McGhee v The Queen [1995] HCA 69

High Court of Australia Brennan, Deane, Dawson, Toohey and Gaudron JJ McGhee v The Queen [1995] HCA 69

ORDER Appeal dismissed

Cur adv vult

The following written judgments were delivered:—

13 July 1995 Brennan J.

The appellant and Ms de Vries lived together until 22 July 1992. Ms de Vries left their house and took up residence in a house where she shared a bedroom with a Mrs McDonald, with whom she had recently formed a lesbian relationship. The appellant was distressed by these events and, on 31 July, he sent Ms de Vries a message as a result of which they spoke on the telephone and an arrangement was made for her to call at the appellant's house at 6 pm that evening. She did not keep that appointment and, at some time after 6 pm, she telephoned him to tell him that she would not be meeting him as she had had too much to drink and was not able to drive. She suggested he come to her house and they talk in the car.

When the appellant arrived at the house he was admitted by one of the male occupants. He said that he saw Ms de Vries and Mrs McDonald sitting on the lounge room floor kissing. Ms de Vries spoke to him. He went away, came back and again spoke to Ms de Vries. Then he left once more but returned at about 9 pm, having picked up a rifle belonging to a friend in the meantime. Ms de Vries went outside to speak to him. She described him as being "pretty stressed out". She touched him on the cheek. He bent down and picked up the rifle and at one stage the barrel was pointing towards her. She grabbed hold of the barrel of the rifle and after some wrestling she was able to make her escape into the house. He went in pursuit of her, but Ms de Vries escaped through a bedroom window. He found Mrs McDonald in the bedroom. He fired the gun and wounded Mrs McDonald.

The appellant was charged before the Supreme Court of Tasmania on two counts: attempted murder of Ms de Vries and attempted murder of Mrs McDonald. He was convicted of the attempted murder of Ms de Vries and of unlawfully wounding Mrs McDonald. His appeal to the Court of Criminal Appeal against his conviction for attempted murder was dismissed (Green CJ and Wright J, Zeeman J dissenting). He appeals to this Court against the dismissal of his appeal by a grant of special leave which limits the grounds of appeal to what is in substance a single question, namely, whether a plea of provocation under s 160 of the Criminal Code Tas can be raised to defeat a charge of attempted murder. For the purpose of answering that question, the parties accept that the evidence was sufficient to establish the crime of attempted murder and, had Ms de Vries been shot and killed, would have been sufficient to raise the issue of provocation.