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The appellant appealed against his conviction for murder. This note is concerned with the court’s consideration of the appellant’s contention that the learned trial judge misdirected the jury as to the construction of s 272(2) of the Criminal Code 1899 which operates to exclude self-defence in certain cases. The question for the court was whether the final clause of s 272(2), colloquially referred to as the retreat condition, qualified the protection afforded by s 272 in every case whether it be a case of provoked or unprovoked assault. By majority, (Fraser and McMurdo JJA agreeing, Sofronoff P in dissent on this issue only) the Court held that it did and that “whether the accused retreated has a particular relevance where the accused person was the instigator of the conflict”.
Sofronoff P and Fraser and McMurdo JJA
1 December 2020
The appellant and his partner had planned to steal drugs and money from the deceased’s home. The deceased was the appellant’s former lover. It was the appellant and his partner’s plan that the partner would distract the deceased while the appellant would covertly enter the deceased’s home and steal the items. .
On entering the house, the deceased spotted the appellant. It was the appellant’s evidence that the deceased produced a pistol and that his assault was a response to this action. , . The appellant said his preoccupation was “to make sure that me and [my partner] both got out of there alive”. , . From that point, there was a sustained attack by the appellant and his partner on the deceased. .
The Crown alleged the appellant had launched a “savage and unprovoked attack against an an unarmed man”. . The appellant argued that the deceased produced a gun and that caused a reasonable apprehension in the appellant of death or grievous bodily harm (“GBH”) and caused the appellant to believe, on reasonable grounds, that he could not otherwise preserve himself from death or GBH other than by assaulting the deceased as he did. . The appellant said “he didn’t run away then ‘because he didn’t want to get shot’”. .
The trial judge declined to put s 271 before the jury but gave directions about the application of s 272. On appeal, the appellant contended that the trial judge ought to have directed the jury as to the applicability of s 271 and that the jury was misdirected about s 272(2). . This note is concerned with the Court’s treatment of s 272(2).
Section 272 can, as Fraser and McMurdo JJA explained, “provide a protection from criminal responsibility in a case where the conflict has been initiated either by the accused person’s unlawful assault upon the ultimate victim or by an assault by the victim which was provoked by the accused person. The protection is dependent upon the circumstances being as prescribed in s 272(1) and subject to the exceptions in s 272(2)”. .
Subsection 272(2) provides:
“This protection does not extend to a case in which the person using force which causes death or grievous bodily harm first begun the assault with intent to kill or to do grievous bodily harm to some person; nor to a case in which the person using force which causes death or grievous bodily harm endeavoured to kill or to do grievous bodily harm to some person before the necessity of so preserving himself or herself arose; nor, in either case, unless, before such necessity arose, the person using such force declined further conflict, and quitted it or retreated from it as far as was practicable.” (emphasis added)
Competing constructions of s 272(2)
The issue of construction arises due to the “peculiar” drafting of the provision. . The difficulty in construing this clause arises from the words “in either case”. .
The respondent’s construction of s 272(2) was that the concluding words qualify the operation of s 272(1), and existed in addition to the other exceptions contained in the remainder of s 272(2). It operated as a third exception. Therefore, self-defence “could be excluded by proof that, as far as was practicable, the accused person did not decline further conflict, and quit it or retreat from it, before it became necessary to preserve himself or herself”. .
The appellant contended that these concluding words qualified the effect of the first and second exceptions such that “[i]n a case where the accused person began the assault with an intent to kill or do [GBH], or in a case where he or she endeavoured to kill or do [GBH] before it was necessary to preserve himself or herself, self-defence would still be available, unless the prosecution proved that the accused person did not decline further conflict and quit it or retreat from it, before it was necessary to defend himself or herself”. .
The Court preferred the respondent’s construction for a number of reasons. First, the appellant’s construction “requires this third clause to operate as a means of restoring the protection of self-defence, which, according to one or both of the preceding clauses, was to be denied”. .
Second, the appellant’s construction did not accord with the structure of sub-s (2) which is to deny the protection of self-defence in three sets of circumstances and the structure suggests that there are three exceptions to the protection conferred by sub-s (1). .
Further, Fraser and McMurdo JJA noted that “it is an unremarkable consequence of the provision that a person who has caused death or grievous bodily harm, having begun the assault on the victim with that intent … should not have the protection of self-defence”. .
In contrast, Sofronoff P reached a different view as to the construction of s 272(2), citing the Court of Criminal Appeal of Western Australia in Randle v The Queen (1995) 15 WAR 26, Sofronoff P held that “the effect of the retreat condition was to bring both of the two ‘cases’ referred to in … s 272(2), and which are otherwise excluded from the protection of the first sub-section, back within the defence”. . His Honour concluded that the trial judge erred by instructing the jury that the “retreat condition applied to govern s 272(1)”. –.
In the event, Fraser and McMurdo JJA held that the second ground of appeal complaining of a misdirection of s 272 should be rejected. . Ultimately, however, the appeal was allowed on the basis of the first ground of appeal concerning s 271. , .
A Hughes of Counsel