R v Rogers

In R v Rogers, the applicant, Melissa Rogers, appealed her conviction for attempted murder of her husband. The appeal concerned the trial judge's failure to direct the jury on the partial defence of provocation, as provided for in section 270AB of the Criminal Law Consolidation Act 1935. The applicant argued that the omission constituted a miscarriage of justice, entitling her to a lesser verdict of attempted manslaughter.

The central legal issue before the court was whether the evidence presented at trial was sufficient to raise the defence of provocation, thereby requiring the judge to instruct the jury on its availability. This involved an assessment of whether the provocation, viewed at its highest in favour of the applicant, was capable of causing an ordinary person to lose self-control and act in the manner the applicant did, and whether the applicant herself actually lost self-control as a result of the provocation.

The court considered the principles of provocation as outlined in *Lindsay v The Queen*, which requires both an objective and a subjective limb. The objective limb considers whether the provocation was such that an ordinary person might lose self-control and form the intention to kill or do grievous bodily harm. The subjective limb requires that the accused was actually provoked and acted while deprived of self-control. The court noted that the applicant's counsel had initially requested a direction on provocation but later withdrew it, stating it did not arise on the facts. Despite this withdrawal, the appellate court was required to determine if the evidence, when viewed most favourably to the applicant, was capable of supporting the defence.

Ultimately, the court allowed the appeal, set aside the conviction for attempted murder, and ordered a retrial. The court concluded that it was not an appropriate proceeding to substitute a verdict of attempted manslaughter and that a properly directed jury might have wholly rejected the defence of provocation.