Fleming v The Queen

In *Fleming v The Queen*, the High Court of Australia considered an appeal against a conviction for murder. The appellant, Fleming, had been found guilty of murder by a jury in the Supreme Court of New South Wales and subsequently appealed to the Court of Criminal Appeal of New South Wales, which dismissed his appeal. The High Court then granted special leave to appeal.

The central legal issue before the High Court was whether the trial judge had erred in law by failing to direct the jury adequately on the defence of provocation. Specifically, the court had to determine if the judge's summing up sufficiently explained the concept of provocation as a partial defence to murder, and whether it adequately addressed the subjective and objective elements required for such a defence to be established.

The High Court, in a joint judgment, held that the trial judge's directions on provocation were inadequate. Their Honours explained that provocation, as a defence to murder, requires the jury to consider whether the act of the accused was a response to a sudden or temporary loss of self-control caused by something done or said by the deceased. Crucially, the jury must be satisfied that the provocation was such as would have caused an ordinary person to lose self-control and that the accused did, in fact, lose self-control. The judge's directions, in this instance, had not sufficiently articulated these elements, particularly the objective standard of the "ordinary person" and the requirement of a "sudden or temporary" loss of self-control.

Consequently, the High Court allowed the appeal, quashed the conviction for murder, and remitted the matter to the Court of Criminal Appeal of New South Wales to determine whether a conviction for a lesser offence, such as manslaughter, should be substituted.