Miller v The Queen

This matter concerns an application for special leave to appeal to the High Court of Australia by Mr G.P. Miller, QC, appearing with Mr R.A. Mazza, against the respondent, represented by Mr M.J. Murray, QC, and Mr L. Robbins. The applicant sought to appeal a decision of the Court of Criminal Appeal of Western Australia. The applicant had been charged with the wilful murder of his de facto wife, Ms Grech, who died from a shotgun wound to the head. The incident occurred in a caravan where they lived, and evidence suggested the shotgun was fired at close range. The applicant and a friend had been drinking for several hours prior to the incident.

The central legal issue before the High Court was whether, in a trial for wilful murder in Western Australia, a specific direction must be given to the jury regarding the effect of intoxication on the required intent. The applicant contended that if the jury, considering evidence of intoxication or otherwise, was not satisfied that the accused possessed the necessary intent for wilful murder, they must acquit of that specific charge. This formulation is commonly referred to as the VIRO formulation, derived from the judgment of Gibbs J (as he then was) in *Viro v The Queen*.

The applicant's defence at trial heavily relied on the issue of intoxication. It was submitted that the trial judge failed to adequately direct the jury on the principle that intoxication could negate the specific intent required for wilful murder. The applicant argued that the jury should have been explicitly instructed that if they were not satisfied beyond reasonable doubt that the applicant had the requisite intent due to intoxication, they were obliged to acquit him of wilful murder. The High Court was therefore required to consider the proper application of the VIRO formulation in the context of a wilful murder charge where intoxication was a significant factor.