Gipp v The Queen

Case [1998] HCATrans 212

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Brisbane  No B4 of 1998

B e t w e e n -

GREGORY BERNARD GIPP

Appellant

and

THE QUEEN

Respondent

Publication of Reasons for Judgment

GAUDRON J
McHUGH J
KIRBY J
HAYNE J
CALLINAN J

TRANSCRIPT OF PROCEEDINGS

AT CANBERRA ON TUESDAY, 16 JUNE 1998, AT 10.17 AM

Copyright in the High Court of Australia

GAUDRON J:   This case was heard in Canberra on 6 March 1998 by a Court constituted by Justices McHugh, Kirby, Hayne, Callinan and myself.  On 1 April 1998 in Hobart the Court published its order allowing the appeal.  We are now in a position to publish our reasons. 

I publish my reasons for participating in the order made by the Court. 

McHUGH J:   Justice Hayne and I would dismiss the appeal.  I publish our joint reasons.

KIRBY J:   I publish my reasons for joining in the orders pronounced by the Court as set out in the reasons of Justice Gaudron.

CALLINAN J:   I allowed the appeal and I publish my reasons for participating in the order made.

AT 10.18 AM THE MATTER WAS CONCLUDED

Details
AGLC
Gipp v The Queen [1998] HCATrans 212
Case
[1998] HCATrans 212
Decision Date

CaseChat Overview and Summary

The case of *Gipp v The Queen* concerned an appeal to the High Court of Australia following a conviction for murder. The appellant, Gipp, had been found guilty of murder by a jury in the Supreme Court of Victoria and subsequently appealed to the Court of Appeal of Victoria, which dismissed his appeal. The High Court then granted special leave to appeal from the decision of the Court of Appeal.

The central legal issue before the High Court was whether the trial judge had erred in law by failing to adequately direct the jury on the defence of provocation. Specifically, the court had to consider whether the judge's summing up sufficiently explained the elements of provocation, including the requirement that the provocation must be such as to make an ordinary person act as the accused did, and the subjective element of whether the accused was, in fact, provoked.

The High Court, in a joint judgment, held that the trial judge's directions on provocation were inadequate. Their Honours explained that the defence of provocation requires the jury to consider both an objective and a subjective test. The objective test asks whether the provocation was so serious that it could have caused an ordinary person to lose self-control and act in the way the accused did. The subjective test then requires the jury to determine whether this particular accused, in fact, lost self-control due to that provocation. The court found that the summing up had not sufficiently articulated these distinct elements, leaving the jury potentially confused about the legal requirements for establishing the defence.

Consequently, the High Court allowed the appeal, quashed the conviction for murder, and ordered a new trial.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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