Lindsay v The Queen

The High Court of Australia heard an appeal from the Court of Criminal Appeal of South Australia concerning a conviction for murder. The appellant, an Aboriginal man, was convicted of murder after killing a Caucasian male at his home. The defence of provocation had been left to the jury at trial, and the appellant was subsequently convicted. The Court of Criminal Appeal dismissed the appellant's appeal, finding that provocation should not have been left to the jury as the evidence, even at its highest, could not satisfy the objective limb of the defence.

The legal issues before the High Court were whether the Court of Criminal Appeal erred in concluding that the evidence was insufficient to satisfy the objective limb of provocation, and whether the Court of Criminal Appeal erred in invoking and applying the proviso to section 353(1) of the *Criminal Law Consolidation Act 1935* (SA) of its own motion, without invitation from the prosecution. The Court was also required to consider the relevance of contemporary attitudes to sexual relations in assessing provocation.

The High Court found that the trial judge had not erred in leaving the defence of provocation to the jury. The Court reasoned that there was ample evidence for the jury to consider the subjective limb of provocation, namely that the appellant was provoked by the deceased's conduct and lost self-control. The jury's assessment of this evidence was critical to evaluating how an ordinary person might have reacted, and therefore to satisfying the objective limb. The Court concluded that it was open to the jury to have a reasonable doubt as to whether an ordinary person subjected to the same provocation could have lost self-control to the extent of forming the intent to kill or inflict grievous bodily harm.

The appeal was allowed, the order of the Court of Criminal Appeal was set aside, and the appellant's conviction was quashed. A new trial was ordered.