High Court of Australia

Lindsay v The Queen [2015] HCA 16

6 May 2015

Case Number: A24/2014

Before

French CJ, Kiefel, Bell, Keane, Nettle JJ

Catchwords

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.

Words and phrases – "minimum powers of self-control", "ordinary person", "partial defence".

Criminal Law Consolidation Act 1935 (SA) – s 353(1).
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