Pollock v The Queen [2010] HCA 35

HIGH COURT OF AUSTRALIA

FRENCH CJ,

HAYNE, CRENNAN, KIEFEL AND BELL JJ

ANDREW MURRAY POLLOCK APPELLANT

AND

THE QUEEN RESPONDENT

Pollock v The Queen [2010] HCA 35

20 October 2010

B14/2010

ORDER

1. Appeal allowed.

2. Set aside the order of the Court of Appeal of the Supreme Court of Queensland made on 11 September 2009 and, in lieu thereof, order that:

(a) the appeal to that Court be allowed;

(b) the appellant's conviction be quashed; and

(c) a new trial be held.

On appeal from the Supreme Court of Queensland

Representation

S J Keim SC with A E Cappellano for the appellant (instructed by Legal Aid Queensland)

M J Copley SC with J A Wooldridge for the respondent (instructed by Director of Public Prosecutions (Qld))

Notice: This copy of the Court's Reasons for Judgment is subject to formal revision prior to publication in the Commonwealth Law Reports.

CATCHWORDS

Pollock v The Queen

Criminal law – Defences – Provocation – Elements of provocation – Meaning of "sudden" – Whether accused's loss of self-control must immediately follow provocation – Scope of objective test – Whether there exists a discrete requirement that accused must commit fatal act before there has been time for loss of self-control to abate.

Criminal procedure – Directions – Use of model directions – Duty to frame directions by reference to issues.

Words and phrases – "loss of self-control", "sudden provocation", "time for passion to cool".

Criminal Code (Q), s 304.

FRENCH CJ, HAYNE, CRENNAN, KIEFEL AND BELL JJ.

Introduction 1. The appellant was convicted of the murder of his father following a trial before the Supreme Court of Queensland (Atkinson J and a jury). The sole question at the trial was whether the Crown had excluded the reasonable possibility that at the time the appellant did the act causing death he was acting under provocation. 2. Provocation, as a partial defence to murder, is provided in s 304 of the Criminal Code (Q) ("the Code"), which states: