R v Corcoran

[2000] QCA 114

SUPREME COURT OF QUEENSLAND

CITATION:

R v Corcoran [2000] QCA 114

PARTIES:

THE QUEEN
v
CORCORAN, Christopher Troy
(appellant)

FILE NO/S:

CA No 359 of 1999
SC No 402 of 1998

DIVISION:

Court of Appeal

PROCEEDING:

Appeal against conviction

ORIGINATING COURT:

Supreme Court at Brisbane

DELIVERED ON:

7 April 2000

DELIVERED AT:

Brisbane

HEARING DATE:

23 March 2000

JUDGES:

Pincus, McPherson and Thomas JJA
Separate reasons for judgment of each member of the Court, each concurring as to the order made.

ORDER:

Appeal against conviction dismissed

CATCHWORDS:

CRIMINAL LAW – CRIMINAL LIABILITY AND CAPACITY – DEFENCE MATTERS – SELF - DEFENCE AND OTHER FORMS OF DEFENCE – GENERALLY – whether both limbs of s 271 of the Criminal Code require an objective assessment – whether accused’s belief about the amount of force necessary to defend against attack was held on reasonable grounds

CRIMINAL LAW – PARTICULAR OFFENCES – OFFENCES AGAINST THE PERSON – HOMICIDE – MURDER – GENERALLY

Criminal Code s 271, s 272

Gray (1998) 98 A Crim R 589, followed

Gray v Smith [1997] 1 Qd R 485, considered

Julian (1998) 100 A Crim R 430, mentioned

R v Vidler [2000] QCA 63; CA No 356 of 1999, 10 March 2000, mentioned

COUNSEL:

Mr A J Rafter for the appellant
Mr D Bullock for the respondent

SOLICITORS:

Legal Aid (Queensland) for the appellant

Director of Public Prosecutions (Queensland) for the respondent

1. PINCUS JA:  I have had the advantage of reading the reasons of McPherson JA and those of Thomas JA.

1. Unsatisfactory aspects of the Code's self-defence provisions were discussed in Gray v Smith [1997] 1 Qd R 485. It should be added to what is said there that s 272 is too complex; it seems to deal primarily with the case in which A assaults B, provoking an assault by B upon A, which in turn provokes a further assault (causing death or grievous bodily harm) by A on B – the last of the three being the subject of the prosecution. Why this special situation should be thought worth a section to itself is not easy to understand. Further, as is pointed out in Gray v Smith at 489 and 490, s 271 and s 272 leave a significant gap in the law, where the person relying on self-defence has provoked the assault upon himself but does not apprehend death or grievous bodily harm. Another oddity is that under s 271(1) the accused who has used the lesser force faces the more stringent test: "such force ... as is reasonably necessary to make effectual defence" rather than the test of belief on reasonable grounds which is applicable to the more serious assaults, under s 271(2).

1. The present case is but another illustration of the difficulty in applying these provisions. Plainly the Code would be improved if s 271 and s 272 were replaced by simpler and clearer provisions, expertly drawn.

1. As is explained in the reasons of McPherson JA and Thomas JA, the judge used expressions…