Spence v The Queen

In *Spence v The Queen*, the High Court of Australia considered an appeal from a conviction for murder. The appellant, Mr. Spence, had been found guilty of murder by a jury in the Supreme Court of Western Australia and sentenced to life imprisonment. The appeal to the High Court concerned the trial judge's directions to the jury regarding the defence of provocation.

The central legal issue before the High Court was whether the trial judge had adequately directed the jury on the elements of provocation, particularly in relation to the requirement that the provocation must be such as to cause an ordinary person to lose self-control. The High Court also considered whether the judge's summing up had created a substantial risk that the jury might have misunderstood the law, thereby leading to a miscarriage of justice.

The High Court, in allowing the appeal, found that the trial judge's directions on provocation were flawed. French CJ and Gordon J held that the judge's explanation of the "ordinary person" test was insufficient and potentially misleading. They emphasised that the jury must be instructed that the question is not whether the accused *was* an ordinary person, but whether the provocation was *enough* to cause an ordinary person to lose self-control, and that the accused's reaction must be one that a person of ordinary fortitude might have had in response to that provocation. The Court concluded that the misdirection was substantial and that there was a real possibility that the jury had applied an incorrect test, leading to a miscarriage of justice.

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