Section s 272 - Self-Defence against provoked assault, when death ...

Section s 272 - Self-Defence against provoked assault, when
death or grievous bodily harm occurs
I must now tell you the law concerning self-defence. If the prosecution
cannot, to your satisfaction beyond reasonable doubt exclude the
possibility that [the killing] occurred in self-defence as the law defines it,
that is the end of the case. The defendant’s use of force would be lawful
and you should find him not guilty. 1
The criminal law does not only punish; it protects as well. It does not
expect citizens to be unnaturally passive especially when their safety is
threatened by someone else. Sometimes an attacker may come off second
best but it does not follow that the one who wins the struggle has
committed a crime. The law does not punish someone for reasonably
defending himself or herself, as I will shortly explain when I read a section
from our Code. You should appreciate that the law is drawn in fairly
general terms to cover any situation that may arise. Each jury has to apply
it to a particular situation according to the facts of the particular case. No
two cases are exactly alike, so the results depend heavily on the
commonsense and community perceptions that juries bring into court.
You will not be surprised to know that if the violence of the attacker is
such that the person defending [himself] reasonably fears for his life or
safety then the violence that might be justified will be great[er] also. The
level of justifiable self-defence depends very much on the level of danger
created by the attacker and the reasonableness of the defendant's
reaction.
There is a section of the Criminal Code which in certain circumstances
justifies a person in using very serious or even deadly force. That may
apply where the defendant had good reason to believe he is in serious
1
The following cases may be of assistance: Bojovic [2000] 2 Qd R 183; Gray (1998) 98 A Crim R
589; Prow [1990] 1 Qd R 64; Muratovic [1967] Qd R 15; Marwey (1977) 138 CLR 630; Zecevic
v DPP (1987) 162 CLR 645 (re requirements in a common law summing-up).
Benchbook – Self Defence
1
No 86B.1

danger of losing his own life or suffering very serious injury, even though
he himself provoked the assault.
Generally speaking this defence applies where the defendant has started a fight
and been threatened by an overt reaction, or at least by such violence as to
cause reasonable apprehension of death or grievous bodily harm.
Section 272 of our Criminal Code reads:
1. “When a person has unlawfully assaulted another or has
provoked an assault from another, and that other assaults the
person with such violence as to cause reasonable apprehension
of death or grievous bodily harm, and to induce the person to
believe, on reasonable grounds, that it is necessary for the
person’s preservation from death or grievous bodily harm to use
force of self-defence, the person is not criminally responsible for
using any such force as is reasonably necessary for such
preservation, although such force may cause death or grievous
bodily harm.
2. This protection does not extend to a case in which the person
using force which causes death or grievous bodily harm first
began the assault with intent to kill or to do grievous bodily harm
to some person; not 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.”
Matters for consideration are:
Benchbook – Self Defence
• Whether the defendant had unlawfully assaulted the
[deceased/complainant] or had provoked an assault from the
[deceased/complainant];
2
No 86B.2

• Did the defendant have a reasonable apprehension of death or
grievous bodily harm?
• Did the defendant believe, on reasonable grounds, that it was
necessary in order to preserve himself from death or grievous
bodily harm to use force in self-defence?
• Was the force used by the defendant such as was reasonably
necessary to preserve him from death or grievous bodily harm?
If the prosecution exclude any one of those four matters beyond
reasonable doubt, then that excludes that possible defence.
Additionally, that defence does not apply where:
• The defendant first began the assault with intent to kill or to
do grievous bodily harm to the [deceased/complainant/some
person];
• Nor where the defendant endeavoured to kill or to do grievous
bodily harm to the [deceased/complainant/some person] before
the necessity of so preserving himself arose;
• Nor, in either case, unless, before such necessity of so
preserving himself arose, the defendant and declined further
conflict and quitted it or retreated from it as far as was
practicable.
So, if the prosecution satisfy you beyond reasonable doubt that:
Benchbook – Self Defence
1. The assault by the other person was not of such
violence as to cause reasonable apprehension of death
or grievous bodily harm; or
2. That the assault did not induce the defendant to
believe, on reasonable grounds, that it was necessary
for his own preservation from death or grievous bodily
harm to use the force used in self-defence; or
3
No 86B.3

3. That the force used was more than was reasonably
necessary to save the defendant from death or
grievous bodily harm; or
4. That the defendant [or person using the force which
caused the death or grievous bodily harm] first began the
initial assault with intent to kill or to do grievous bodily
harm to some person; or
5. The defendant [or person using the force which caused
death or grievous bodily harm] endeavoured to kill or do
grievous bodily harm to some person before the
necessity of so preserving himself arose; or that
6. In either case, unless, before such a necessity for selfdefence
arose, the defendant [or person using such
force] declined further conflict, and quitted it, or
retreated from it as far as practicable 2 ;
then the defence is excluded.
Remember it is for the prosecution to satisfy you beyond reasonable
doubt that self-defence does not apply. There is no burden on the
defendant to satisfy you that he was acting in self-defence, or to establish
any one of the six things I have described to you. The prosecution is
obliged to exclude any one of those, if it can, beyond reasonable doubt.
2 On the question of retreat contrast Muratovic [1967] Qd R 15 with Johnson [1964] Qd R 1,
14.
Benchbook – Self Defence
4
No 86B.4