defending himself or herself from the attack of another child as it does in that of the sovereign state which claims that it was but protecting its citizens or its territory against the aggression of another state. As a matter of those ordinary standards, the defence does not extend to excuse action which goes too far in the sense that it is excessive or disproportionate to the situation of actual or threatened attack. Even in such a case however, the fact that what was done was done genuinely in self-defence differentiates the culpability involved from the case where what was done was done wantonly and without any such extenuation. The same can be said of the analogous, and perhaps a fortiori, case where what was done was done genuinely, but excessively, in defence of another. In this country, at least since Reg. v. Howe, it has been accepted that the common law relating to homicide has reflected this ordinary perception of what is fair and just. As Dixon C.J. observed in Howe [57] , it seems "reasonable in principle to regard such a homicide as reduced to manslaughter". More than twelve years after Howe, the decision of the Privy Council on an appeal from Jamaica in Palmer v. The Queen [58] was seen, in the context of times that are gone, as requiring a reconsideration of the question by this Court. Such a reconsideration was undertaken by the whole Court in Viro. The result of it was that the decision and reasoning in Howe were affirmed. In unambiguous terms, a majority of the Court accepted that the preferable view was that, where self-defence failed as a complete defence in a case of homicide only by reason of the use of excessive force, the law of this country accorded with ordinary standards of culpability and adjudged the accused to be guilty of manslaughter, not murder: see Viro [59] per Stephen J., [60] per Mason J., [61] per Jacobs J. and [62] per Aickin J. The rationale, as a matter of legal principle, of that view which was accepted by those four members of the Court corresponded with that which had been advanced by the members of the Supreme Court of South Australia in Howe [63] and accepted by Dixon C.J. in that case, namely, that, notwithstanding the existence of an intent to kill or inflict grievous bodily harm, the fact that a man genuinely believed that he was doing only what he was entitled (or morally obliged) to do and acting in reasonable defence of himself (or another) "would deprive the act of the requisite" element of "malice aforethought" which distinguishes murder from manslaughter: see per Jacobs J. in Viro [64] .

1. (1958) 100 C.L.R., at p. 461. 2. [1971] A.C. 814. 3. (1978) 141 C.L.R., at pp. 132-133. 4. (1978) 141 C.L.R., at p. 139. 5. (1978) 141 C.L.R., at p. 153. 6. (1978) 141 C.L.R., at p. 180. 7. [1958] S.A.S.R. 95, at p. 122. 8. (1978) 141 C.L.R., at p. 153.

It was not submitted on behalf of the Crown or the appellant that the Court should overrule Viro on the precise point which it decided and hold that in a case of homicide where self-defence failed only because the accused's belief of proportionality was not a reasonable one, the proper verdict was murder. That question is, however, addressed in the judgments of other members of the Court and it is necessary that I advert to it. With due respect to those who see the matter differently, it appears to me that considerations of authority, principle and justice combine to require the conclusion that the decision in Viro on the point should be left undisturbed. Considerations of authority, in that Viro was a considered decision of a majority of the whole Court confirming a previous considered decision of a majority of the Court on the same point. Considerations of underlying principle, in that it was, in my view correctly, recognized in both Howe and Viro that even the existence of an intention to kill or inflict grievous bodily harm will not constitute the requisite mens rea for murder if what was done was essentially defensive in its character in the sense that the accused genuinely believed that he was doing no more than was reasonably necessary to defend himself or another person against an unjustified attack: see The People (Attorney-General) v. Dwyer [65] ; O'Brien, Excessive Self-defence: A Need for Legislation, Criminal Law Quarterly, vol. 25 (1983) 441, at pp. 449-455 . It is, however, considerations of justice which compel a refusal to overrule the decisions in Howe and Viro. Those considerations of justice operate at two levels.

The first level at which considerations of justice militate against overruling the decisions in Howe and Viro is that to which reference has already been made. As has been said, the decision of the Court in those cases reflected, and was expressly based upon, the ordinary perception of what is fair and just, namely, that "the moral culpability of a person who kills another in defending himself [or another person] but who fails in a plea of self-defence [or defence of another] only because [of excessive force] falls short of the moral culpability ordinarily associated with murder": see per Mason J., Viro [66] . At the second level, the considerations of justice involved are not abstract ones. They relate to what is just and proper in the administration of the criminal law. It is to a consideration of them that I now turn. In the absence of any contrary suggestion in argument, I approach that consideration on the long-accepted basis that any overruling of Howe and Viro would not be merely prospective.

There may be circumstances in which an ultimate appellate court is justified in overruling a previous decision of its own with the consequence that what had previously been accepted as a defence to a charge of murder is no longer, and never was, such a defence: cf., in the context of a lesser offence, Reg. v. Shivpuri [67] . Be that as it may however, such circumstances do not exist in the present case. The previous decision (Viro) was not an unconsidered or isolated one. It was given after a lengthy period of consideration and affirmed an earlier considered decision of the Court (Howe) on the very point. There is no general public perception that the previous decision on the point was mistaken: see, e.g., Smith, Excessive Defence - A Rejection of Australian Initiative?, [1972] Criminal Law Review, 524 at pp. 533-534 ; Glanville Williams, Textbook of Criminal Law, 2nd ed. (1983), pp. 546-547; Criminal Law Revision Committee, 14th Report Offences against the Person (1980), par. 288; Law Reform Commission of Canada, Working Paper 33 Homicide (1984), pp. 70-71; but cf. Brisson v. The Queen [68] . Indeed, neither party has suggested, let alone argued, that the decisions in Howe and Viro on that point should be overruled. In these circumstances, to overrule Viro and Howe would be to retrospectively abolish a defence which, if one goes back no further than Viro, had been available under the common law of this country, as unambiguously settled by this Court, for the past nine years.

1. [1987] A.C. 1. 2. (1982) 139 D.L.R. (3d) 685, at pp. 703-706.

The vice of such a retrospective abolition of a defence to a charge of murder lies not in the prospect of injustice to some imaginary killer who has killed on the basis that his crime will be reduced from murder to manslaughter in the event that he was found to have been acting excessively in self-defence. It lies in the fundamental injustice of inequality under the law which is unavoidable when the administration of the criminal law is reduced to a macabre lottery by what the late Professor Stone described as flagrant violation of the "well-established judicial policies of the criminal law in favorem libertatis, and against ex post facto punishment":Precedent and Law (1985), p. 190. It is simply wrong that an accused may be adjudged not guilty or guilty of murder according to the chance of whether his trial is completed before or after this Court has abolished a defence which, under the law which the Court itself had definitively settled (see per Gibbs J. in Viro [69] ) at the time the offence was committed, reduced the offence from murder to manslaughter. An obvious consequence of a decision of this Court overruling Viro and Howe would be to deprive all those accused whose trials have been delayed by inefficiencies in the administration of criminal justice of a defence which would have been available to them if their trials had not been unduly delayed. The possible consequences would also include: that some accused awaiting trial were faced by confessional statements which were made on the basis of correct professional advice about the then state of the law and which would not have been made if it had been known that the law was not as this Court had authoritatively stated it to be; that other accused were deprived of the defence upon which the whole of the preparation of their trial had been largely based; that some accused were even deprived of their main defence to a charge of murder midway in the course of their actual trial. It would also seem unavoidable that, in the lottery which an overruling of Viro would create, some accused would be deprived of a defence which would reduce their offence from murder to manslaughter by reason of the fact that, through no fault of their own, a first trial had miscarried or resulted in disagreement. Indeed, the present case would provide an example of such a case if, on a retrial, the applicant were convicted of murder by reason of the fact that this Court had retrospectively changed the law between his first and second trials.

It is no answer to the foregoing to say that, if excessive self-defence (or defence of another) is abolished as a defence which may reduce murder to manslaughter, a person who has acted genuinely but unreasonably in such defence may be acquitted of murder on the ground of provocation. There may, no doubt, be cases in which a defence of provocation is available to a person who has acted excessively in self-defence. The two defences are however quite distinct. Excessive self-defence may well be available in circumstances where there is no basis at all for a defence of provocation. Indeed, in some circumstances there may be an element of inconsistency between a genuine (albeit unreasonable) belief that what was done was done reasonably in self-defence (or defence of another) and the loss of control which ordinarily lies at the heart of a defence of provocation. Nor is it any answer to the foregoing to say that a jury, encouraged by sympathetic directions by a trial judge on the question of reasonableness, is unlikely to disregard commonly accepted notions of justice and completely acquit any accused who has acted genuinely in self-defence if excessive self-defence is not available as a defence which reduces murder to manslaughter. It is an indictment, rather than a vindication, of a proposition of criminal law to say that its harshness is such that it will be avoided by a perception, on the part of judge or jury, that the avoidance of injustice to an accused requires that what was unreasonable should be rationalized as reasonable so that, given the choice between murder and complete acquittal in a case where the only remaining defence was self-defence, a person who had intentionally killed in unreasonable or excessive defence of himself or another can be found not guilty of any crime at all.

What then are the considerations which weigh in favour of an overruling of Howe and Viro at this stage? There is none which seems to me to be legitimate. True it is that there are some decisions in other common law jurisdictions which are inconsistent with the decisions in Howe and Viro that excessive self-defence in a homicide case is effective to reduce the offence from murder to manslaughter. The most important of those cases (excluding those involving the provisions of a Criminal Code) remains the decision of the Privy Council in Palmer. The Privy Council's decision was, however, carefully considered by the whole Court and rejected by a clear majority in Viro. It is also true that there are strong arguments to the effect that, both as a matter of history and as a matter of principle, the approach adopted in Palmer or in the dissenting judgment of Barwick C.J. in Viro is to be preferred to that accepted by the majority in the last-mentioned case. Those arguments must encounter the analysis of earlier cases which is to be found in the judgment of the Supreme Court of South Australia in Howe and in the judgments of the majority in Viro : (and see, as to the difficulties of principle involved in the subsequent application of Palmer, Glanville Williams, op. cit., p. 507. They must also encounter modern notions of the content of malice aforethought in the crime of murder and the greater relevance in present jurisprudence of notions of abstract justice. The compelling answer to those arguments for present purposes is, however, that they were understood, considered and rejected by the Court in Howe and in Viro. There remains the consideration that to abolish excessive self-defence as a defence to murder would make the functions of a trial judge (in summing up) and a jury (in reaching a verdict) somewhat easier. That consideration seems to me to be of no validity whatever when what is involved is a question whether this Court should overrule a previous decision of its own with the practical effect that an established defence to murder should be retrospectively abolished. Indeed, there are few things that would be more likely to undermine the institution of trial by jury than for this Court to adopt the approach that a decision having that practical effect was made necessary by a need to make the task of a jury easier.

With the benefit of hindsight, it seems to me that the Viro formulation of the task of a jury in a homicide case where self-defence is raised is open to legitimate criticism on two distinct grounds. The first is that it appears to me that the formulation fails adequately to distinguish between factual considerations and legal principle. The result is unduly to complicate legal principle. This complication of legal principle is heightened by the synthesis of the constituents of a defence of self-defence and the operation of the onus of proof in relation to such a defence. The result of the abovementioned synthesis is an unavoidable use of negatives and one double negative which makes overall comprehension somewhat difficult even for a lawyer.

The second criticism is that the Viro formulation contains what is for me a basic and complicating conceptual anomaly. That anomaly lies in the different consequences of an absence of the relevant element of reasonableness in the first and second stage requirements. Accepting, as Viro established, that an objective element of reasonableness is a requirement of the common law defence of self-defence as a complete answer in a case of homicide, one would expect the requirement to apply indifferently to the other elements of the defence, that is to say, one would expect the complete defence to be that the accused reasonably believed that he was acting in reasonable self-defence in the relevant sense. If the defence failed as a complete defence only by reason of the absence of the element of reasonableness of the accused's belief, there is no real basis in principle or justice for the drawing of general distinctions in terms of moral culpability or subjective malice according to whether the reason for the failure was that the accused's perception of an occasion of self-defence was unreasonable or that his belief that the amount of force used was reasonably proportionate to the danger was unreasonable. In either event, the position disclosed by the failure of the defence as a complete defence would be that the accused genuinely, though unreasonably, believed that he was acting in reasonable self-defence. Regardless of whether one sees the basis of the decision in Viro that excessive self-defence reduces homicide from murder to manslaughter as lying in ordinary standards of moral culpability or in modern notions of the content of malice aforethought in the crime of murder, it is anomalous that the offence should not also be reduced to manslaughter in a case where the element of objective reasonableness in the accused's belief that he was acting in self-defence is absent because the accused's genuine perception of an occasion of self-defence was unreasonable. The majority of the Court in Viro did not address itself to that question. In my view, the actual reasoning in the majority judgments in Viro supports the conclusion that the proper verdict in a case of homicide where self-defence fails as a complete defence by reason only of the fact that the accused's genuine belief that he was acting in reasonable self-defence was not reasonably held is manslaughter regardless of whether the absence of the element of reasonableness is caused by the unreasonableness of the perception of an occasion of self-defence or the unreasonableness of the belief that the force used was not excessive. If that view be accepted, as I think it should be, much of the difficulty of the Viro formulation disappears in that there is no longer any need to distinguish between the first and second stage requirements of reasonableness.

If the views expressed above were to be accepted, the result would be that the inherent difficulties in the Viro formulation would no longer complicate the task of the trial judge and jury on a murder trial involving an issue of self-defence. The criminal onus of disproof which rests on the Crown in relation to self-defence would, of course, need to be carefully explained. Otherwise, the jury could be instructed to the effect that self-defence constitutes a complete defence if, when the accused killed the deceased, he was acting in reasonable self-defence and that he had been so acting if he had reasonably believed that what he was doing was reasonable and necessary in his own defence against an unjustified attack which threatened him with death or serious bodily harm. Those elements of the defence would, of course, need to be adjusted according to the circumstances of particular cases. Thus, the concept of serious bodily harm should, in an appropriate case, be expanded to include serious bodily abuse by way of, e.g., sexual abuse or prolonged incarceration. Again, in an appropriate case, the direction would need to be adjusted to the case where what was involved was a defence not of self but of another or where the unjustified attack was threatened rather than actual. The members of the jury could thereafter be told that, even though they were satisfied that the belief of the accused was not reasonable, it sufficed to reduce what would otherwise be murder to manslaughter if, when the accused killed the deceased, he believed what he was doing was reasonable and necessary in his own defence against an unjustified attack of the relevant kind. I would stress that the above would constitute no more than guidance in the formulation of such directions as may be appropriate to the facts and circumstances of particular cases.

The problems involved in the requirement, as an element of self-defence, that the accused believed that the attack against which he was defending himself was "unlawful" have been highlighted by McGarvie and Ormiston JJ. in the course of their helpful judgments in Reg. v. Lawson and Forsythe [70] . For reasons given by Brennan J. in his judgment in the present case however, I do not accept the view that that requirement should be completely done away with. On the other hand, to require as an element of self-defence a belief by the accused that the attack was "unlawful" raises formidable and unnecessary problems of meaning and commonsense. If, in such a requirement, "unlawful" is used as meaning neither justified nor susceptible of defence as a matter of legal technicality, the requirement is framed in terms which are inappropriate to be applied by a lay jury to the thought processes of an ordinary accused. Moreover, if "unlawful" is used in that sense, the requirement would border on the absurd in that it would effectively exclude self-defence as a defence in a case where an innocent victim had defended himself from a life-threatening attack made by an assailant who obviously was insane or who obviously believed on reasonable but mistaken grounds that he was threatened with a grievous attack. These problems seem to me to be largely, if not completely, eliminated if the relevant requirement is framed not in terms of legal technicality but in terms of factual justification. It is for that reason that I have used the word "unjustified" rather than the word "unlawful" which was accepted in the Viro formulation.

There remains for consideration the question of the outcome of the appeal in the present case. The circumstances were, in my view, such as to raise an issue of self-defence which the appellant was entitled to have left to the jury. Indeed, self-defence was obviously the real issue between the Crown and the appellant on the trial. It is true that the Crown's case was a very strong one and that, from this distance, the appellant's case is remarkably free of persuasive impact. None the less, a view of the appellant's case which was open to the jury was that, having been stabbed by the deceased and after he had entered his own flat, he had been threatened with death by the deceased ("I blow your head off") and believed that the deceased was in the process of returning to the attack with a gun. Understandable though the trial judge's view about the genuineness of the defence may have been, self-defence was clearly raised as an issue and his Honour was not entitled to substitute his own decision upon it for that of the jury.

In my opinion the appeal should be allowed, and a new trial ordered.

The relevant facts are set out in the judgment of Wilson, Dawson and Toohey JJ. I agree with their conclusion that the issue of self-defence was squarely raised and should have been left to the jury. In my opinion that defence was raised consonant with the principles of law formulated by Mason J., as he then was, and adopted by a majority of this Court in Viro v. The Queen [71] . Thus, in my view, it is not necessary for this Court to review the decision in that case, notwithstanding the criticism directed to it in argument.

However, I agree that it is desirable for this Court to reconsider Viro. Whilst in my view, the decision in Viro remains correct, the principles as therein formulated, by their specificity, tend to detract attention from the basic question which falls for answer when self-defence is raised as an issue in answer to homicide. I agree with Wilson, Dawson and Toohey JJ. in their formulation of that question as whether the accused believed on reasonable grounds that it was necessary in self-defence to do what he or she did. I agree, for the reasons stated by their Honours, that an objective element of reasonableness is necessary before self-defence operates as a complete defence to a charge of murder.

However, I cannot agree that the above formulation either necessarily excludes, or should exclude, the return of a verdict of manslaughter in cases where self-defence fails by reason only that the accused used more force than he or she believed on reasonable grounds to be necessary.

It is not, in my view, excluded by the consideration that a plea of self-defence to murder presupposes (at least at the time of the jury's consideration) an intention to kill or do grievous bodily harm, and that ordinarily a person will not believe on reasonable grounds that it is necessary to kill or do grievous bodily harm unless confronted by a threat which causes a reasonable apprehension on the part of that person of death or serious bodily harm. I should add in this context, that I would consider a threat of sexual violation, in circumstances in which reasonable apprehension stops short of death or serious bodily harm, capable of sustaining a reasonable belief in the necessity to inflict grievous bodily harm.

Threats, such as that of indecent or insulting usage, give rise to a situation entitling a person to resort to force to resist such threats, as was acknowledged by Dixon C.J. in Reg. v. Howe [72] . It is precisely because some threats entitle resort to force by way of resistance, notwithstanding that they may not cause apprehension of death or grievous bodily harm, that it is necessary to consider whether the use of disproportionate force resulting in death should, notwithstanding that the use of force is otherwise justified, render an accused person guilty of murder, or the lesser crime of manslaughter.

In considering that question it is pertinent to bear in mind that it is almost 30 years since this Court decided in Howe that an accused person who kills another in circumstances such that the plea of self-defence fails by reason only that the force used was greater than the accused reasonably believed necessary, is guilty of manslaughter, not murder. It was confirmed by majority in Viro. Despite the criticisms made of Howe and Viro it is, I think, also proper to acknowledge, as did Stephen J. in Viro [73] , that the view expressed in Howe "was at the time no novelty in the law".

Moreover, there seems to me to be, as Aickin J. opined in Viro [74] "a real distinction in the degree of culpability of an accused who has killed having formed the requisite intention without any mitigating circumstance, and an accused who, in response to a real or a reasonably apprehended attack, strikes a blow in order to defend himself, but uses force beyond that required by the occasion and thereby kills the attacker".

That distinction is one which in my view is founded upon the recognition, given expression by Taylor J. in Howe [75] that "action in self-defence is instinctive and does not wait upon a precise appreciation of the exigencies of the occasion or upon the formation of a belief concerning the precise measures which are necessary".

The above considerations militate strongly in favour of the view that where a defence of self-defence in relation to homicide fails by reason only that disproportionate force is used, the verdict should be manslaughter. More importantly, whatever may have been the position before Viro, that decision declared the common law of this country. This Court cannot now proceed as though it were not the law, and cannot abrogate the common law there declared. If the general common law has otherwise changed, so that a verdict of manslaughter in the postulated circumstances is inconsistent with the common law as it has developed, then the Court must so declare. But, in my view it has not. The proposition that it is manslaughter, not murder, where self-defence in relation to homicide fails by reason only that disproportionate force is used, is consonant with the formulation of the law of self-defence as contained in the judgment of Wilson, Dawson and Toohey JJ., and with the definitional difference between murder and voluntary manslaughter involving the presence or absence of malice aforethought.

Notwithstanding that "the law of murder no longer places emphasis on malice aforethought" (Van Den Hoek v. The Queen [76] , per Mason J.) the absence of malice aforethought still serves as a point of distinction between murder and voluntary manslaughter (see Stephen, Digest of the Criminal Law, 9th ed. (1950), p. 221), although it is now common to express this distinction by reference to the particular issue, e.g., provocation, said to have the consequence of reducing murder to manslaughter: see, e.g., Archbold, Pleading, Evidence and Practice in Criminal Cases, 42nd ed. (1985), p. 1629. Indeed, in Woolmington v. The Director of Public Prosecutions [77] , it was the necessity of the Crown to prove malice in a charge of murder which served as the rationale for the requirement that where the charge is murder the prosecution must establish beyond reasonable doubt that the act causing death was unprovoked.

1. (1986) 161 C.L.R. 158, at p. 168. 2. [1935] A.C. 462.

The relevance of malice aforethought, or the absence thereof, to self-defence, and its consequence that manslaughter is the appropriate verdict where self-defence in relation to homicide fails only by reason of the use of disproportionate force was explained in a statement by Mason J. in Viro [78] which Stephen J. [79] accepted as correct:

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 [80] , 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 [81] ; Lee Chun-Chuen v. The Queen [82] ). 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. 1. (1978) 141 C.L.R., at pp. 145-146. 2. (1978) 141 C.L.R., at p. 134. 3. [1946] A.C. 588, at p. 598. 4. [1953] A.C. 200, at p. 206. 5. [1963] A.C. 220, at p. 228.

In my opinion that statement remains correct, and it ought now be recognized, as it was in Howe [83] by Taylor J. that:

Even if it were not abundantly clear at a much earlier stage it is undeniable since Woolmington v. Director of Public Prosecutions, that upon a charge of murder, it is for the Crown, whatever the circumstances of the killing, to establish beyond reasonable doubt the existence of the requisite malice on the part of the accused. This of course may be done by proof of a deliberate killing unaccompanied by any mitigating or alleviating circumstances. But mitigating or alleviating factors may be found in provocation or in other circumstances which tend to show that the killing was not wilful or that the accused had acted in defence of his life liberty or property. This must, I think, be taken to be the reason underlying the rule followed in the almost countless cases concerned with homicide by accused persons in the course of resisting an unlawful arrest or an unlawful invasion of proprietary rights or in the course of violently resisting assaults attended with circumstances of great personal indignity. It seems that in cases which fall into the last-mentioned categories the attendant circumstances may, as in clear cases of sufficient provocation, be taken as sufficient to prevent the implication that the killing was malicious in the sense in which that term has come to be understood in relation to the crime of murder: Woolmington's Case [84] ; see also Mancini v. Director of Public Prosecutions [85] ; Holmes v. Director of Public Prosecutions and Chan Kau v. The Queen [86] . For my own part I can see no real distinction between cases of the character just mentioned and cases where the unlawful killing has taken place upon an occasion of and for the purposes of self-defence . Later [87] his Honour stated: The many cases to which we have been referred satisfy me that the test to be applied by a jury in cases where self-defence as justification is rejected rests upon a broader basis than the accused's honest, though unreasonable, belief. 1. (1958) 100 C.L.R., at p. 467. 2. [1935] A.C., at p. 482. 3. [1942] A.C. 1. 4. [1955] A.C. 206. 5. (1958) 100 C.L.R., at p. 468.

I agree that the availability of a verdict of manslaughter where self-defence is raised in answer to homicide, rests on a broader base than the accused's honest, though unreasonable, belief. But, in my view, it is sufficient and appropriate for the test to be formulated by reference to that belief. The legal basis for the availability of a verdict of manslaughter is that an intention to kill or cause grievous bodily harm, formed on an occasion of self-defence, lacks malice aforethought.

What is an occasion of self-defence? It is, I think, an occasion which is constituted by belief on reasonable grounds of attack or threat of attack justifying the use of force. That consideration is embraced in the basic question in self-defence, viz., whether the accused believed on reasonable grounds that his or her actions were necessary in self-defence. But the basic question includes the further consideration, whether the accused also believed on reasonable grounds that the force used was necessary to avert the attack or threat of attack. It is this latter belief which translates, in factual analysis, to the question of disproportionate force. It is that belief, which if genuine, although unreasonable, serves to render an accused guilty of manslaughter and not murder.

Although it is factually accurate to speak of disproportionate force, as the criterion by reference to which a person may be guilty of manslaughter rather than murder, there is, I think, a danger in giving expression to the relevant issue in those terms. So expressed, it tends to elevate the question of disproportionate force to a status transcending its factual significance as a matter for jury consideration. I think too, the isolation of the issue to disproportionate force, led to unnecessary complexity in the formulation of the jury's task as it is expressed in Viro. For these reasons also, I think it desirable that the relevant consideration be expressed by reference to the belief of the accused.

In my opinion, it is and remains the law, that on a charge of murder, an accused, although not entitled to the full benefit of self-defence, is guilty of manslaughter, not murder, if he or she believed on reasonable grounds that it was necessary to resort to force in self-defence, and otherwise believed, although unreasonably, that his or her acts were necessary in self-defence. So stated, the issue remains throughout as one of self-defence; the issue of disproportionate force is but an aspect of the surrounding circumstances by reference to which the jury will determine whether the accused, in fact, had any relevant belief, and if so, whether the belief was reasonable.

It is neither necessary nor desirable to set forth a formula for the instruction of juries as to the distinction between murder and manslaughter when self-defence is an issue. Provided the matters of onus and standard of proof are properly explained it is sufficient that a jury be instructed in the context of the relevant facts, that a person, although not entitled to the full benefit of self-defence, is guilty of manslaughter and not murder, if he or she believed on reasonable grounds, that it was necessary to resort to force in self-defence, and otherwise believed, although unreasonably, that his or her actions were necessary in self-defence.