Liu v The Queen

Liu was the applicant and The Queen was the respondent in proceedings before the High Court of Australia concerning the applicant's conviction for murder. The applicant sought special leave to appeal against a decision of the Court of Criminal Appeal of New South Wales, which had dismissed his appeal against that conviction.

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 applicant contended that the jury should have been instructed that a subjective element of provocation, requiring the act to be done under the influence of passion, was not a necessary component of the defence.

Kirby and Crennan JJ granted special leave to appeal and allowed the appeal, quashing the conviction and ordering a new trial. Their Honours held that the trial judge's directions on provocation were erroneous. They applied the principles established in *Starkey v The Queen*, which clarified that provocation does not require the act to be done under the immediate and actual influence of passion. Instead, the focus is on whether the provocation was such as to cause an ordinary person to lose self-control and act as the accused did, and whether the accused did in fact lose self-control. The jury must be instructed that the subjective element is whether the accused *did* lose self-control, not whether they were *under the influence of passion* at the time of the act.