R v Howe [1958] HCA 38

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he

H, C. oF A. Criminal Law—Murder—Conviction—Quashed on appeal to Supreme Cour

1958. we

Sypyey, July 29-31 ; Aug. 1,15.

Dixon C.5., 'McTiernan, Fullagar, 'Taylor and Menzies JJ.

THE QUEEN solirae P 3 : eng

= HIGH COURT.

[HIGH COURT OF AUSTRALIA.)

AND

trial ordered—Appeal to High Court by Crown—Special leave—Q affecting law of homicide—Importance—Self-defence—Exxcessive use of by defendant—Effect—M urder or manslaughter—M iscarriage of justic

—Direction to jury—Special leave rescinded.

Once a ground is disclosed by the evidence upon which a plea of, may arise, it is essential to a conviction of murder that the jury shall b

fied beyond reasonable doubt that one or other or all of the ultimat which establish that plea are not present.

Chan Kau v. The Queen (1955) A.C. 206, at pp. 211, 212, referred

Where a plea of self-defence to a charge of murder fails only b death of the deceased was occasioned by the use of force going b was necessary in the circumstances for the protection of the accused 0 might reasonably be regarded by him as necessary in the cirem in the absence of clear and definite decision, reasonable in principle such a homicide as reduced to manslaughter.

So held by Dixon C.J., McTiernan, Fullagar, and Menzies JJ.

Per Taylor J.: The test to be applied by a jury in cases where s¢ as justification is rejected rests upon a broader basis than the hor unreasonable, belief of the accused. It is sufficient if it appears that w

an aggressor and the jury should be instructed that unle; reasonable doubt that this was not so a verdict of manslaughter sh returned.

To retreat before employing force is no longer to be treated as an ind ent and imperative condition if a plea of self-defence is to be Whether a retreat could or should have been made is merely an the jury to consider as entering into the reasonableness of the con accused.