THE QUEEN HOWE Criminal LLaw-Murder-Conviction-Quashed on appeal to Supreme Court-New
trial ordered-Appeal to High Court by Crown-Special have-Questions of law affecting law of homicide-Importance-Self-defence-Excessive use of violence SYDNEY,
by defendant-Effect-Murder or manslaughter-Miscarriage of justice-Absence 101 July 29-31;
-Direction to jury-Special leave rescinded. Aug. 1, 15.
Once a ground is disclosed by the evidence upon which a plea of self-defence Dixon C.J.,
may arise, it is essential to a conviction of murder that the jury shall be satis. fied beyond reasonable doubt that one or other or all of the ultimate facts which establish that plea are not present.
Chan Kau v. The Queen (1955) A.C. 206, at pp. 211, 212, referred to. Where a plea of self-defence to a charge of murder fails only because the death of the deceased was occasioned by the use of force going beyond what was necessary in the circumstances for the protection of the accused or what might reasonably be regarded by him as necessary in the circumstances, it is, in the absence of clear and definite decision, reasonable in principle to regard such a homicide as reduced to manslaughter.
So held by Dixon C.J., McTiernan, Fullagar, and Menzies JJ. Per Taylor J.: The test to be applied by a jury in cases where self-defence as justification is rejected rests upon a broader basis than the honest, though unreasonable, belief of the accused. It is sufficient if it appears that what the accused did was done primarily for the purpose of defending himself against an aggressor and the jury should be instructed that unless satisfied beyond reasonable doubt that this was not so a verdict of manslaughter should be returned.
To retreat before employing force is no longer to be treated as an independ ent and imperative condition if a plea of self-defence is to be made out. Whether a retreat could or should have been made is merely an element for the jury to consider as entering into the reasonableness of the conduct of the accused.
So held by the whole Court. In the absence of very special circumstances it is not the practice of the High Court to entertain an application for special leave from an order setting
aside a capital conviction and granting a new trial if there be no other ground for the application save that the State Court of Criminal Appeal ought to have taken a different view of the evidence or ought not in the particular case to have regarded some specific direction to the jury as necessary or ought, not- withstanding that some error of law appeared, to have held that no substantial miscarriage of justice had occurred.
Decision of the Court of Criminal Appeal of South Australia: Reg. v. Howe (1958) S.A.S.R. 95, affirmed.
APPEAL from the Court of Criminal Appeal of South Australia.
On 24th to 27th March 1958 Malcolm Horace Howe was arraigned before a judge and jury in the Supreme Court of South Australia in its criminal…
Grounds of appeal
[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.
[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.
[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.
Consideration
[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.
[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.
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AGLC
R v Howe [1958] HCA 38
Case
[1958] HCA 38
Decision Date
CaseChat Overview and Summary
The case of *R v Howe* involved an appeal to the High Court of Australia by the Crown against a decision of the Supreme Court of South Australia, sitting as a Court of Criminal Appeal. The Supreme Court had quashed a conviction for murder and ordered a new trial for the respondent, Malcolm Horace Howe. The Crown sought special leave to appeal on the grounds that the Supreme Court's decision involved important questions of law concerning the law of homicide, specifically relating to the defence of self-defence and the excessive use of violence.
The legal issues before the High Court primarily concerned the legal consequences when a plea of self-defence to a murder charge fails solely because the force used by the accused exceeded what was necessary for their protection, or what they reasonably believed to be necessary. The Supreme Court of South Australia had held that in such circumstances, the homicide should be considered manslaughter rather than murder. A further issue related to whether a duty to retreat was an essential condition for a plea of self-defence to succeed.
The High Court, in its judgment, affirmed the decision of the Supreme Court of South Australia. The Court reasoned that if a plea of self-defence is raised and fails only because the force used was excessive, it is reasonable in principle to reduce the charge from murder to manslaughter. This principle was supported by judicial statements in previous cases. The Court also held that the duty to retreat is not an independent and imperative condition for self-defence but rather an element for the jury to consider when assessing the reasonableness of the accused's conduct. The Court noted that it is not its practice to entertain appeals from orders setting aside capital convictions and granting new trials if the sole ground is a disagreement with the lower court's view of the evidence or the necessity of a particular direction, unless there is no substantial miscarriage of justice.
The High Court ultimately rescinded the special leave to appeal granted to the Crown. This indicated that while the legal principles concerning self-defence and excessive force were of importance, the Crown's appeal did not present grounds for the High Court to interfere with the order for a new trial made by the South Australian Supreme Court.