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Goodman, J J --- "The Queen v Tikos (No 2) (Murder

of excessive force i n self-defence-Whether
plea of self-defence is to be considered by the court.
The case of T h e Queen v. T i b s (No. 2 ) 2 seems to have added a restriction
to the consideration of a plea of self-defence to a charge of murder in cases
where excessive force is used. T h e Queen v. Howe3 had been taken to
have clarified the law in this area, but, after the decision of the Supreme
Court of Victoria in Tikos, this may be doubtful, at least in Victoria.
The accused was convicted of murder and appealed; his appeal was
allowed and a re-trial was ordered.4 At the second trial the accused was
again convicted of murder and he again sought leave to appeal. The
grounds of appeal may be divided into two heads: (1) general objections to the trial judge's charge to the jury and (2) failure by the trial
judge to direct the jury as to the requirements of an occasion of selfdefence. After deciding that the first of these grounds had no substance,
the court went on to consider the second at some length. Tikos had
been convicted of the murder of one Patetl who had befriended him
and allowed him to live at his house for a period of one week. Subsequently, Tikos returned to the house and was surprised there by Patetl.
Tikos claimed that he had been threatened with a shotgun and after a
scuffle had obtained possession of the gun. The accused said that he
shot Patetl in self-defence as he was afraid of an attack.
In considering the question of excessive self-defence the court said:
W e would think, on principle, that it must be correct to say that the
crime of murder which, in general, involves as a necessary element an
intention to kill or to inflict grievous bodily harm, cannot be justified
or reduced to manslaughter under a plea of self-defence unless the
occasion be one which warranted the accused acting with intent to do
some kind of grievous bodily harm at the least.5
This statement followed the earlier pronouncement on similar lines in
T h e Queen v. Enright.6 In adopting this approach the court stated that the
view was in accordance with those. expressed in Howe's Case.' It would
seem, however, that the High Court did not intend that its judgment
was to be restricted in such a way. Dixon C.J., when considering selfdefence, was moved to observe:
that elements of a plea of self-defence existed. That is to say it is
assumed that an attack of a violent and felonious nature, or at least
of an unlawful nature was made or threatened so that the person
[I9631 V.R. 306. Supreme Court of Victoria; Herring C.J., O'Bryan and Adam
2 Ibid.
3 [1958] A.L.R. 753; 100 C.L.R. 448.
4 The Queen v . Tikos (No. 1) [1963] V.R. 285.
5 [1963] V.R. 306, 313.
6 [1961] V.R. 663, 668-69.
7 [1963] V.R. 306, 313.
Case Notes
under attack or threat of attack reasonably feared for his life or the
safety of his person from injury, violation or indecent or insulting usage.
This would mean that an occasion had arisen entitling the person
charged with murder to resort to force to repel force or apprehended
These may be taken to be the circumstances upon which a person is
entitled to defend himself. From this statement no support may be
found for the much narrower proposition put forward in The Queen v.
If the principle in Tikos were to be followed, the result would be that
a number of pleas of self-defence would be rejected which would constitute a good defence when considered in relation to the requirements
set forth in Howe's Case. Worthy of note is the fact that Dixon C.J.
used the words 'an attack of a violent . . . or at least of an unlawful
nature'. l o
Many attacks of an unlawful nature, which by the statement warrant
action in self-defence, would not fall within the category of an occasion
justifying the infliction of grievous bodily harm as required by the
Tjkos test. Dixon C.J. then considered the position where a person
acting in self-defence had used more force than the necessity of the
occasion required, and reached the conclusion that such a person is
guilty of manslaughter and not murder.ll McTiernan and Fullager JJ.
concurred with Dixon C.J.12 Menzies and Taylor JJ. delivered judgments
along similar lines.13 The decision in The Queen v. Tikosl4 seems to have
added a not insignificant qualification to the doctrine enunciated by the
High Court in The Queen v. Howe.15
In reaching its conclusions in The Queen v. Tikos,l6 it would seem that
the court was troubled by cases in which the mode of defence was outrageously disproportionate to the attack. Indeed, such cases were highlighted by Sholl J. in The Queen v. Tikos (No. l)l7 where he examined a
number of examples. Typical of these is the situation in which a wife,
who is about to throw cold water on her husband, in the sight and
presence of friends, because he has come home late, is struck by the
husband with an iron bar.18 In endeavouring to deal with such a
situation the court in Tibs's Case has approached the problem by
asking the question-Was the situation one in which the infliction of
grievous bodily harm was warranted? A more satisfactory solution to
the difficulty is that proposed by Taylor J. in The Queen v. Howe.Ig This
method proposes that the question be approached on the general basis
~ ~ answer would be reached by considering
of 'pretence of n e ~ e s s i t y ' .The
whether, in acting as he did, the accused acted under a real necessity
to defend himself or that his claim of necessity was a mere pretence.
9 19631 V.R. 306.
8 [1958]A.L.R. 753, 757; 100 C.L.R. 448, 460.
758, Ibil. 462.
10 [1958]A.L.R. 753, 757; 100 C.L.R. 448, 460.
12 Ibid. 759-60.Ihid. 464.
13 Thid. 760-768.Ibia. 465-477.
14 [19631Fv.k.'
1 5 [1958]A.L.R. 753;
C.L.R: 448.
16 [1963]V.R. 306.
18 Ibid. 291.
17 [I9631 V.R. 285.
20 Xbid. 468, Ibid. 762.
19 [I9581 A.L.R. 753; 100 C.L.R. 448.
Melbourne University Law Rmiew
This test would cover the case of the husband who attacks his wife
with an iron bar because he is about to become the recipient of a
bucket of cold water. Such a commonsense approach would not be
beyond any jury. Moreover, its adoption would mean that the important
decision in T h e Queen v. Howe21 would remain unscathed.
s ~ ~
Whether the interpretation of the court in T h e Queen v. T i k ~ will
meet with the approval of the High Court must await decision at a later
date. It is worth noting, however, that Tikos sought special leave to
appeal to the High Court. T h e High
in refusing special leave
to appeal, stated that the reason for the refusal was that there was no
evidence on which a jury could have put such a construction as to
entitle the accused either to an acquittal or to a verdict of manslaughter.
This refusal of leave to appeal is reported in a brief paragraph at the
end of the report of T h e Queen v. Tikos (No. 2).24Whether the mention
of this reason indicates a rejection of the reasoning of the Supreme Court
of Victoria on an expressio unius interpretation must: await decision on
another day.
Mistake-Recovery of money paid-Who
paid money-Materiality
mistake-Fraudulent misrepresentation-EfFect of fraudulently signed
mortgage-Mistake of fact.
This was an action brought by the respondent in the Supreme Court
of Queensland to recover from the appellant money which it was
alleged the respondent's solicitors had aid to the appellant under a
mistake of fact.
The complicated facts may be briefly stated as follows: L. H. Gill
whose father, X, owned property mortgaged with Y, fraudulently represented himself to be the owner of that property to the appellant in
order to borrow money from him on the security of the land. Porter
agreed and paid off X's mortgage to Y, the latter handing Porter the
documents of title and a mortgage discharge. L. H. Gill later approached
the respondent for a larger loan by way of mortgage over the land. The
respondent agreed and handed E3,000 to their solicitors, who then,
on instructions of L. H. Gill and the respondent, paid Porter the amount
which he (Porter) had advanced to Gill, Porter undertaking to uplift
the mortgage discharge and the title documents from the office of the
Registrar of Titles to hand them to the respondent's solicitors. Gill
gave the respondent a mortgage over the land and a bill of sale over
certain chattels on the land. T h e frauds were discovered, Gill was
arrested and convicted, but, as he was a man of straw, Latec Finance
was unable to recover the money advanced. They then sued Porter for
21 Ibid. 753, Ibid. 448.
23 Dixon C.J., Kitto, Menzies,
24 [I9631 V.R. 306.
22 [I9631 V.R. 306.
Windeyer and Owen JJ.
1 38 A.L.J.R. 184. High Court of Australia; Barwick C.J., Kitto, Taylor, Windeyer
and Owen JJ.
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