R v Howe [1958] HCA 38

R v Howe [1958] HCA 38

If upon a charge of murder the jury finds that all the elements of self-defence are present except that the defendant, in defending himself, used more force than was necessary or reasonably believed to be necessary, the conviction should be for manslaughter, not murder. Failure to retreat is not an absolute bar to...

Source-derived case information.

Parties
Appellant: The Queen; Respondent: Malcolm Horace Howe
Jurisdiction
Australia
Procedural Posture
Criminal Appeal / Special Leave Appeal by the Crown to the High Court From an Order of the Supreme Court of South Australia (full Court) Allowing Appeal Against Conviction, Quashing Conviction for Murder and Ordering a New Trial
Outcome
Special leave to appeal rescinded; order for new trial by Full Court to stand.
Legal Topics
Murder, Manslaughter, Self Defence, Excessive Force, Jury Directions, Appeal Powers
Criminal Law Murder Manslaughter Self Defence Excessive Force Jury Directions Appeal Powers

Source-derived case record

Summary, issues, holding and outcome

More case intelligence is available

Unlock the full research layer for this judgment.

Full judgment text Downloadable case file Legal principles 3 Authorities cited 19 Party arguments 2 Amounts and remedies 1
Sign in to unlock

Parties

The Queen

Appellant

Malcolm Horace Howe

Respondent

Procedural Posture

Criminal Appeal / Special Leave Appeal by the Crown to the High Court From an Order of the Supreme Court of South Australia (full Court) Allowing Appeal Against Conviction, Quashing Conviction for Murder and Ordering a New Trial

Legal Issues

  1. 1 Whether the excessive use of force in self-defence reduces murder to manslaughter
  2. 2 Whether a verdict of manslaughter rather than murder is required where all elements of self-defence are made out except for proportionality of force
  3. 3 Whether failure to retreat is a categorical bar to self-defence

Ratio Decidendi

If upon a charge of murder the jury finds that all the elements of self-defence are present except that the defendant, in defending himself, used more force than was necessary or reasonably believed to be necessary, the conviction should be for manslaughter, not murder. Failure to retreat is not an absolute bar to self-defence and should be considered only as part of the circumstances. The trial judge’s directions on these matters were inadequate, justifying the order for a new trial.

Court Disposition

Special leave to appeal rescinded; order for new trial by Full Court to stand.

Orders

  • Order for special leave to appeal rescinded except as to undertaking of Crown as to costs.
  • Order of the Full Court of the Supreme Court of South Australia (quashing conviction and ordering new trial) stands.