Sometimes, the clarity of a court’s exposition of a statutory provision makes one wonder why the legislation drafting office couldn’t come up with such clarity in the first place.
For example, see Dayney v The King [2024] HCA 22, at [1] and [26], referring to the third clause of s 272(2) of the Criminal Code (Qld).
Funnily enough, s 272(2) has some similarity to s 49(b) and (c) of the Crimes Act 1961 [NZ], provisions which were repealed on 1 January 1981.
From that date self-defence (and defence of another) has been governed solely by s 48.
Section 48 has been the victim of changing fashions in pronoun use,[1] its original and in my opinion more elegant version having used only the male pronoun. Even now, when we have so many more genders, the current s 48 seems somewhat old-fashioned.
But aside from that, s 48 is a justification, whereas the Queensland provision is merely an excuse. If the defendant provoked the assault, the use of force in self-defence or in defence of another may nevertheless be reasonable.[2]
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[1] You can have fun with de-pronouning legal writing; see my note here on 10 July 2014.
[2] Compare R v Rashford [2005] EWCA Crim 3377 at [19], Simon v R [2016] NZCA 449 at [18], R v Keane; R v McGrath [2010] EWCA Crim 2514, Zecevic v DPP (1987) 162 CLR 645 at 663. The defendant’s role in the incident is referred to in s 34(2)(c) of the Canadian Criminal Code, and see R v Khill, 2021 SCC 37.
