Masciantonio v The Queen

[1994] HCATrans 370

,;-~JA

•

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry

Melbourne No M136 of 1993

B e t w e e n -

GIOVANNI MASCIANTONIO

Applicant

and

THE QUEEN

Respondent

Application for special leave

to appeal

MASON CJ DAWSON J GAUDRON J

TRANSCRIPT OF PROCEEDINGS

AT MELBOURNE ON FRIDAY, 10 JUNE 1994. AT 10.52 AM

Copyright in the High Court of Australia

Masciantonio 1 10/6/94

MR M.S. WEINBERG, QC: If the Court pleases, in this matter

I appear together with my learned friend,

MR R. VAN DEWIEL, on behalf of the applicant.

(instructed by Valos Black & Associates)

MR B.D. BONGIORNO, QC: If the Court pleases, I appear with

my learned friend, MR T. GYORFFY. (instructed by

the Director of Public Prosecutions (Victoria))

MASON CJ:	Mr Weinberg.
MR WEINBERG:	If the Court pleases, the Court should have

two sets of submissions on behalf of the applicant,

an original set and what are described as

supplementary submissions on behalf of the

applicant. In speaking to those submissions and to

the grounds, we start with the assertion or the

submission that this was in fact a somewhat unusual

case in that an experienced trial judge held that

there was evidence of provocation fit to go to the

jury, and left provocation to the jury, so

His Honour thought and intended, but through a

combination of misdirections, effectively withdrew

provocation from the jury as the Court of Criminal

Appeal ultimately held he had done.

The Court of Criminal Appeal said that they

would have allowed the appeal and ordered a new

trial but for the fact that in their assessment

provocation should never have been left at all.

Our complaint is that in coming to that conclusion

the court has misunderstood and, with respect,

misapplied certain of the statements of principle

laid down by this Court in Stingel. In particular,

we say that what the Court of Criminal Appeal did

in this case in the majority judgment was to apply

the observations of this Court in Stingel in such a

way as to create not an "ordinary man" test but an

ordinary stranger test.	We use that expression
advisedly because we say that the court effectively

depersonalized the applicant, took from him, when considering an ordinary person in the position of the applicant might have acted as the applicant

did, everything that was fundamental to correctly

answering that question, namely the history of his

relationship with the deceased; the entire

background between the two, the applicant and the

deceased; the relationship between the deceased and

the applicant's daughter; all of the voluminous

evidence that was led in support of provocation at

the trial.

MASON CJ:  Mr Weinberg, before you get to that, could we

take up with you the question whether there was a

case of provocation to go to the jury, because the

Masciantonio 2 10/6/94

Court of Criminal Appeal took the view that there

was not.

MR WEINBERG:  Yes, it did, Your Honour, but in doing so, in

our submission, the court did that when they assessed the evidence at its highest for the applicant, as they were obliged to do for the

purpose of the relevant question that Your Honour

has just posed. Your Honours will find that in the

application book at page - - -

MASON CJ: Is it pages 66, 67?

MR WEINBERG:  Page 145 of the application book at the

bottom. Your Honours will see at the bottom of

that page, about line 19, what the court said was

this:

The words "Piss off" are not in

themselves capable of constituting

provocation. They were clearly not of the

violent kind capable of providing an exception

to the common law rule that words alone are

insufficient to found the defence of

provocation.

And then the court said this:

At its highest for the applicant the case

may be considered as constituted by the

deceased telling the applicant to "Piss off"

accompanied by or followed by a push

sufficient to make the applicant fall and feel

pain in his elbow. We assume, despite there

being other evidence to put this version very

much in doubt, that it was accepted by the

jury.

On that assumption -

and then the court set out at page 146 a comparison
of Stingel.	Then the court said that this Court in

Stingel held that the facts in Stingel could not

have raised a reasonable doubt on the objective

test. So what the court did was to balance the

case at its highest for this applicant as against

the case in Stingel. The court said Stingel was

stronger than this case and therefore this case of provocation should not have been left to the jury.

The problem was that the Court of Criminal Appeal

did not take the case at its highest for the

applicant; it took the case in a very restricted

way, that is "Piss off", a push, as though the

applicant were a total stranger to the deceased, as

though - - -

Masciantonio	10/6/94
MASON CJ:	The actual evidence is at 66, 67, is it not?

When I say the actual evidence, at least the

evidence referred to by the trial judge.

MR WEINBERG: That is a summary, Your Honour, of what

occurred at the scene, but that is not the actual
evidence which gives rise to the totality of the

circumstances which are relevant in assessing the

gravity of the provocation. There is the fact that

the deceased was the son-in-law of the applicant.

There is a long history of abuse by the deceased

towards the applicant's daughter and the applicant

was a grandfather, concern about the children. The

history of taking the house, the history of ripping
the daughter of in terms of the financial assets.

All of the matters that are set out as background,

fundamental background. A day or two prior to this

incident the deceased again said he was going to

leave the applicant, took the property that

belonged to the applicant, left the house, was

going to walk away again - all of that background

is entirely detached from the defence case at its

highest as it is put by the court at page 145 at

the foot of the page.

MASON CJ: But when you look at pages 66 and 67, according

to the applicant the reason for taking up the knife

and, presumably, for attacking the deceased with

the knife was a claim that he had been, as it were,

pushed, apart from the use of the expression "Piss

off", an attempt had been made to kick him, the

kick missing. Then he said, as a result of that:

I fell on the ground near my car". "Do you

know what hit your elbow, or where you hit

your elbow?" "No, I didn't. I don't know, I

didn't see.	I just felt the pain and the
heat".	He said, "I got very scared because I

didn't expect a similar business".

MR WEINBERG: That was the evidence, Your Honour, that he

gave, but it was not the first account that he gave

to the police when he was interviewed immediately

after. The first account that he gave to the

police involved saying that he lost control, that

he was very angry as a result of what had happened.

So that taking the case at its highest, there were

a variety of different emphases, if one can put it

that way.

What the Full Court said was, "Look, it is

very significant he did not say in his evidence in-

chief that he lost self-control. That is a matter

which we take into account." But he had said it as

soon as he was interviewed by the police, that he

had totally lost control as a result of this

conduct and there is no doubt that provocation was

Masciantonio 10/6/94

a major defence run in the trial and reliance was

placed upon all of the evidence, as it had to be,

and the jury were entitled, of course, to have

regard to the evidence for the accused, taken at

its highest, which means that the Court of Criminal

Appeal cannot, as it were, pick and choose. It

must assume that there is, if there is evidence fit

to be considered, and there was, because he said he

lost control - there was also a photograph of a

very bad gash to the man's elbow which he said he

received as a result of being pushed against the

car or words to that effect - in combination with

the fact that this is a son-in-law who, over a

period of years, has treated his daughter so badly,

and all the background and history, as Your Honours

said in Stingel's case, the whole background, the

whole history of the relationship affects certainly

the gravity of the provocation offered.

This was not a stranger who came along and

said, "Piss off" and pushed him and caused him an

injury to his elbow. This was his son-in-law who

has just told him that he was about to leave his

daughter again - - -

GAUDRON J:	Had in fact left, had he not?
MR WEINBERG:	And had in fact left, Your Honour.

GAUDRON J: And was taking her property with him.

MR WEINBERG:  And the reason why he approached him, as he

said, was to remonstrate with him about the breakup

of the relationship. That was the very point of

going to the place, to talk to him, and he is
treated - instead of talking about what he has done
to his daughter, he is treated in this way.

When you put that background into the matter, the "ordinary man" test, in our submission, takes

on a very different complexion. In our submission,

what happened was that the Full Court really, we

say with respect, has treated the observations of

this Court in Stingel, which set out the operation

of the "ordinary man" test, in a way that is

dangerous to the administration of justice because
it was never the intention of this Court, in our

submission, when applying the "ordinary man" test,

to say that one ignores the history of the

relationship, the background matters that are
relevant, because it is after all, in our

submission, still the ordinary man in the shoes of

the accused.

Certainly one disregards ethnicity, one

disregards all personal characteristics apart from

age, as Stingel lays down, but in our respectful

Masciantonio 10/6/94

submission what the Court of Criminal Appeal has

done is to say, "Well, that is not the way in which

we are going to approach it", and it becomes clear

that that is what the members of the court did

because they compared the bare facts of provocation

with Stingel and said this was less than Stingel.

That, with respect, caused Mr Justice Ormiston concern. His Honour took the view that was an

inappropriate way - - -

DAWSON J: There is a difficulty about that. On no version

did the accused take the knife for the purpose

of ..... , so that you see when he went there he was

not, as it were, provoked. The background

circumstances were not really operating in his

relationship - - -

MR WEINBERG:  He said he was angry, Your Honour, the night before when he learnt about what had happened. He

was in a state - he had been crying all night. I mean there was a lot of background evidence about

the state of mind and the anger that had been

welling up inside him - - -

DAWSON J: Perhaps so, but when one looks at the events that

occurred, it is stretching the imagination a lot to say that it is the explanation of taking up a knife

and stabbing this man a number of times, that an

ordinary man would have reacted in that way.

MR WEINBERG:  He lost control. Your Honour, all the members

of the court accepted that there was evidence that

he lost self-control.

DAWSON J: Then it is a question of what the ordinary man

would do.

MR WEINBERG:  Yes, Your Honour, and what we say is that the

correct test in relation to what the ordinary man

might do is to ask the question whether an ordinary

man in the position of the accused, that is the

history, the relationship, that much must be, we

submit, vested in the ordinary man. It is not a

depersonalized ordinary stranger. It is the

ordinary man in that relationship. Nothing in

Stingel, we say, was designed or intended to take away the history and background of the relationship

as the Court of Criminal Appeal appears to think

that it should have done. Only personal

characteristics and attributes of a different kind

of nature were taken away: bad temper,

pugnaciousness, matters of that kind.

But, Your Honour, if he had taken the knife there with the intention of using the knife, he

would have no defence of provocation at all.	The
point was the knife was there for an innocent

Masciantonio 6 10/6/94

purpose. Instead of being able to speak to his

son-in-law and remonstrate with him about the

treatment the son-in-law was meting out to his

daughter, he was accorded this treatment. He is an

older man, a grandfather; he is pushed, he is told

to "Piss off", he is treated in this fashion and he

reaches for the knife and a jury, in our respectful

submission, might very well have thought that an

ordinary man, faced with that combination of

circumstances, might have formed at least an

intention to cause serious injury which, we submit,

is the relevant test.

That is the second error that the Full Court has made, in our respectful submission. They have

reintroduced what we submit is a long discredited,

in effect, rule of law of proportionality and what

the court has said is, "You might have understood

if he had picked up a rock and bashed him over the

head with intent to kill, but here, he took the

knife and stabbed him in a frenzy many many times;

that is beyond the provocation."

Your Honours, we say two things. We say the

"ordinary man" or ordinary person test is really
very much a question for a jury, very much. It is
less of a question of law than many other

questions. It is less of a question that a judge

is more suitable to comment on than a jury in

almost all cases. Once there is, in fact, evidence
of provocation, actual loss of self-control, in our

submission to allow a case of provocation to be

taken from the jury on the basis that an ordinary
man might not have acted in that way requires a

very very extreme case, far less than was present

in this case.

There was more provocation here than in many

cases in which provocation has been routinely left

to juries and juries can very capably determine

whether an ordinary man might or might not have been affected in the way that this man was.

DAWSON J:  Of course the trial judge did leave it to the

jury.

MR WEINBERG:	He did, he was a very experienced judge.
DAWSON J:	I must say for my own part - and I do not read

his comments as withdrawing - - -

MR WEINBERG: That is a different matter, Your Honour.

DAWSON J:	I know it is a different matter.
MR WEINBERG:	And the Court of Criminal Appeal did and we

submitted very earnestly, strongly, perhaps

Masciantonio 10/6/94

passionately, that that was what His Honour had

done and the court accepted our arguments, and I do

not really have time in the minute or so that is

left to me to defend that proposition here.

DAWSON J:  No, do not go into it, but we are really talking

about miscarriage of justice here. We are not

talking about the test that the trial judge went

to.

MR WEINBERG:  No, we are not. That is why I said at the

outset it is an unusual case because a very
experienced trial judge who heard all the evidence,

saw the witnesses, came to the firm view that

provocation should have been left to the jury, over

the objection of the Crown, I should say.

His Honour said, "Oh no" when the Crown said,

"Don't leave provocation", His Honour came to the

firm view that provocation should be left. Then,

as it happens, in the Court of Criminal Appeal,

Their Honours held that really the trial judge had
unintentionally withdrawn provocation from the
jury, or misdirected the jury on provocation, but
in effect applied what can only be described as the

proviso saying, well, there was no miscarriage

because provocation should never have been left.

And it is that last aspect that brings us

before this Court. There is no attack upon the

trial judge's conduct or charge in this Court. It

is upon the approach adopted by the Court of

Criminal Appeal, the interpretation which that
Court has given to Stingel, and the potential, in

future cases of provocation, for judges to withdraw that defence from the jury in circumstances where a

very much restricted view is taken of what amounts
to the provocation case. This was not a

provocation case about "Piss off" and a push, as

the court said.	The whole issue occupied about a
minute of time in the Court of Criminal Appeal, I
should say.	Mr Justice Marks said to me, "What if

we take the view that provocation should not be

left?" and I said to him words to the effect, "If

Your Honours come to. that conclusion, we will have

to see whether the High Court will correct you."

But that was the full extent of the debate about

whether the issue should have been left to the jury

or not.

In our respectful submission, the court having

come to that view for reasons which we submit, on a

proper reading of their judgment, demonstrate

error, an important error of principle in the

approach to be adopted to the "ordinary man" test

and to proportionality, it is very important, in

our submission, it cannot be the law that one stab

wound is sufficiently proportionate but five or 20

Masciantonio 10/6/94

are not, simply because we are talking ex hypothesi

about a person who has lost self-control, and loss

of self-control sufficient to form an intent to

kill is loss of self-control. One would have

thought quite the reverse, that the more frenzied the response, the greater the evidence of loss of

actual self-control.

So, in our respectful submission to this

Court, this Court should grant special leave in

this particular case because of the questions of

principle which arise out of the interpretation of

the Court of Criminal Appeal in this case in
relation to the two aspects: the operation of the

"ordinary man" - as we call it the ordinary

stranger - test now created by the Court and,

secondly, the approach adopted by the Court of

Criminal Appeal that proportionality in some way

finds its way back into the doctrine of

provocation, almost as a principle of law, not

merely as a matter for the jury to consider as part

of the "ordinary man" test which was the way the

law was developing for a long time certainly prior

to Stingel.

It may be that Stingel was intended to reverse the line of common law authority emerging through

Moffa, Johnson, many other cases that have evolved

over the time. We do not know what the Court had

in mind precisely in relation to that aspect of the

case but that is not an aspect that is developed in

Stingel. If this judgment is applied in the future, in our respectful submission, then a very

narrow view is going to be taken of both the

"ordinary man" test, proportionality, to the extent

that judges will be encouraged to take this issue

of provocation from juries in circumstances where

there really is a proper basis for leaving the

issue for the jury's consideration.

Those are our submissions, if the Court

pleases. Could I correct one word in our

supplementary submissions. It is an unfortunate

typographical error. Paragraph 2, the last line of
the supplementary submissions, reads: "That
conclusion, though challenged below, is not now

challenged.", that should read, "That decision,

though challenged below, is not now challenged." If

the Court pleases.

MASON CJ: Yes. Mr Bongiorno.

MR BONGIORNO:  If the Court pleases, the argument of Crown

starts at page 209 of the application book.	I have
had that argument recast with appropriate page
references.	They were not incorrect, they were

page references before the application book was put

Masciantonio 10/6/94

together. I have copies for the Court with the

correct and now up to date page references. I

think little of it will be of relevance to the

submissions I am about to make, in any event,

Your Honours, in the light of what has happened.

Your Honours, the Crown's contention is that

the court did not, as my learned friend suggests,

depersonalize the accused in any way and, indeed,

if I can take the Court to page 140 of the

application book, this is before the court dealt

with the short version at 145. At page 140 the

court makes it clear that it is not depersonalizing

the accused at all. In the middle of the page:

The evidence most favourable to the

applicant bearing on provocation may be

summarized as follows.

It then goes on for that page and on to the next

page and then reverts into direct speech from the

transcript at pages 141 down to 144 in describing

the events as they emerged in the evidence.	When,
at 145, the court make the statement which my

learned friend relies upon, at the bottom of

page 145, that statement must be read in light of

the passage which has appeared from 140 onwards.

I venture to suggest that it can be

interpreted by adopting the proposition that what

they are saying there is what the facts were

immediately prior - the provocational facts, as it

were, denuded of the background circumstances which

they had already dealt with. So that it is just

not correct, in our submission, to say that the

court has dealt with this case by committing some

error of principle at all. The whole of 140 and

following sets out the context which, from the

applicant's point of view, the provocation emerged. So far as the applicant's state of mind at the

time of the provocation is concerned, there is a

passage in Mr Justice Ormiston's judgment at

page 181 as to the question of loss of control

which is also relevant. Page 181 line 20,

His Honour having described the applicant's

interviews goes on to say at line 20:

It is from that version that one gets an

impression that the applicant may have lost

control rather than sought deliberately to

defend himself and that loss of control

appears to have followed immediately upon the

somewhat modest attack made upon him. After

cross-examination the trial judge asked him

about this aspect of the interview and he said

that he could not describe the feeling he felt

Masciantonio 10 10/6/94

but it was a mixture which again he could not describe except to say that: "It was sadness, pain, you know, when you get a really big

fright and you get this ... feeling, a

sensation like that, a feeling like that I

had.". Later he said the he felt angry and

then the judge put to him his answer in the
final interview set out at the end of the last

paragraph, to which the applicant responded:

"Yes, I refer to what I was talking to you

about before, it was just a combination of

anger, fear, pain." He was asked what he had

earlier meant by saying that he was "very,

very angry", but he replied by saying that he

was "not angry; nervous, that's what I meant."

He then reiterated that he was very nervous,

modified in the next answer to "a little bit

nervous" but he nevertheless took the knife

"because I intended scaring Maurizio".

Now, in the Crown submission, the Court of

Criminal Appeal correctly applied the propositions
of law derived from Stingel and did not, as the

applicant suggests, depersonalize his situation.

GAUDRON J:  The problem seems to me, Mr Bongiorno, to be

that this case is not truly comparable with

Stingel. In Stingel the accused almost brought the

situation upon himself. He intruded into a private

situation and there was no relationship, as it

were, between the accused and the deceased but the
accused and the deceased's girlfriend in

Stingel, if it were in any relevant sense a relationship. But here you do have a relationship.

Here the accused was not in that same sense the author of the trouble that occurred in the same

way.

MR BONGIORNO: That is so, Your Honour, but that is the

reason that I pointed to the passage on 140, that

the court appreciated that and - - -

GAUDRON J:  I know they listed the accounts, but then to

make the comparison with Stingel as baldly as is

made does seem to suggest that they did not.

MR BONGIORNO: At page 146 they set out the facts of Stingel

in a way which, in our submission, suggests that

the court was fully aware of the differing facts in

each case. Then at 147 they continue with their

comparison of Stingel and the facts of this case in

a way which, in our submission, is unexceptionable.

They say:

In Stingel the words spoken ..... were more

violent in essence than those attributed to

the deceased here.

Masciantonio 11 10/6/94

Obviously, I suppose, it is trite, the proposition,

that whenever two cases of complex factual

situations are being compared there are going to be
differences, but the principle that the court has

to apply is to acknowledge, recognize and take

account of those differences. In our submission,

that is what it has done here. It has not done

anything which would suggest that it was not aware
of it.

As my learned junior reminds me and points out, at page 177 it is clear that the court is

fully aware of the facts. I suppose the parallel

with Stingel as derived from 177 is that the

applicant deliberately sought out the deceased, of

course for a different purpose to that in Stingel,

and the relationship was different, the ages were

different, and, as Your Honour points out, there

were a lot of differences. But there were

sufficient similarities also, in our submission,

but more importantly, the court recognized the

differences and made allowances for them.

I do not think there is anything further that

I can put to the Court.

MASON CJ: What about proportionality?

MR BONGIORNO:  Your Honour, in our submission the Court of

Criminal Appeal has made no error of principle

there in the way in which it has dealt with this

aspect of the matter. If I can take the Court to -

I am having difficulty finding the passage,

Your Honour - - -

GAUDRON J: In the judgment of Mr Justice Ormiston.

MASON CJ: Yes, pages 183 to 184. If you look at the bottom

of 183a, His Honour says:

The need for proportionality has been

criticized from time to time but the decisions

of the High Court in Johnson's case and

Stingel's case make it clear that, in

determining an ordinary person's reaction -

et cetera - - -

MR BONGIORNO:  In our submission there is nothing

exceptionable as to what Mr Justice Ormiston is saying there in so far as he is saying that the

reaction of the ordinary man involves within it the

concept of a response proportional to the

provocation. As His Honour says:

it is necessary to decide whether that conduct

was sufficiently provocative to lead, not only

Masciantonio 12 10/6/94

to retaliation, but to retaliation which has

resulted in the death of the victim.

DAWSON J: That is really just saying would an ordinary

person have been provoked to do what the accused

did in this situation.

MR BONGIORNO:  Yes, in these circumstances.

MASON CJ: Which seems to be what Stingel contemplated but,

of course, Stingel was a decision given on a

particular statutory provision.

MR BONGIORNO:  But I think the Full Court has accepted, and

indeed it has not been argued by the applicant,

that the common law test as must be applied in

Victoria is different to Stingel in any event, so

that there is no issue raised for consideration by

this Court at this time as to that matter by the

applicant here. In our submission, the decision of

the Court of Criminal Appeal is unassailable both

in principle and as to the way that principle was

applied. If the Court pleases.

MASON CJ: Thank you, Mr Bongiorno. Yes, Mr Weinberg.

MR WEINBERG: If the Court pleases, on the question of

proportionality, Your Honours did refer to the

particular passage at, I think, page - I am sorry,

I have lost the page.

MASON CJ:  The passage I referred to was at 183a, 184.

MR WEINBERG: Yes, Your Honour. There is a narrower passage

on proportionality in Mr Justice Ormiston's

judgment at page 186 where His Honour said, at

line 20:

Although it is highly likely that the applicant lost his self-control at the time of

the attack, his response far exceeded that

which might have been proportionate to any -

it is interesting to note that His Honour

characterizes the totality of the provocation as an

"insult" -

In other words, although the deceased's

conduct was capable of provoking an ordinary

person such as the applicant to some

retaliation, it was not, in my opinion,

capable of provoking such a person to

retaliation to the degree and method and

continuance of violence exhibited by the

applicant's savage knife attack which resulted

in the death of his son-in-law.

Masciantonio 13 10/6/94

And it was that passage, Your Honours, that we

submitted involved a misreading of the words
"degree, method and continuance" because, in our

submission, what those words contemplate is not the

number of stab wounds or the extent of the frenzy

but the question of, as to degree, did it

constitute sufficient to form an intent to cause at

least serious bodily harm; method, perhaps the use

of a lethal implement; continuance, was there a gap

or a pause and time to reflect, followed by a

continuation. It is certainly never intended to say that if you engage in a frenzied attack of a

kind that involved the infliction of a dozen stab

wounds, where one blow with a rock with intent to

kill might have been sufficient, that that means

taking provocation away from the jury. That was

what we meant when we attacked that aspect of

proportionality.

My friend relies on a passage at page 140 as

saying that the majority judgment did take into account the question of the relationship on the

issue of provocation. We drew the Court's

attention to the passage at page 140 in our

submissions ourselves at the bottom of paragraph 4
because what we say about that is what the court is

there doing is looking at the evidence in its most

favourable light on the first limb of Stingel. It

is looking at it from the point of view of the

gravity of the provocation to this applicant

himself in determining whether he was provoked.

But when one comes to compare this case with

Stingel itself, which it did on the basis of the

"ordinary man" test, what the court did was to

compare the bare bones of the actual assault,

forget about the earlier matters that were relevant

to actual loss of self-provocation, and compare

only the "Piss off", the kick at and the push, as

though it were a stranger. That is what the court

did in the clearest possible terms when it

balanced, on the one hand, the facts in this case

with the facts against Stingel.	The two cases bear
no proper analogy - - -

DAWSON J: Except that what Stingel does say, in relation to

provocation, is that a level of self-control is

required by the law which is measured by reference

to the ordinary man.

MR WEINBERG:  Yes, Your Honour, it does say that. And it

says that one cannot have regard to personal

characteristics or attributes, save age, but it

does not say that it is not - - -

DAWSON J: And it is possible to say that even taking the

background into account, no ordinary man,

exercising ordinary powers of self-control, would

Masciantonio 14 10/6/94

react in this way to what was a fairly minor set of

incidents.

MR WEINBERG:  It is possible to say that, Your Honour; but

it is also possible to say that an ordinary man

might have reacted in that way, and that is the

test.

DAWSON J:	I doubt it, do you not?
MR WEINBERG:	Mr Justice O'Bryan had not the slightest - - -

DAWSON J: Forget the background, all that happens was a

minor physical attack, plus the use of some words.

MR WEINBERG: That is all that happened at the scene,

Your Honour, but -

DAWSON J: That is all that happened, no matter what the

background. Why is that sufficient to provoke a

man to react in such a way as to commit homicide.

MR WEINBERG:  Your Honour, it very much depends upon the

history of the relationship between the parties.

DAWSON J:	I am saying whatever the history was.
MR WEINBERG:	No, Your Honour, in our submission if one

injects the totality of the background, the

relationship, this was after all a father-in-law,

son-in-law whose daughter and grandchildren, on his

understanding and perception, had over a long period of

time been grossly mistreated. He goes to -

DAWSON J: But that is something had been going on a long

time. It was not that the -

MR WEINBERG:  But the act of pushing, the act of kicking at,

the "Piss off", all of that takes place against

that background, Your Honour. It cannot be
equated.	Of course the answer would be no, no

ordinary man might have reacted in the way this man

did if one isolates those factors. Your Honour

would be absolutely justified in making that

comment. But in our respectful submission, the

real nub of the provocation in this case was those

acts in the light of the history of the

relationship. Just as the High Court sensibly

recognised in Parker's case, that one has to look

at the whole of the circumstances - - -

DAWSON J:  No one is denying that. What I am putting to you

is, even so, the Full Court were justified in

coming to the conclusion - - -

MR WEINBERG:  No, Your Honour, in our respectful submission

the Full Court were not justified in coming to that

Masciantonio 15 10/6/94

conclusion. In our respectful submission the trial

judge, who was a very experienced judge and who saw

this evidence and heard these witnesses and

great respect, renowned for leaving spurious

evaluated the case, had a great advantage over the with

defences to juries. His Honour the trial judge in

this case came to the view that it was clearly

necessary to leave provocation. His Honour, in our

submission, was clearly correct, unless the

approach adopted by the Court of Criminal Appeal to

Stingel's case is the correct approach. And we say

if that is the case, then the law of provocation

has been significantly eroded and set back.	If the
Court pleases.

MASON CJ:  The Court will take a short adjournment to

consider the course it will take in this matter.

AT 11.28 AM SHORT ADJOURNMENT

UPON RESUMING AT 11.32 AM:

MASON CJ: There will be a grant of special leave to appeal

in this case.

MR WEINBERG: If the Court pleases.

AT 11.33 AM THE MATTER WAS ADJOURNED SINE DIE

Masciantonio 16 10/6/94