Lindsay v The Queen [2015] HCA 16

HIGH COURT OF AUSTRALIA

FRENCH CJ, KIEFEL, BELL, KEANE AND NETTLE JJ

MICHAEL JOSEPH LINDSAY APPELLANT

AND

THE QUEEN RESPONDENT

Lindsay v The Queen [2015] HCA 16 6 May 2015 A24/2014

ORDER

1. Appeal allowed.

2. Set aside the order of the Court of Criminal Appeal of the Supreme Court of South Australia made on 3 June 2014 and, in its place, order that:

(a) the appeal be allowed;

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

(c) a new trial be had.

On appeal from the Supreme Court of South Australia

Representation

M E Shaw QC with B J Doyle for the appellant (instructed by North East Lawyers)

M G Hinton QC, Solicitor-General for the State of South Australia with F J McDonald for the respondent (instructed by Director of Public Prosecutions (SA))

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

CATCHWORDS

Lindsay v The Queen

Criminal law – Murder – Defences – Provocation – Where male Caucasian deceased made sexual advances towards male Aboriginal appellant at appellant's home in presence of appellant's de facto wife and family – Where open to jury to find that appellant killed deceased having lost self-control following advances – Where provocation left to jury at trial and appellant convicted of murder – Where Court of Criminal Appeal ("CCA") dismissed appeal against conviction because it concluded provocation should not have been left to jury as evidence, taken at highest, could not satisfy objective limb of provocation – Whether CCA erred in so concluding – Relevance of contemporary attitudes to sexual relations.

Criminal law – Appeal – Appeal against conviction – Application of proviso – CCA dismissed appeal by applying proviso to s 353(1) of Criminal Law Consolidation Act 1935 (SA) – Where CCA not invited to apply proviso by prosecution – Whether CCA erred in invoking and applying proviso of its own motion.