Green v The Queen

In *Green v The Queen*, the High Court of Australia considered an appeal against a conviction for murder. The central issue revolved around the defence of provocation and how the characteristics of the accused should be assessed when applying the objective limb of that defence. Specifically, the Court grappled with whether certain subjective knowledge held by the accused, relating to the sexual abuse of his siblings, was so peculiar to him that it should be excluded from the consideration of an "ordinary person" in his position when evaluating the provocative nature of unwanted sexual advances. The homosexual nature of the sexual advance was also a relevant consideration in this context.

The High Court was required to determine whether the trial judge had erred in failing to adequately direct the jury on the significance of the deceased's conduct towards the accused, particularly in light of the accused's subjective knowledge. This involved an examination of the proper application of section 23 of the *Crimes Act 1900* (NSW), which codifies the defence of provocation. The Court had to consider the interplay between the subjective elements of provocation (the accused's state of mind) and the objective element (whether an ordinary person, in the position of the accused, would have reacted in the same way).

The Court reasoned that the jury directions were insufficient because they did not properly explain how the accused's subjective knowledge, including his awareness of the sexual abuse of his siblings and the homosexual nature of the advance, could be relevant to the objective assessment of provocation. The majority held that the "ordinary person" test in provocation requires the jury to consider all the circumstances of the accused, including his personal characteristics and knowledge, provided they are not so extreme or peculiar as to render the hypothetical ordinary person entirely different from the accused. The Court concluded that the jury should have been directed that the deceased's conduct, viewed through the lens of the accused's particular circumstances, might have been sufficient to cause an ordinary person to lose self-control.

Consequently, the High Court allowed the appeal, set aside the order of the Court of Criminal Appeal of New South Wales, and ordered that the conviction be quashed and a new trial be had.