Page:Dayney v The King.pdf/11

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

conflict through a provocative act, and then responds with force that causes death or grievous bodily harm, cannot plead self-defence without demonstrating that, as far as was practicable, they first attempted to de-escalate and undo their part in the conflict before resorting to such force. That construction is consistent with the principle of necessity that governs the defence in s 272(1) and the exclusions in the first two clauses of s 272(2).

28 So understood, the third clause in s 272(2) focuses on the accused who instigated the conflict and requires that they interrupt or remove, as far as is practicable, their role in inciting the conflict and thereby their blameworthiness, before the necessity to engage in force which causes death or grievous bodily harm can be relied upon as a defence. Thus, where the accused could have attempted, but did not attempt, to quit the conflict or retreat from it before the necessity of resorting to force in self-defence arose, then their conduct which results in grave consequences cannot be excused, as the conflict was instigated and continued by them.

29 Put another way, if the accused has engaged in force which has provoked the other person to retaliate with equal force, the accused should not get the benefit of self-defence without first retreating. The relevance of retreat, in this context, is that it eliminates the accused's provocation of the other person to engage in such force. In the event that the other person nevertheless proceeds to engage in force so as to cause a reasonable apprehension of death or grievous bodily harm – that is, they re-introduce conflict – they become the primary aggressor, thereby entitling the accused to resort to such force as is necessary to protect themselves against such escalatory action.

30 As is clear, the retreat requirement is confined in two ways. It applies only to the extent that a retreat is practicable. On no view does the third clause necessarily require an accused to retreat in the face of a disproportionate lethal response. Further, consistent with the first two clauses in s 272(2), the clause operates only to limit the availability of the protection in s 272(1) in the most extreme of cases, where the accused s use of force occasions death or grievous bodily harm. However, unlike the first two clauses, the third clause is not concerned with whether an accused had or acquired an intention to kill or cause grievous bodily harm. Instead, it operates to deny the protection in s 272(1) in all cases where the accused uses force which causes death or grievous bodily harm, unless the accused first retreated from the conflict before engaging in such force.

Conclusion

31 The appeal must be dismissed.