Page:Dayney v The King.pdf/5

 GAGELER CJ, GORDON, GLEESON, JAGOT AND BEECH-JONES JJ.

Introduction

1 Section 272 of the Criminal Code (Qld) ("the Code"), headed "Self-defence against provoked assault", affords a defence to all criminal charges involving an assault, spanning common assault to murder. The section provides:

""(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 in 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 begun the assault with intent to kill or to do grievous bodily harm to some person; nor 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.""

2 Section 272(1) affords a protection from criminal responsibility for the use of force in response to a provoked assault and s 272(2) identifies cases to which that protection does not extend.

3 This appeal is concerned with the proper construction of s 272(2). The question is whether, as the Court of Appeal of the Supreme Court of Queensland unanimously held in the decision under appeal in R v Dayney [No 2] following the reasoning of the majority in R v Dayney [No 1], s 272(2) specifies three independent conditions in which the protection given by s 272(1) is not available