Wu v The Queen

The case of *Wu v The Queen* concerned an appeal to the High Court of Australia following a conviction for murder. The appellant, Wu, had been found guilty of murder by a jury in the Supreme Court of New South Wales and subsequently appealed this conviction to the Court of Criminal Appeal of New South Wales, which dismissed his appeal. Wu then sought special leave to appeal to the High Court.

The central legal issue before the High Court was whether the trial judge had erred in law by failing to adequately direct the jury on the defence of provocation. Specifically, the court had to consider whether the jury had been properly instructed on the objective elements of provocation, namely whether the provocation was such as to make an ordinary person act as the accused did, and the subjective elements, which relate to the state of mind of the accused.

Kirby and Callinan JJ, in their joint judgment, considered the principles governing the defence of provocation as established in Australian jurisprudence. They emphasised that the defence requires both a subjective element (that the accused was provoked) and an objective element (that the provocation was sufficient to cause an ordinary person to lose self-control and act in the way the accused did). The court analysed the trial judge's summing up in light of these principles, examining whether the jury had been given a clear and comprehensive explanation of both aspects of the defence, particularly in relation to the evidence presented at trial.

The High Court granted special leave to appeal, heard the appeal, and ultimately dismissed the appeal, finding that the trial judge's directions on provocation, when viewed in their entirety, were sufficient and did not contain an error of law.