Marlow v The Queen

The case of *Marlow v The Queen* concerned an appeal to the High Court of Australia following a conviction for murder. The appellant, Marlow, 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 from the decision of the Court of Criminal 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 concept of "unlawful killing" as it related to the defence of provocation. Specifically, the court had to consider whether the jury, in determining whether the killing was unlawful, should have been directed to consider the elements of murder and manslaughter, and whether the defence of provocation could operate to reduce a charge of murder to manslaughter.

The High Court, in a joint judgment, held that the trial judge's directions to the jury were insufficient. Their Honours explained that for a killing to be unlawful, it must be more than merely a killing that is not justified or excused. It must be a killing that would otherwise constitute murder or manslaughter. The defence of provocation, if successfully raised, does not make a killing lawful; rather, it reduces an unlawful killing that would otherwise be murder to manslaughter. Therefore, the jury needed to be properly instructed that if they found the elements of murder were present, they should then consider whether the defence of provocation had been established, and if so, the verdict should be manslaughter.

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