Wiskich v The Queen

The High Court of Australia considered an appeal by the applicant, Wiskich, against a conviction for murder. The applicant had been found guilty of murder by a jury in the Supreme Court of Queensland and subsequently appealed to the Court of Appeal of Queensland, which dismissed his appeal. The High Court granted special leave to appeal from the decision of the Court of Appeal.

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 evidence presented at trial was capable of supporting a finding that the applicant had acted under provocation, and if so, whether the jury had been properly instructed on the elements of this defence, including the requirement that the provocation must be such as to make an ordinary person lose self-control.

Gummow and Kirby JJ, in their joint judgment, analysed the evidence in relation to the defence of provocation. They referred to the established legal principles governing provocation, which require both an objective element (that the provocation was such as to make an ordinary person lose self-control) and a subjective element (that the particular accused did in fact lose self-control). The Court found that there was sufficient evidence of events occurring prior to the killing that could have been considered by the jury as provocation. However, they concluded that the trial judge's summing up did not adequately explain the objective test to the jury, leaving open the possibility that the jury may have applied an incorrect standard when considering the defence.

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