Catchwords

CRIMINAL LAW – GENERAL MATTERS – CRIMINAL LIABILITY AND CAPACITY – DEFENCE MATTERS – SELF-DEFENCE AND OTHER FORMS OF DEFENCE – GENERALLY – requirements of self-defence against an unprovoked assault under s 271(2) Criminal Code 1899 (Qld) – nature of assault must be such as to cause a reasonable apprehension of death or grievous bodily harm – defendant must honestly believe on reasonable grounds that she or he could not self-preserve other than by using the force she or he actually used – no additional requirement that the force that was in fact used be objectively necessary for self-preservation

CRIMINAL LAW – GENERAL MATTERS – CRIMINAL LIABILITY AND CAPACITY – DEFENCE MATTERS – SELF-DEFENCE AND OTHER FORMS OF DEFENCE – GENERALLY – requirements of self-defence against a provoked assault under s 272 Criminal Code 1899 (Qld) –nature of assault must be such as to cause a reasonable apprehension of death or grievous bodily harm – defendant must honestly believe on reasonable grounds that she or he could not self-preserve other than by using the force she or he actually used – force used must be objectively necessary for self-preservation – whether a defender who uses lethal force before it is objectively necessary for self-preservation can re-qualify for self-defence under s 272 if the defender actually retreats before using lethal force

CRIMINAL LAW – APPEAL AND NEW TRIAL AND INQUIRY AFTER CONVICTION – MISCARRIAGE OF JUSTICE – PARTICULAR CIRCUMSTANCES INVOLVING MISCARRIAGE – MISDIRECTION AND NON-DIRECTION – Crown conceded at trial that plea of self-defence against unprovoked assault under s 271(2) Criminal Code 1899 (Qld) was open on the facts – trial judge misdirected jury by introducing the additional requirement that the force actually used be objectively necessary for self-preservation in relation to unprovoked self-defence plea – trial judge should have focused solely on the actual belief of the defender not the objective necessity of the force used – jury not able to clearly and fairly decide whether plea of self-defence against unprovoked assault was available

CRIMINAL LAW – APPEAL AND NEW TRIAL AND INQUIRY AFTER CONVICTION – PARTICULAR GROUNDS – UNREASONABLE OR INSUPPORTABLE VERDICT – MISDIRECTION AND NON-DIRECTION – proviso under s 668E(1A) Criminal Code 1899 (Qld) not applied – while Prosecution’s case that the appellant was guilty of murder was very strong, a reasonable jury properly directed as to self-defence against unprovoked assault under s 271(2) Criminal Code 1899 (Qld) would not inevitably have concluded beyond reasonable doubt that the appellant was not acting in self-defence to the deceased’s unprovoked assault upon him