Viro v The Queen

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Citation: Viro v The Queen (1978) 141 CLR 88.

This information can be found in the textbook, [1] pp 200-204.


Background Facts

  • Viro was convicted of murder in the Supreme Court of NSW - he was high off Heroine and claimed it was self defence. He was convicted and his appeal was dismissed.
  • The err was that the judge did not indicate that heroine is relevant to intent to kill or do grievous bodily harm - instead of directing to R v. Howe (HCA, 1955) and instead directed the jury to the Privy Council case of Palmer v. The Queen which said that where the defence fails only because of excessive force, it should still be murder.

Legal issues


Gibbs J:

  • Identifies the issue as whether the Court is bound to defer to the Privy Council decision that is in conflict with an earlier decision of THIS court.
  • His honour cites the Privy Council’s acceptance that common law can develop differently in such cases as Australian Consolidated Press Ltd. v. Uren (1967) 117 CLR 221, which consolidate potential differences in common law.
  • However, individuality should not be pursued for the sake of it and general principles should be applicable, as consolidated in Fatuma Binti Mohamed Bin Salim Bakhsuwen v. Mohamed Bin Salim Bakhshuwen [2].
  • As it stands, there are now two courts of appeal from the Supreme Courts of the Australian State - in exceptional circumstances, they can go to the Privy Council but generally go to the Court of Appeal, neither of which are subordinate to each other.
  • The question is then whether the High Court is bound by the Privy Council, and his honour accepts that it would not be in the Australian interest to immediately defer to Privy Council decisions.
  • His honour recognises that respecting those decisions are of high value, however. He claims that if this Court contradicts a Privy Council decision, the States will have to follow it unless later directed alternatively by the Privy Council.

Mason J:

  • His honour agreed that the High Court is not bound by Privy Council decisions.

Hence, it was found that Howe was to be followed rather than Palmer.


  1. Prue Vines, Law and Justice in Australia: Foundations of the Legal System, (2nd ed, Melbourne, Oxford University Press, 2009).
  2. (1952) AC 1
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