Masciantonio v The Queen

This matter concerned an application for special leave to appeal to the High Court of Australia by Giovanni Masciantonio against a decision of the Court of Criminal Appeal. The dispute arose from a trial where the trial judge had left the defence of provocation to the jury, but the Court of Criminal Appeal found that the judge had effectively withdrawn this defence through misdirections. However, the Court of Appeal also concluded that provocation should not have been left to the jury at all.

The central legal issue before the High Court was whether the Court of Criminal Appeal had correctly applied the principles laid down in *Stingel* when assessing the evidence of provocation. Specifically, the applicant argued that the Court of Appeal had misunderstood and misapplied *Stingel* by creating an "ordinary stranger test" rather than an "ordinary man" test. This, it was contended, involved the Court of Appeal depersonalising the applicant and failing to consider all relevant aspects of his history and relationship with the deceased when determining if an ordinary person in his position might have acted as he did.

The applicant's counsel submitted that the Court of Criminal Appeal erred by focusing narrowly on the words "Piss off" and a minor physical push as the entirety of the alleged provocation, disregarding the broader context of the applicant's relationship with the deceased and the deceased's relationship with the applicant's daughter. The applicant argued that the Court of Appeal, in assessing the evidence at its highest for the applicant, had incorrectly concluded that these elements alone were insufficient to constitute provocation, thereby failing to properly apply the objective test of provocation as established in *Stingel*.