Page:Dayney v The King.pdf/10

Gageler CJ Gordon J Gleeson J Jagot J Beech-Jones J

structure, reading "nor" as encompassing the opening phrase of s 272(2) – "[t]his protection does not extend" – can, and should, be adopted.

23 The next phrase, "in either case," is to be read literally, and in context, as referring to the alternative cases addressed in both of the first two clauses of s 272(2), namely a case in which the accused uses force which causes death or a case in which the accused uses force which causes grievous bodily harm.

24 The next limb of the third clause is the phrase "before such necessity arose". As noted above, consistent with the two preceding clauses, necessity here refers to the use of such force as is "necessary for the person' s preservation from death or grievous bodily harm", even though that force may itself cause death or grievous bodily harm. Put another way, it is a reference to using such force as is reasonably necessary for the purposes of self-defence.

25 Finally, the phrase "unless … the person using such force declined further conflict, and quitted it or retreated from it as far as was practicable" identifies what the accused must do before obtaining the protection from criminal responsibility. The phrase "the person using such force" is a reference back to "the person" and the words "using force" in both the first and second cases described in s 272(2). In other words, it refers to an accused who uses force which causes death or grievous bodily harm.

26 On that construction, the third clause of s 272(2) can be restated in the form of a sentence:

"This protection in s 272(1) does not extend:


 * to a case in which the person uses force which causes death; or
 * to a case in which the person uses force which causes grievous bodily harm,

unless, before the necessity of the person's preservation from death or grievous bodily harm arose, the person using such force declined further conflict, and quitted it or retreated from it as far as was practicable."

27 On this construction, an accused who has instigated conflict – by assault or provocation – and who causes death or grievous bodily harm cannot avail themselves of the protection in s 272(1) unless, before the necessity of resorting to such force arose, they first, as far as was practicable, sought to neutralise the threat they themselves created. The requirement to decline further conflict and quit or retreat is thus one of de-escalation, as far as is practicable. An accused who creates