Page:Dayney v The King.pdf/8

Gageler CJ Gordon J Gleeson J Jagot J Beech-Jones J 13 The surest guide to the proper construction of s 272(2) lies in a detailed analysis of its text in the context of s 272 as a whole.

14 Turning first to s 272(1), the defence of self-defence against provoked assault in s 272(1) applies where: the accused "unlawfully assaulted", or provoked an assault from, another person; that other person responded with such violence as to induce in the accused a reasonable apprehension of death or grievous bodily harm; and the force used by the accused in retaliation was "reasonably necessary for such preservation [from death or grievous bodily harm], although such force may cause death or grievous bodily harm".

15 The protection provided by s 272(1) will lead to an accused being found not criminally responsible for the infliction of injury, including causing death or grievous bodily harm. The availability of that protection is predicated on the accused demonstrating that their resort to such force was "reasonably necessary" for self-preservation from death or grievous bodily harm. Put another way, the protection is designed to excuse an accused from the use of such force, and the resultant grave consequences, where the need to use such force was reasonably necessary for self-defence.

16 Turning then to s 272(2), textually, sub-s (2) comprises three distinct clauses, each demarcated by semi-colons. As will be seen, each expresses a distinct category of case to which the "protection" from criminal responsibility afforded by s 272(1) does not "extend".

17 The first clause provides that "[t]his protection [being the protection provided in sub-s (1)] 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". This clause is self-explanatory. The protection does not extend to "a case" in which the accused causes death or grievous bodily harm and "first begun" the assault (being the initiating assault described in s 272(1)) with intent to kill or to do grievous bodily harm to some person.

18 The second clause commences with the phrase "nor to a case in which". Textually, that clause can and should be read so that "nor" encompasses the opening phrase of s 272(2) – "[t]his protection does not extend". The second clause then provides, in effect: