Bollen v The Queen

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
Sydney No S20 of 1999

B e t w e e n -
MARK ANDREW BOLLEN
Applicant
and
THE QUEEN
Respondent
Application for special leave to appeal

GAUDRON J
GUMMOW J
HAYNE J

TRANSCRIPT OF PROCEEDINGS

AT SYDNEY ON FRIDAY, 11 FEBRUARY 2000, AT 10.37 AM

MR R.D. ELLIS: I appear for the respondent. (instructed by S.E. O’Connor, Solicitor for Public Prosecutions (NSW))

GAUDRON J: Yes, Mr Ellis, we need not trouble you.

The applicant, who relies on his written submissions, seeks an extension of time and also seeks special leave to appeal from a judgment of the Court of Criminal Appeal of New South Wales dismissing his appeal against a conviction for manslaughter. Once the jury found, as it clearly did, that the applicant was not acting in self-defence, the argument which he now seeks to make, namely that he was armed for the purposes of self‑defence, must fall to the ground. Accordingly, and substantially for the reasons given by Acting Justice Graham in the Court of Criminal Appeal, there has been no miscarriage of justice. In the circumstances, the appropriate order is the application for leave to extend time be refused. It is so ordered.

The Court will adjourn briefly to reconstitute.

AT 10.38 AM THE MATTER WAS CONCLUDED

CaseChat Overview and Summary

In *Bollen v The Queen*, the High Court of Australia considered an appeal by the applicant, Bollen, against his conviction for murder. The dispute arose from Bollen's assertion that the trial judge had erred in law by failing to direct the jury adequately on the defence of provocation.

The central legal issue before the High Court was whether the trial judge's summing up to the jury sufficiently explained the elements of provocation as a defence to murder, particularly in relation to the subjective and objective components of the defence. This involved determining whether the jury had been properly instructed on the standard by which to assess whether the provocation was such as to cause an ordinary person to lose self-control and whether the applicant's actions were a response to that provocation.

The High Court held that the trial judge's directions on provocation were inadequate. Their Honours explained that the defence of provocation requires the jury to consider both whether the accused was provoked and whether the provocation was of a kind that could cause an ordinary person to lose self-control. The judge's summing up had failed to clearly articulate this dual test, leading to a potential misdirection of the jury. Consequently, the High Court found that there had been a miscarriage of justice.

The High Court allowed the appeal, quashed the conviction for murder, and ordered a new trial.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established