R v Thompson

This appeal concerns the conviction of the appellant, Thompson, for the murder of Mr Knyvett. The appellant argued at trial that the killing was the result of sudden provocation in the form of an unwanted sexual advance by Mr Knyvett. The Court of Appeal was asked to determine whether the primary judge's misdirection of the jury in applying section 304 of the Criminal Code (Qld) as amended by the Criminal Law Amendment Act 2017 (Qld) constituted a substantial miscarriage of justice, warranting the appeal's allowance and a retrial.

The key legal issue was whether the application of the proviso in section 310(3) of the Criminal Procedure Act 2009 (Qld) precluded the Court of Appeal from allowing the appeal. The appellant argued that the Court should not be persuaded that the evidence proved the appellant's guilt of murder, and that the case was one where there had been a substantial miscarriage of justice regardless of guilt. The Court considered whether the primary judge's misdirection led to a situation where the jury did not determine whether the appellant was guilty of murder, and whether this amounted to a substantial miscarriage of justice.

The Court found that applying the proviso would require it to exercise the function of the jury in determining whether the defence of provocation was established, which the jury had not done. The Court held that allowing the appeal and ordering a retrial was necessary because the primary judge's misdirection prevented the jury from properly considering the appellant's defence of sudden provocation. The Court concluded that the application of the proviso was not appropriate in this case, as it would substitute trial by an appeal court for trial by jury.

The Court allowed the appeal, quashed the appellant's conviction, and ordered a retrial. This decision ensures that the appellant has the opportunity to present his defence of sudden provocation to a properly directed jury, rectifying the error that occurred in the original trial.