Gageler CJ
Gordon J
Gleeson J
Jagot J
Beech-Jones J
5.
"[This protection does not extend] to a case in which the person using force which causes death or grievous bodily harm endeavoured to kill or to do grievous bodily harm to some person before the necessity of so preserving himself or herself arose".
19 Again, this sentence requires little explanation. It provides that the protection does not extend to "a case" in which the accused causes death or grievous bodily harm to another and endeavoured to kill or do such harm "before the necessity of so preserving [themselves] arose". As s 272(2) identifies the cases to which the protection from criminal responsibility afforded by s 272(1) does not extend, it is apparent that the reference to "necessity" here picks up the concept of "necessity" that is introduced by, and provides the foundation of, the protection provided by sub-s (1). Understood in this way, the expression "the necessity of so preserving himself or herself" means the necessity of preserving himself or herself "from death or grievous bodily harm", in s 272(1).
20 Two features are common to both "cases" described in the first two clauses of s 272(2): first, the accused engaged in force that caused death or grievous bodily harm; and second, the accused's use of force before it was strictly necessary for self-preservation was accompanied by relevant intent. In the first scenario, the accused "begun the assault" with intent to kill or to do grievous bodily harm. The corollary is that such force was not in service of, or necessitated by, self-preservation. In the second scenario, the text is explicit – the accused engaged in such force before the necessity of so doing arose. While the phrase "death or grievous bodily harm" often forms part of a composite phrase used to describe the mental element for the offence of murder, that is not the sense in which that phrase is used in the first two clauses of s 272(2). Those clauses are directed to whether the accused will or will not be exonerated for two classes of offences (or "cases"), namely those where the accused occasioned death in response to the provoked assault and those where the accused occasioned grievous bodily harm in response to the provoked assault.
21 The third clause in s 272(2) commences with the phrase "nor, in either case, unless, before such necessity arose". The drafting of the third clause was variously described by the courts below as "peculiar" and difficult. The peculiarity arises because of the use of the terms "nor" and "in either case" in the opening phrase of the third clause.
22 As already noted, "nor" introduces both the second and third clause. This structure provides strong textual support for reading the third clause as an additional independent condition, rather than as a qualification on the operation of the two exclusions set out in the first two clauses of s 272(2). Consistent with that
