Vo v the Queen S262/2000

The case of *Vo v the Queen* concerned an appeal to the High Court of Australia following a conviction for murder. The appellant, Vo, had been found guilty of murder by a jury in the Supreme Court of New South Wales and sentenced to imprisonment. The appeal to the High Court challenged the validity of that conviction.

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 concept of "unlawful killing" as it related to the defence of provocation. Specifically, the court had to consider whether the jury should have been instructed that the provocation must have been such as to cause an ordinary person to lose self-control and act as the accused did, and whether the subjective state of the accused was relevant to this objective test.

The High Court, in a joint judgment delivered by Kirby and Hayne JJ, held that the trial judge's directions on provocation were insufficient. Their Honours explained that the defence of provocation requires both a subjective element (that the accused was actually provoked and lost self-control) and an objective element (that the provocation was such as to cause an ordinary person to lose self-control and act in the way the accused did). The court found that the jury had not been properly instructed on the application of this objective standard, particularly in relation to the question of whether the provocation was sufficient to cause an ordinary person to react in the manner of the appellant. The appeal was therefore allowed, the conviction quashed, and a new trial ordered.