Cant v The Queen

The case of *Cant v The Queen* was heard on appeal in the Supreme Court of South Australia, Court of Criminal Appeal. The appellant, Mr. Cant, was convicted of one count of murder. The appeal concerned the trial judge's directions to the jury regarding the defence of provocation.

The central legal issue before the Court of Appeal was whether the trial judge had erred in law by failing to adequately direct the jury on the subjective element of provocation, specifically in relation to the question of whether the appellant's actions were a response to a sudden or temporary loss of self-control. The appellant argued that the jury should have been instructed that the relevant loss of self-control did not need to be immediate, and that a period of reflection or brooding could still be consistent with a defence of provocation.

The Court of Appeal, in allowing the appeal, held that the trial judge's directions were insufficient. Applying the principles established in *R v Livermore* and *R v Davies*, the Court explained that while provocation requires a loss of self-control, this loss does not necessarily have to be instantaneous. The jury must be directed that the response need not be immediate, and that a period of brooding or reflection does not, as a matter of law, preclude a finding of provocation, provided that the ultimate act was still a response to a sudden or temporary loss of self-control. The Court found that the jury, in this instance, may have been misled into believing that any period of reflection would automatically negate the defence.

Consequently, the Court of Appeal quashed the conviction for murder and ordered a new trial.