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R v Cannes (1971) 1 WLR 1600


Edmond Davies LJ:

"The first criticism of the judge's treatment of self-defence is that he misdirected the jury in relation to the question of whether an attacked person must do all he reasonably can to retreat before he turns upon his attacker. The direction given was in these terms:

'In our law if two men fight and one of them after a while endeavours to avoid any further struggle and retreats as far as he can, and then when he can go no further turns and kills his assailant to avoid being killed himself, that homicide is excusable, but notice that to show that homicide arising from a fight was committed in self-defence it must be shown that the party killing had retreated as far as he could, or as far as the fierceness of the assault would permit him. '


We prefer the view expressed by the full court of Australia that a failure to retreat is only an element in the consideration upon which the reasonableness of an accused's conduct is to be judged (see Palmer v. The queen (1971) 2 W. L. R. 831, 840) or, as it is put in Smith and Hogan Criminal Law, 2nd edition (1969), page 231:

"..... simply a factor to be taken into account in deciding whether it was necessary to use force, and whether the force used was reasonable. "
 
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