Zecevic v Director Of Public Prosecutions Vic [1987] HCA 26

High Court of Australia Mason C.J. Wilson, Brennan, Deane, Dawson, Toohey and Gaudron JJ. Zecevic v Director Of Public Prosecutions Vic [1987] HCA 26

ORDER Appeal allowed. Order that the order of the Full Court of the Supreme Court of Victoria be set aside and in lieu thereof order that the appeal to that Court be allowed, set aside the conviction and sentence and order that there be a new trial.

Cur. adv. vult.

The following written judgments were delivered:—

July 1 Mason C.J.

In Viro v. The Queen [1] , this Court followed the law with respect to self-defence as stated in Reg. v. Howe [10] in preference to Palmer v. The Queen [2] . In Viro only three members of the Court (Stephen J., Aickin J. and I) considered that the law had been stated correctly in Howe. Because there was a diversity of opinion among the other members of the Court, Gibbs, Jacobs and Murphy JJ., recognizing the need to give practical guidance to trial courts concluded, contrary to their preferred views, that juries should be instructed in accordance with the law as stated in Howe. Since then, when the issue of self-defence has arisen for decision in trials for murder, trial judges have directed juries in terms of, or in accordance with, the six propositions which I formulated, with the concurrence of Stephen and Aickin JJ., at the end of my judgment in Viro [3] .

1. (1978) 141 C.L.R. 88. 2. (1958) 100 C.L.R. 448. 3. [1971] A.C. 814. 4. (1978) 141 C.L.R., at pp. 146-147.

The propositions were expressed in this form:

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.