The High Court has allowed an appeal from a decision of the South Australian Supreme Court relating to the provocation defence. The appellant was convicted of murdering Mr Negre who had made homosexual advances towards him, and was sentenced to life imprisonment. Lindsay’s primary line of defence was that it had not been proved beyond reasonable doubt that it was he, and not his co-accused, who had killed Negre. Although Lindsay had not argued the defence of provocation, the trial judge left it to the jury as an alternative verdict. A majority of the SASC held that the trial judge had erred in his directions to the jury on provocation, but still dismissed the appeal on the basis that provocation could not be made out because, given the attitudes towards homosexuality in contemporary Australia, no ordinary person would lose control and kill someone in the circumstances, and no reasonable jury could fail to find that.

The High Court unanimously allowed the appeal, quashed the appellant’s conviction and ordered a new trial. The joint judgment (French CJ, Kiefel, Bell and Keane JJ) held that the Court of Appeal majority’s focus on contemporary attitudes to homosexuality did not preclude the jury from still considering that the ‘sting’ in the provocation suggestion lay in, for example, the offer of sex for money in the appellant’s own home: at [37]:

The capacity of the evidence to support a conclusion that the prosecution might fail to negative the objective limb of the partial defence did not turn upon the appellate court’s assessment of attitudes to homosexuality in 21st century Australia. It was open, as the appellant submits, for the jury to consider that the sting of the provocation lay in the suggestion that, despite his earlier firm rejection of the deceased’s advance, the appellant was so lacking in integrity that he would have sex with the deceased in the presence of his family in his own home in return for money. And as the appellant submitted on the hearing of the appeal in this Court, it was open to a reasonable jury to consider that an offer of money for sex made by a Caucasian man to an Aboriginal man in the Aboriginal man’s home and in the presence of his wife and family may have had a pungency that an uninvited invitation to have sex for money made by one man to another in other circumstances might not possess.

Consequently, the question of the appellant’s reaction was a factual one to be left to the jury, and the trial judge did not err in leaving provocation open to the jury. Because the prosecution did not contend that the directions on provocation were correct and because neither side urged an alternative verdict of manslaughter be entered, the original verdict was unsound and a new trial has been ordered. Nettle J issued a seperate judgment concurring with the joint judgment’s conclusions.