Mullally v The Queen

In *Mullally v The Queen*, the High Court of Australia considered an appeal against a conviction for murder. The appellant, Mullally, had been found guilty of murder by a jury in the Supreme Court of Victoria and subsequently appealed to the Court of Appeal of Victoria, which dismissed his appeal. Mullally then sought and was granted special leave to appeal to the High Court.

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 court had to determine if the judge's summing up had sufficiently explained the elements of provocation, including the requirement that the provocation must be such as to make an ordinary person act in the way the accused did, and whether the jury had been properly instructed on the subjective element of whether the accused had, in fact, been provoked.

The High Court, comprising Hayne and Callinan JJ, allowed the appeal. Their Honours found that the trial judge's directions on provocation were inadequate. They held that the summing up had not clearly articulated the dual objective and subjective tests required for the defence of provocation to be left to the jury. The failure to properly explain that the provocation must be capable of causing an ordinary person to lose self-control, and that the jury must then consider whether the accused himself lost self-control by reason of that provocation, constituted a misdirection. This misdirection meant that the jury may not have fully understood the legal requirements for establishing the defence, potentially leading to an unsafe conviction.

Consequently, the High Court quashed the conviction for murder and ordered a new trial.