Stingel v The Queen

[1990] HCATrans 168

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IN THE HIGH COURT OF AUSTRALIA

Office of the Registry

Hobart No Hl of 1990

B e t w e e n -

MICHAEL JAMES STINGEL

Applicant

and

THE QUEEN

Respondent

Application for special leave

to appeal

MASON CJ
BRENNAN J
DEANE J
DAWSON J
TOOHEY J
GAUDRON J

McHUGH J

Stingel(2) 91 8/8/90

TRANSCRIPT OF PROCEEDINGS

AT CANBERRA ON WEDNESDAY, 8 AUGUST 1990, AT 9.50 AM

(Continued from 7/8/90)

Copyright in the High Court of Australia

MASON CJ: Yes, Mr Bugg.

MR BUGG:  Thank you, Your Honour. Your Honours, yesterday I

had embarked upon a brief consideration of the

speech of Lord Diplock in Ca.mplin and it is my
intention to perhaps conclude my reference to that

speech today to give an indication as to why I said

yesterday that a strict interpretation of what

Lord Diplock said in his speech is not inconsistent

with the test which we say has been applied in

Tasmania.

I refer Your Honours to page 717 of the

report, (1978) AC.	At the foot of page 716,
Lord Diplock says:

As I have already point out, for the

purposes of the law of provocation the

"reasonable man" has never been confined to

the adult male -

and he then, in the next two sentences at the top of page 717 commences to consider some aspects of the ordinary person which we say give an indication

of the restrictions or the limits that he was then

posing on the characteristics to be attributed to

an ordinary person. He then, half-way down the

page with the sentence commencing with the words

"To taunt a person" concludes what we say is his

examination of this aspect of the matter before at

page 718 going on to give what he suggests is an

appropriate direction.

The interpretation of what is contained there has, on occasion, resulted in there being, perhaps,

a loose application of what, in my submission,

Lord Diplock had in mind because if you look at the

top of page 717 he confines the characteristics to
being those which do not, in my submission,

interfere with the power of self-control as

everyone is entitled to expect that his fellow

citizen will exercise in society as it is today.

And then, half-way down the page: 

To taunt a person because of his race, his physical infirmities or some shameful incident in his past may well be considered by the jury to be more offensive to the person addressed,

however equable his temperament, if the facts

on which the taunt is founded are true than it

would be if they were not.

And he then goes on to make reference to Bedder.

Our submission is that courts have, in considering

that speech, confined themselves to exceptional

excitability and pugnacity in the characteristics

which might be termed unusual which should not be

Stingel(2) 92 8/8/90

attributed to the ordinary person. His exclusion of those two extraordinary characteristics at the

top of page 717 to some courts who interpreted this

speech seem to have resulted in them saying that that is all that His Lordship was excluding from the characteristics to be attributed, that is

excitability and pugnacity. And that has resulted

in there being, perhaps, a broader approach to the

unusual characteristics which could be incorporated

into the "ordinary person" test.

DAWSON J: His Lordship admits it but it is a very basic

lack of logic in what he is proposing there and the

moment you slip into taking the age into account,

you take into account something which is not a

characteristic of the ordinary man and you have

abandoned the test, in effect, and either you mean

a reasonable person of the accused's

characteristics or you do not. You cannot select

some and reject others with any logic and he says

you cannot but that is not very satisfactory, is

it?

MR BUGG: Well, in my submission, yes it is, with respect,

Your Honour.

DAWSON J: Well, what characteristics do you select and what

do you reject? How do you test it?

MR BUGG:  If you are dealing with an 18-year-old, you ask

yourself the question, "What would the ordinary

18-year-old have done in this person's situation?".

DAWSON J: Yes, and if you are dealing with an 18-year-old

with a limited mental capacity, you ask what would

an ordinary 18-year-old with limited mental

capacity do in this situation? And, if you are
dealing with an ordinary 18-year-old who is black

with limited mental capacity, you put that in too.

MR BUGG:  It would depend, Your Honour, on the relevance of

those matters.

DAWSON J: Well, how do you decide the relevance?
MR BUGG:	You look at all the circumstances and see what the

insult is or the wrongful act is that is attributed

to the deceased person or the person responsible

for it and determine whether or not it is aimed or

directed towards one of those characteristics.

DAWSON J: But you see, that then is not arriving at a

reasonable measure of self-control to be expected

of the ordinary citizen.

Stingel(2) 93 8/8/90

MR BUGG:  No, but it gives to the ordinary citizen a

perception or appreciation of the sting in the

insult or wrongful act.

DAWSON J: Well, I appreciate why you do it, but the fact is

at the end of the day you are not posing an

objective test at all and part of the difficulty

came, it seems to me, by transposing for the

reasonable man the ordinary man because there is no

such thing and then you start attributing

characteristics to him and you get right away from

what was really intended which was, that there is a

reasonable degree of self-control which is

expected of anyone, irrespective of their personal

characteristics.

MR BUGG:  Yes.

DAWSON J: Just as we expect reasonable behaviour, on the

part of a reasonable man, in other parts of the

law, and we leave it to the jury to decide what it

is. Maybe if you analyse it out, a difficult task,

but we do not have any difficulty about leaving it

to the jury.

MR BUGG: Well, Your Honour, perhaps if I could just

consider that aspect of it with you, the moment you
say "the reasonable man" you make him instead the

reasonable woman, where you are dealing with a

person who is female who is being charged with a

crime and you are then considering it, because do

you say, "Do you take - -

DAWSON J: That is the thing we do not do, we do not go

through those processes, we say there are standards

of conduct which the community expects,

objectively, and that is what you apply. Now, all

of this process is watering down those standards

until you get at the end to a completely subjective

test.

MR BUGG: Well, it is a point the Crown makes in this

appeal, in responding to the proposition that is

put by the appellant, that that is really what is

the end result of the argument that is posed in

this Court by the applicant or the appellant.

DAWSON J: But does not the phraseology of the particular

section of the Code suggest the other end of the

spectrum as Mr Justice McHugh pointed out to you.

When you look at the nature of the act and ask

yourself whether that would cause - deprive an

ordinary man of self-control, that suggests a

completely objective test?

Stingel(2) 94 8/8/90

MR BUGG:  It does, and that is the very debate that

His Honour Mr Justice Nettlefold embarked upon in

his judgment in Jeffrey's case.

DAWSON J: But you do not suggest that that is so?

MR BUGG: Well, as I said before the Court of Criminal

Appeal, tempting though it may be from the Crown's

point of view to argue that proposition, I am faced

with the logical counter to that and that is that

if you say, we just take a reasonable man and do
not give him any association at all with the
incident that is occurring, the husband ceases to

be a husband for the purposes of the insult or

sting that confronts - - -

DAWSON J: It does not mean that, "reasonable man" means a

man possessed of reasonable, that is to say, ordinary powers of self-control, if you like

average.

MR BUGG:  Yes.

DAWSON J: Otherwise it has no meaning.

MR BUGG:  I understand that, Your Honour, but then you say,

"What would the reasonable man do in this

situation?". If he was not married to the woman

who is in bed with her adulterous partner it would

mean nothing to him, it might provide some moment

of curiosity. But if he is then married to the

woman who is in bed with the adulterous partner and

he comes upon it in the sudden and without any

prior notice then of course, obviously, it makes

quite a difference to him.

DAWSON J: Well, it does not necessarily. You say,"Well

this man behaved in this manner because of these

characteristics, but the "reasonable man" would not

having regard to the natur~ of the act.	If you
like, say average man.

MR BUGG:  No, the Crown does not say he behaved in this way

because of these characteristics. If those

characteristics are posed as an explanation for why

he behaved, you ask would the ordinary person or a
reasonable man, in a like situation, have behaved

in that way, that is, lost his self-control to the

extent that he responded as the accused did. It

has been talked of in a number of cases as a flood-

gates situation, the moment you open the gate a

fraction to allow any change in identity to the

ordinary person you invite an onrush of other

characteristics and identity changes.

Stingel(2) 8/8/90

DAWSON J:  That must be so. Once you permit one subjective

characteristic then there is no logical reason why

you should not permit all.

MR BUGG:  Well, there is, with respect, Your Honour,

because the moment you do that you do not have any

objective test at all.

DAWSON J: That is right.

MR BUGG:  But the objective test is there not to put a

reasonable man there, but to examine the reasonable
man's power of self-control, or the ordinary

person's power of self-control. It is his power of

self-control in a given situation that he is there

for, and that, by the test we pose, remains

unaltered. It does not go through this artificial

exercise of closing him up and then disrobing him

for the purposes of the objective test. The

ordinary person's power of self- control, as posed

by Lord Diplock at the top of page 717, is why he

is there.

DAWSON J:	Well, what is the test you pose for selecting certain characteristics and rejecting others?
MR BUGG:	Well, any characteristic that would make that

person other than what he is that is extraordinary,

you would exclude it. However, if it was the butt

of the insult, in other words, "You're a madman or

a lunatic", and the person happens to suffer some

mental deficiency which leaves him with the

obsessive perception that he is a lunatic or mad,

then you must pose the question that I mentioned

yesterday, and that is, "Would an ordinary person

who had some affliction about which he felt

strongly respond in that way to that insult or

affront?", but you do not say, "Would the ordinary

lunatic respond in that way?".

DAWSON J:  No, because that is not what you are looking

for. If I may use the vernacular, what you are

looking for is - what you are attempting to exclude

is a person with an abnormally short fuse, and you

say that most people have a certain degree of

tolerance and that is what you expect and whether
the short fuse is due to illness or racial

characteristics, or whatever it is, you exclude

those people.

MR BUGG:  Yes.

DAWSON J: That means you are looking for a norm, and the

norm is not posed by having regard to abnormal

characteristics.

Stingel(2) 96 8/8/90

MR BUGG:  No, I accept that. But by the same token if there

is an abnormal characteristic, if you have an

abnormal physical characteristic, if a person has a

hunched back, perhaps not that abnormal, but some

bizarre physical deformity that is abnormal, why

should you not, if that becomes the butt of some

insulting and offensive conduct by a group of

youths, give the same situation to a person who has

something that is not so physically apparent which

also becomes the butt?

DAWSON J:  We are going over the same ground. Of course it

is illogical.	I mean, it may be abnormal to be a
Turk.	It may be abnormal in a given community to

be a number of things. But what one normally does

in this situation is to throw it to the jury and

leave it to set community standards.As ..... as

someone was pointing out - what constitutes

indecency? What constitutes reasonable behaviour

in other respects? But the moment you start to try

and analyse it out into some logical form you

cannot do it. And should you attempt to analyse

it?

MR BUGG: Well, Your Honour - it is a book which is not in

the list of authorities - perhaps if I could just

canvass with you what was said by the

Royal Commission on Capital Punishment in its

report in 1953 which, of course, was the basis for

the Homicide Act in the UK in 1957. I have the

library copy from my office here and I will make it

available for photocopying, Your Honours. There

are some quite relevant passages in it, but I am

referring to page 55 of that report which was

published in September 1953. And there is this

passage at the top of page 155 discussing a number

of submissions made to the commissioners, one of

them being from Lord Justice Denning:

These witnesses thought it beyond doubt that

words might constitute provocation as gross as

blows even to a reasonable man and considered

that the right course was to leave it to the

jury to decide whether in any particular case

the provocation was sufficient to reduce the

crime to manslaughter.

And then in brackets:

(If the test of the reasonable man were no
longer applied, the scope of such provocation

would be considerably enlarged since there are

many people whose race, temperament or mental

condition may render them especially

susceptible to insult and affront.)

Stingel(2) 97 8/8/90

That obviously was the intention of the

commissioners when they made their report. To some

extent that intention, I believe, is mirrored in

Lord Diplock's speech in Camplin. However, it has

become a little bit blurred as it has journeyed

across the seas, in particular in Victoria and

South Australia.

But in Tasmania we have a Code, and that Code

says something quite different to that - that you

do not throw it to the jury and say, "You work out

what the standards for the community are." The

overriding standard is given to the courts as a

responsibility in our State to assess and maintain.

And that really is the difference, and I can understand Your Honours' position coming from a

common law jurisdiction in this area and I do not

say that at all patronizingly, but we have the

difficulty with section 160 in our Code where there

has to be some consideration of this issue by the

judge. If there is that consideration, then who is

the ordinary person and how does that ordinary

person feel the sting of that affront or insult?

That is really why we say that is an appropriate

test.

If you are looking at what has happened

elsewhere, certainly I accept what you say, that

arguably Camplin should not have been applied.

Arguably, I suppose, Moffa should have been a

reasonable person who should have stood back in a

cold and dispassionate way and said, "Some nude

photos of my wife, so what, a slur as to my sexual

prowess, but the telephone was the last straw." It

is a difficult problem. It is a problem - - -

DAWSON J:  I am not denying that. That is what I am saying:

that there is a logical tension between the two

approaches. They are irreconcilable really, and any attempt to reconcile them just results in an
admission of defeat so far ~s logic is concerned,

as Lord Diplock's speech says.

DEANE J:  Why do you not simply attribute to the accused the

powers of self-control of an ordinary person?

MR BUGG:  Because that, in itself is an exercise in mental

gymnastics that would be very hard for a jury to

undertake. How do you direct a jury that we give

the accused the powers of self-control of an

ordinary person when we know he has not, if he has

so far lost control to some minor provocative

insult that he has bludgeoned someone to death?

DEANE J:  It is the same thing as putting an ordinary person

in the position of the accused.

Stingel(2) 98 8/8/90

MR BUGG:  No, it is not, with respect, Your Honour, because

the moment you say, "Let us make the accused an
ordinary person", in that we give him the powers of

self-control of an ordinary person - - -

DEANE J: But the first question in 162 is the objective

question: that is, is this alleged matter capable of constituting provocation if the conditions are

fulfilled?

MR BUGG:  Yes,

DEANE J: Well now, I cannot see any problem in saying,

"Well, you take the accused, with his background

and everything else, and you attribute to him the

powers of self-control of an ordinary person."

MR BUGG:  That exercise is probably another way of

explaining to the jury the exercise they must

fulfill. But in Tasmania when the Code was enacted

it adopted the common law as it then existed, with

some modifications in so far as the range of

insulting or provocative conduct was concerned.	If
you go back to the cases from which you obtain the

origins of the reasonable person, or reasonable man

in this provocation test, you have got to go to

Welsh's case, where Justice Keating first

propounded some yardstick of measurement, and that

is the reasonable man.

Now, he did not say, "Do you think the accused

was acting reasonably?" What he asked was, "What
would a reasonable man have done in those

circumstances?" Now, I suppose, it is perhaps not

a very comfortable answer to give to Your Honour to say, "Well, they have been doing it since 1873, let

us continue to do it". The situation really is

that it is a difficult exercise to go through

because the criticism has been made in the past

that if reasonable men do not behave unreasonably,

reasonable men are supposed to conduct themselves

rationally.

The violent response to a verbal insult,

resulting in someone's death, would appear to most

people to be an irrational and unnecessary and an

over-violent response. However, you have got to

examine that response in some sort of background or

setting. The moment you try and clothe - - -

DEANE J: But, unless you attribute it to the accused, you

must end up in the impossible problems that

Mr Justice Dawson has referred to. I mean, take

this case: does your test exclude the fact that the

accused was infatuated with the girl?

MR BUGG:  Yes, it does.

Stingel(2) 99 8/8/90

DEANE J: Well, why should it? I mean, the accused is known

to be infatuated with the girl.

MR BUGG: Certainly, but what aspect of the insult was

directed at that infatuation?

DEANE J:. Assume that the insult was directed at his known

infatuation.

MR BUGG:  If the insult was directed at his known

infatuation, then it would have to be a factor that

would be taken into account but it would depend

upon the circumstances of the case.

DEANE J: So, you would allow that the ordinary person would

encompass an ordinary person infatuated with the

girl?

MR BUGG:  No, you would allow the ordinary person, in saying

to the jury, "Could an ordinary person who had some

strength of feeling towards a person or thing,

inanimate, and that strength of feeling was the

subject of some vulgar abuse - - -".

DEANE J: But, what, do you say to the jury, "An ordinary

person cannot be infatuated with somebody of the

other sex"?

MR BUGG:  In the circumstances of this case, we would say,

yes.

DEANE J: They would laugh at you. I mean, I do not know

where it goes, but the obvious fact was that the

accused was completely infatuated with the girl and

one's own experience tells one that that is not an

unknown thing among ordinary people of this age.

MR BUGG: Well, I am sorry, with respect, Your Honour, I do

not take it that far. To say that this person, who

conducted himself in the way in which the

undisputed facts disclose, -is the response of an

ordinary person.

DEANE J:	I was not suggesting that for one moment.
MR BUGG:	I am sorry, I thought Your Honour said that we

know that ordinary people become infatuated in this

way.

DEANE J:	I said that.
MR BUGG:	Yes.
DEANE J:	I did not say "in this way" though, in the sense

of doing what this accused did.

Stingel(2) 100 8/8/90

MR BUGG: Well, in those circumstances, that is, given the

history of this relationship and the circumstances

prevailing on that night, the depth of feeling

claimed by the appellant was not a relevant factor

in relation to the insult in the same way that in Ly's case in Canada the Vietnamese nationality of

the appellant was not a relevant factor.

DEANE J:  What if the accused had been the girl's father in

this case? Could one take account of his affection

and protective interest in the girl?

MR BUGG:  Given a knowledge of this girl's prior conduct?

DEANE J: Yes.

MR BUGG:  No, because you would then lose the suddenness

aspect that the Court of Criminal Appeal in New

South Wales considered in Tsigos' case.

DEANE J: So, on your submission, if the accused had been

the girl's father and the precise events had

happened in the car park, the judge should have

taken provocation away from the jury?

MR BUGG:	Yes, because
DEANE J:	I follow the way you put it, yes.
MR BUGG:	And that is an aspect that I canvassed with the

Court yesterday, the question of suddenness because

it was not something that was unknown to the

appellant, that this happened the Saturday night.

DEANE J: I do not want to take time, but you are moving now

from the objective question to the conditions.	I
was only directing my query towards the question

for the judge that subsection (3) defines, that is:

whether any matter alleged is, or is not,

capable of constituting provocation.

MR BUGG: 

Yes, but in determining what the responses of the

ordinary person would be you have to put the
ordinary person's perception, you have to give the
background and the circumstances. It is the
ordinary person in the situation of the accused.

Now, if it was the father and he knew of the prior

sexual conduct of this girl - - -

DEANE J: 

And who comes to the car to stop what is happening

and is addressed in these very words?

MR BUGG:	Comes to the car to stop what was happening?
DEANE J:	Yes, and is addressed in these very words?

Stingel(2) 101 8/8/90

MR BUGG:	I am sorry - well, the circumstances that transpired in this case are that the appellant, on
the view of the facts most favourable to him, was not going to the car to stop anything; he was
going to the car to talk to the deceased, not
knowing the girl was in the car.
DEANE J:	Right, then let us say that.
MR BUGG:	Right.
DEANE J:	The father is there and is addressed in these

words by the male having sexual relations with his

daughter. You say that on your approach to the law

you cannot take account of the protective

affection of the father?

MR BUGG: 

Given that set of circumstances, if the affront

to the father is an affront to his position as a
father, then yes, obviously it is a matter that

would have to be taken into account.

BRENNAN J: 

Mr Bugg, do I understand you correctly to be

saying that the characteristics that one can take

into account are the same characteristics relevant

to both the nature of the insult and the response,

and that one does not distinguish between the

characteristics which are relevant to both of those

aspects?

MR BUGG:  No. The nature of the insult is that by which

the extent of the response is gauged, that is could
an ordinary person, confronted with this insult,

respond in this way, because the moment you start

talking about response mechanisms you start delving

into another area altogether and that is not - it

is the ordinary person's power of self-control and

that person's power of self-control confronted with

certain provocative stimuli.

BRENNAN J:

But in determining what the extent of the

stimulus is there is a limit to the characteristics

that one takes into account, is that the

proposition?

MR BUGG:	Yes.
BRENNAN J:	So that we constrain the accused into

ordinariness in determining the nature of the

insult and we then treat the insult so ascertained

by reference to some objective standard of

response?

MR BUGG:	No, you do not constrain him into ordinariness for the purposes of the nature of the insult. That
is why, for the nature of the insult, you consider
what we have called characteristics. You do not

Stingel(2) 102 8/8/90

confine him into ordinariness. You say, "Would an
ordinary person, in this situation", that is being

55, married with three retarded children who is the

subject of some slur, "could he respond in that

way?". So you do not confine him to ordinariness

when considering the nature of the insult.

You give him - you do not give him, he has got

it - the ordinary person's power of self-control

for the purposes of assessing his response because

that is the objective test. The accused, in the

subjective test, is left in tact, but you are not

talking about the accused when you are dealing with

the objective test.

BRENNAN J:  Well, I must confess I have not followed what

characteristics one takes into account and what one

leaves out in determining the nature of the insult.

MR BUGG:  Well that, Your Honour, is the difficulty in

attempting to say, "Well, you leave this

characteristic in, and do not do that; it depends

on whether it is this level of insult; or you do

that". You examine each case on its merits, but

what you do not do is try and establish by

exclusion characteristics that will never be
considered, extraordinary excitability or
pugnacity, and try and categorize those,
exhaustively categorize them, because then you get
into difficulties, but if you say, "The ordinary
person is there to measure the power of self-
control of an ordinary person to understand the

nature of the insult to the ordinary person", the

environment in which that insult is given has to

have so~e colour to it, and that is gauged by what

the insult is.

If it is an insult about the Collingwood

Football Club you do not say, "Well, this man's an

African and we'll take that into account". In

fact, probably the fact that he is an African would

mean that an insult about the Collingwood Football

Club would not mean too much to him, but you

would probably want to make him someone who lives in Melbourne who has followed Collingwood for the

last 30 years unsuccessfully and give him those
characteristics but do not clothe him with all the

accused's characteristics because half of them may

be totally irrelevant to the insult. The fact

that he is 6 foot 4 may have nothing to do with

an

MASON CJ:  But you clothe him with all the characteristics

and the history and circumstances of the accused

that are relevant to gauging the nature and gravity

of the insult?

Stingel(2) 103 8/8/90

MR BUGG:	That is right.
MASON CJ:	You do?
MR BUGG:	Yes.

MASON CJ: In those circumstances, in this particular case,

you would look to all the details of the history of

the accused in relation to the deceased and in

relation to the girl?

MR BUGG:  Yes, and His Honour did that.

GAUDRON J: But it is not entirely clear that in

characterizing the insult merely as abusive

language, if you like, that he did take those

matters into account, is it? I mean, it may have

been but the question is, all those matters having

been taken into account, can you characterize the

nature of the insult as simply a statement that

your presence is not welcome albeit in colourful

language?

MR BUGG:	Yes.
GAUDRON J:	Is it only capable of being so characterized?
MR BUGG:	Yes, and I come back to Hansford's case to which I

referred Your Honour yesterday afternoon.	I
started with Ly and added Hansford - - -

GAUDRON J: But that seems to say something different from

what you have put in submissions just a moment ago.

MR BUGG:  No, because you ask what the reasonable person

would perceive in those circumstances the insult to

be. You see, in Hansford's case he claimed mistaken facts but on those mistaken facts

sufficient evidence to ground provocation but would

the ordinary person, in those circumstances,

perceive - and you are talking about an ordinary

person's power of self-control - that to be the

insult.

GAUDRON J: That seems to be a later questions, does it not,

Mr Bugg, where you have excluded excitability and

so forth, merely the question is, "What did that

mean? What meaning could be taken from those acts

and statements?".

MR BUGG:  Go away, leave us alone.

GAUDRON J: Yes, that could be, but you have to say, do you

not, that the meaning could not be taken, for

example, "Look here, see how lacking in appeal you

are to this particular lady who was the object of

Stingel(2) 104 8/8/90

your affection. See how much she despises you.",

that meaning cannot be taken from it?

MR BUGG:  No, it cannot.

GAUDRON J: That is the only question in this case, is it

not?

MR BUGG:  I would have said not, Your Honour. The situation

that what was occurring in that car and when the

door was opened and the response has got to be

considered reasonably not fancifully and, in other

words, some bizarre interpretation placed upon it

because that, in my submission, would not be the

perception of it of an ordinary person. That is

why Hansford's case has some relevance. In other

words, would, in those circumstances, the ordinary

person perceive that response to be insulting? And

that is why I come back to Hansford's case.

GAUDRON J: Yes, I follow.

BRENNAN J:  So far as Hansford's case is concerned,

section 14 would have something to say to it, would

it not? The mistake has to be both honest and

reasonable. We should not get ourselves involved

in too much concerns about "mistake" and

determining what is the substance of the

section 160 provision, should we?

MR BUGG:  I would submit, yes, Your Honour, in the sense

that obviously what is the ordinary person there

for. The ordinary person is there for the very

reason that Hansford's case puts him there, to
reasonably assess the provocation. And, of course,
another factor that I suppose may add sting to the

insult, and it may remove the sting from the
insult, if the ordinary person would perceive it to

have been an unwitting slur or criticism and that

is a factor, I would submit, that is entirely

appropriate to be taken into- account because

someone cannot say, "Well, I took it as a slur.",

when quite clearly it was unintended as such and

from the way in which it was given was unintended

but in the circumstances in which this

occurred - - -

GAUDRON J:  Does that say that quickness to sense an insult

is a matter like exceptional pugnacity -

MR BUGG: Hypersensitivity.

GAUDRON J:  - - - not to be taken into account.

MR BUGG: That is right. Hypersensitivity to insult is not

to be taken into account and, in fact, I do not

Stingel(2) 105 8/8/90

understand my learned friend to be arguing that

hypersensitivity should be taken into account.

BRENNAN J:  Mr Bugg, could I ask you, because I think it is

relevant to the question we have just been

discussing, whether you use the word "wrongful" to

qualify "insult" and if so what is meant by

"wrongful".

MR BUGG:  Yes. I would not for the purposes of this appeal

argue that point.

BRENNAN J: That it does?

MR BUGG:  I would not seek to sustain that point, no. The

question of -

BRENNAN J: Well, then "wrongful"

MR BUGG:  "Wrongful" .

BRENNAN J: What about "wrongful" act?

MR BUGG:  "Wrongful" act.

BRENNAN J: What is meant by "wrongful" there?

MR BUGG:  "Wrongful" act to the person offended by it,

provoked by it, or allegedly provoked by it.

BRENNAN J:  You mean, tortiously "wrongful" towards that

person?

MR BUGG:  Or criminally "wrongful".

BRENNAN J: Towards that person?

MR BUGG:  Yes; you see, this was a question that was asked

in our Court of Criminal Appeal and I said, "Some

criminal acts will not be provocative". For

instance, a disinterested shopper in a supermarket

may not be provoked by seeing a group of children

shoplifting or, alternatively, an adult
shoplifting.	Now, the act in itself is criminal;

the act in itself is probably wrongful, however you wish to describe it, but it need not necessarily be

provocative. It would depend upon its relationship

to the person claiming that that act so wronged

them that they were provoked by it. So that you do

not start looking for a crime or an offence, you

start looking for an act which is wrongful to the

person who claims to have been provoked by it.

BRENNAN J: Is this what it means, "An act which is capable

of being provocative to the accused provided it is

an act which is not justified or excused by law" -

lawful, justified or excused by law?

Stingel(2) 106 8/8/90

MR BUGG:  I do not think I would be prepared to go that far,

Your Honour, realizing that it would assist, to

some extent, the position that the Crown may have

to sustain on other occasions. Your Honour has in

mind, no doubt, section 160(4) by saying what you

do. In fact, it was only last night that I read

something which influences my thinking on

section 160(4) and perhaps, whilst on that point,

if I could canvass that with Your Honour and you

then may see the problem.

In the way in which section 160(4) entered the

Code, it would be my submission that it is in fact,

it has its origins with the doctrine of implied

malice and malice aforethought and the Stephen

Digest, I believe, is on the list of authorities

for the respondent.	I would refer Your Honours to
article 264, in the Digest.	I am not sure which
edition you have.	I believe we referred to the

eighth edition in the list. That appears at

page 218.

The crime of murder is homicide which is not excused or justified, committed with malice

following states of mind preceding or coexisting -

aforethought, either express or implied. the

And then goes on to describe a killing -

with an intention to cause death of or

grievous bodily harm to any person whether

such person is the person actually killed or

not.

The report of the commissioners, the Royal

Commission on Capital Punishment, at page 29, to

which I referred Your Honours earlier, and I

apologize for this not being in the list, but as I

say I read this paragraph last night. It is

paragraph 78, on page 29, dealing with
"constructive or implied malice".	The
commissioners say:

The doctrine of constructive malice was

expounded in the middle of the 17th century by

Coke who stated it in its most extreme form,

after saying that malice aforethought may be

express or implied in defining express malice

in terms which required premeditation.

He went on to say that:

malice is implied by law in three cases.	(a)
where a person kills another without any
provocation;	(b) where a magistrate or known

Stingel(2) 107 8/8/90

officer is killed in the execution of his duty

and (c) where a person assaults another to rob

him and in resisting kills him.

It is category (b) that I found interesting in so

far as section 160(4), because it spoke of "where a

magistrate or known officer is killed in the

execution of his duty". Because if you look at our

Criminal Code, section 160(5) talks about an

illegal arrest:

Whether or not an illegal arrest amounts to

provocation depends upon all the circumstances

of the particular case.

It follows immediately after subsection (4) which

speaks about a person:

doing that which he had a legal right to do.

TOOHEY J: That is not quite what it says, Mr Bugg, it

speaks of a person doing only, or rather

provocation is held not to arise by reason only of

the person:

doing that which he had a legal right to do.

MR BUGG:  Yes.

BRENNAN J: There may be overtones accompanying the doing of

the act which enable it to constitute provocation.

MR BUGG:  Yes, I accept that, and that is a useful

additional argument for this proposition, that is,

that it is my belief, in the limited reading that I

was able to put into this last night, that

subsection (4) speaks of "lawful authority" in the

terms of either a person effecting arrests, or

doing something for which there is some lawful

authorization and, therefore, there is some further

assistance from that in the·commentary in

paragraph 77 of the report of the royal

commissioners - - -

BRENNAN J: But is there a legal right to offer an insult -

legal right within 160(4) to offer an insult,

which, on your argument, does not itself have to be

a wrongful insult.

MR BUGG:  I cannot think of any at the moment, Your Honour.

DEANE J: What about the jury's verdict in a criminal trial,

if it is guilty?

MR BUGG:  As an insult?

DEANE J: Yes.

Stingel(2) 108 8/8/90

MR BUGG: That insult may be an insult to defence

counsel - - -

DEANE J:	Or to the accused.
MR BUGG:	I am sorry, would it be an insult?
DEANE J~	Yes, to the accused?
MR BUGG:	He may be insulted by it if he has entered the

witness box and sworn on oath that certain things

did not happen.	If he has put in an unsworn
statement - - -

DEANE J:  Do not take time on it, Mr Bugg, I think I am

wasting time.

MR BUGG: Well, I am sorry, Your Honour - but, to answer

Your Honour Justice Brennan's question in relation

to a lawful right to give an insult; I cannot think

of any instance where that would be so. There

is - - -

BRENNAN J: Well, just as an exercise of the right of free

speech, if you want to call it that - - -

MR BUGG: Well, I was thinking, perhaps, of the qualified

privilege provisions of our defamation legislation.

Section 16 of our Defamation Act enables persons to

make qualified, under some privilege,

criticism - - -

BRENNAN J: There does not need to be publication of

anything to be an insult, except to the person

defamed.

MR BUGG:  I am sorry?

BRENNAN J: Except to the person defamed.

MR BUGG:  Yes. But, comment about political speeches;

political entities, conduct, matters of that

nature, have certain exemptions under our

Defamation Act, which one could probably argue'

therefore gives a lawful right to do so. There may

not be a lawful right, I guess, to insult in debate

in the Houses of Parliament, but that would be the

closest you could come in terms of spoken insults,

where you could say there is some authorization, as

opposed to right, to do what is being claimed under

some form of privilege, but I would need to give

further consideration to that, but the - - -

BRENNAN J: Yes, well we will not delay on it.

MR BUGG:  There is certainly a lawful right to eject someone

from your premises, or to tell someone to leave

Stingel(2) 109 8/8/90

your premises, or to tell someone to get away from
your property,: being your car, and if the exercise

of that right, in a spoken wordk, in the form of

vulgar abuse, is seen as an insult then, as it was claimed at the trial in argument, that proposition

was that it was not an insult, it was merely an

aggressive demand to go away.

TOOHEY J: ·But if "wrongful" in subsection (2) meant

contrary to law then presumably there would be no

need to introduce subsection (4), would there? In

other words, there appears to be a contrast between

"wrongful" and "legal".

MR BUGG:  Yes. Yes, it is subsection (4) that creates the

difficulty in relation to "wrongful" and perhaps

the history of subsection (4) which seems to be

aimed more at officers of the court, and what have you, who have some lawful authorization, and yes I would say that that assists.

TOOHEY J:	It also seems to imply that something which you have a legal right to do may, in certain
circumstances, give rise to provocation because it
speaks of"only by doing that".

MR BUGG:  Yes. There are two references - or one particular

reference to a dictionary definition of "insult",

and that is in Bedelph's case at page 40 of the
judgment of His Honour Mr Justice Crawford, where

he goes into some consideration, in fact, of the question of what amounts, in law, to an insult.,

Perhaps whilst we are on that we could consider it.

Perhaps if I could ask Your Honours to turn

back to page 39, I am sorry. His Honour refers to

Scott's case, which, of course, is an old Western

Australian decision and that, in fact, has been

cited as authority for the proposition that the

word "wrongful" qualifies both "act" and "insult".

I would not seek to canvass that argument today,

although there has been a recent Queensland

authority to the same effect.

Steven's case, I believe, is in the list but I

invite Your Honours to just consider that portion

of His Honour Mr Justice Crawford's judgment.

Stevens is not in our primary list and the

secondary list was not photocopied, but I merely

refer Your Honours to it. It is (1989) 2 Qd R 386.

It is a judgment of the Court of Criminal Appeal

handed down in April last year.

If I could refer Your Honours to, perhaps, the

relevant portions of the judgment at page 391 in

the judgment of His Honour Mr Justice Demack.

There is reference made to Mogul Steamship Company

Stingel(2) 110 8/8/90

v McGregor and the statement by Lord Justice Bowen

that the term "wrongful" imports:

the infringement of some right.

That case, as His Honour Mr Justice Demack points

out concerned a civil action and he drew some

distinction between the use of the word "unlawful"

throughout the Criminal Code in Queensland in just

this singular reference to "wrongful" and says that

he regarded the use of that word in section 268 of

the Queensland Code as deliberate and it suggested:

that something other than or more than the
matters covered by the word "unlawful" is

intended -

and, of course, I do not argue to the contrary.

Then, at page 392 he comments that:

The phrase is "any wrongful act or insult" not

"any wrongful act or any insult", and the

usual grammatical construction would require

"wrongful" to qualify both "act" and

"insult" -

and he, in fact, referred to Scott's case earlier

on in his judgment.

My learned friend yesterday referred

Your Honours also to the decision of Taylor, (1948)

1 DLR 545, but that was a Canadian decision and I

do not propose to read any passage from that

judgment.

That, Your Honours, was all I proposed to

say about "wrongful act" and "insult" in any event

other than to, perhaps, add the qualification - we

seem to come back to it quite regularly and that is

Hansford's case in some sense obviously governs the

determination of "wrongful" in the terms of an
application of the objective test.	I invite

Your Honours to consider the comments made by

His Honour Mr Justice Murphy in Voukelatos' case

where he was quite critical of the state that the

law of provocation has reached in Victoria in

considering the particular factual situation in

that case highlighting the difficulty of a claim of

an insane delusion by an ordinary Greek from the

island of Lefkas, that his wife was having an

affair when, in fact, there was no factual basis

for it whatsoever other than the fact that she had

spoken over the boundary fence on two occasions to

her neighbour.

I suppose in terms of racial slur, it may be

of interest to Your Honours to consider the case of

Stingel(2) 111 8/8/90

Christopher Richard Johnson,

(1989) 89 Cr App R 148 where the provocative

insult was, in fact, the words, "you white nigger".

MASON CJ:  I think there is a limit to the assistance we can

get from looking at particular cases.

MR BUGG:  Yes. Your Honour, that may be of assistance in

indicating the extent to which the misapplication

of Lord Justice Diplock's speech in Camplin's case

has reached in the United Kingdom which I made some

comment about yesterday. I had proposed to

conclude my submissions to the Court in relation to

the law in the United Kingdom by reference to

Brown's case and then proceed to consider the cases

in Canada where, in fact, the provisions of their

Criminal Code, not dissimilar to those in Tasmania,

with the exception, of course, of the

overriding - - -

MASON CJ: Yes, well you might bear in mind the comment I

have made, that we can derive only limited

assistance by going through particular cases.

MR BUGG: Well, yesterday there was some consideration made

of the judgments of Chief Justice Dickson and

Justice Wilson in Hill's case. It had been my

intention to respond to those particular passages,

Your Honour, because some weight was attached to

them by my learned friend in his submission.

MASON CJ:	Yes.
MR BUGG:	So if I. can just draw Your Honours' attention to

those - 25 CCC 330.

MASON CJ:  What do you want to say about them? We were

taken through the relevant passages yesterday.

MR BUGG:  Yes. Well the Chief Justice in his judgment

follows the history of the inclusion into the

Canadian Criminal Code of the "reasonable person"

concept, which has its origins from the judgment of

His Honour Mr Justice Keating. He refers to that

at the top of page 330 and that, of course, is the
same argument we developed in relation to the

Tasmanian Code and the purpose for the ordinary

person in our Code. I would submit that the

reasons advanced by the learned Chief Justice in

that judgment support the position which we have

adopted in this argument before the Court.

In so far as the relevant passage to assist in

this submission, I refer Your Honours to page 335

where, in considering under subparagraph (3) the

appropriate content of the ordinary person standard

towards the foot of the page His Honour says:

Stingel(2) 112 8/8/90

Features such as sex, age or race do not

detract from a person's characterization as

ordinary. Thus particular characteristics

that are not peculiar or idiosyncratic can be

ascribed to an ordinary person without
subverting the logic of the objective test of

provocation.

Of course, in our submission, the characteristic

which is sought to be attributed to the appellant in the argument which has been advanced would, in

our submission, be either peculiar or

idiosyncratic.

DAWSON J:  What His Honour says there is you leave it to

the jury.

MR BUGG:  Yes, but that is a different matter with Canada

because, as I said in my preface, Your Honour,

there is not the overriding requirement in Canada

that there is under the Tasmanian Code. The

additional words imported into the Tasmanian Code

in 1934 are not in the Canadian Code which is based

on the Steven model.

DAWSON J:  Well, I will comment on those additional words.

They just do not seem to make sense to me or to add anything except to ascribe the function to the

judge in making a preliminary determination.

MR BUGG:  Yes.

DAWSON J: And presumably in Canada, if there is no evidence

to go to the jury the judge will not leave it to
the jury.

MR BUGG:  Yes, that is so, but it is perhaps a slightly

different test in the way in which it is worded in

section 160(3), and I would canvass that with

Your Honours in a moment, but if I could just

conclude my consideration of the judgment of

His Honour Mr Justice McIntyre which was referred

to by my learned friend at the foot of page 339 and

the top of page 340, there the passage actually

referred to yesterday by my learned friend was - at

the foot of page 339:

The law, however, does recognize human frailty when the threshold test is passed and a person

is provoked beyond the level of tolerance of

the ordinary person. Then the individual

characteristics of the accused may be

considered and, where the other terms of s. 215 of the Criminal Code are met, the

defence will apply.

Stingel(2) 113 8/8/90

What His Honour was there talking about, in fact,

was the move from the objective test to the

subjective test. So, of course - and I would not

join issue with that - the individual

characteristics can be considered such as even

intoxication in dealing with that aspect of the

test.

Your Honour Justice Gaudron indicated to my

learned friend that perhaps the passage of

Justice Wilson at page 347 and going over to

page 348 assisted his argument. In my submission,

in fact that passage commencing with the last full

paragraph on page 347 and going through to about

the tenth line on page 348 supports the submission

which we have made in relation to the appropriate

test to be applied.

BRENNAN J:  Do you accept what Justice Wilson says in the

middle of page 348?

MR BUGG:  I am sorry, Your Honour, if I could just turn back

- in the middle of page 348?

BRENNAN J: Yes, the underlined part.

MR BUGG:  I am afraid I did not - I notice Your Honour has

left out the word "heavily" but I did not get an underlined copy, I obtained one from the library so, perhaps - - -

MASON CJ:  The part that commences with the sentence:

The objective standard applies to mental

states rather than to attributes which simply

go to placing the insult in its proper

context.

To the end of the paragraph. Do you accept that?

MR BUGG:  No, I do not Your Honour.

MASON CJ:  I thought, earlier, in response to the question,

"What characteristics of the accused do you take

into account in assessing the nature and gravity of
the insult?", your answer was such as to indicate

that you would accept that?

MR BUGG:  No, I am sorry. The sentence says:

The objective standard applies to mental

states rather than to attributes which simply

go to placing the insult in its proper

context.

I am sorry, I read that as a sentence saying,

"We're only concerned with mental attributes and

Stingel(2) 114 8/8/90

not characteristics or attributes which simply

place the insult in its proper context." I would

have said an attribute in those circumstances would

be the colour of a person's skin, the fact that he

may have had one leg. I would not remove those

from the objective standard and that is, as I

understand, what is meant by that sentence and that

is why I said, "No, I wouldn't agree with it.",

Your Honour. But if there is some other

interpretation certainly it seems to be
inconsistent with the next sentence which says:

Accordingly, the most appropriate formulation of the objective standard in the first stage of the provocation defence is that of the ordinary person similarly situated and

similarly insulted.

I would not disagree with that.

MASON CJ: What about the next sentence?

MR BUGG: Yes, I do not have any difficulty with that

either.

DEANE J: If you accept that sentence, is it not simply

saying, if you forget the bit about the jury

putting themselves, is it not simply saying

"attribute the self-control of an ordinary person"

to the accused?

MR BUGG:  It is close to the same but I am not prepared to

accept it, Your Honour.

DEANE J: That is a fair enough answer, Mr Bugg, yes.

MR BUGG:  I am not prepared to accept that that is what is

being said there and for the reasons that I

advanced earlier this morning I would not be

prepared to go that far because you then have the

entirety of characteristics some of which may be

totally irrelevant to the insult or wrongful act	and, as I have said, that is not the purpose of the
exercise.
I had proposed, because there was some use of the decision of His Honour Mr Justice North in
McGregor's case, Your Honours, to refer you to the
situation in New Zealand. If I could merely say
this, that in New Zealand the legislation, the
amendment effected to the code in New Zealand, by
the amendment to the Crimes Act in 1961 is quite
different to section 3 of the Homicide Act in the
United Kingdom and perhaps explains, when one looks
at it, why His Honour Mr Justice North went to such
lengths in McGregor's case to try to make meaning

Stingel(2) 115 8/8/90

of that section. And I refer Your Honours to

section 169(2)(a):

Anything done or said may be provocation if -

In the circumstances of the case if was

sufficient to deprive a person having the
power of self-control of an ordinary person,
but otherwise having the characteristics of

the offender, of the power of self-control -

and, of course, that is Your Honour Justice Deane's

proposition and the difficulty that that caused

His Honour Justice North can be seen when he tried

to interpret that subsection and I do not know

whether Your Honours have McGregor's case

there - - -

MASON CJ: Yes, we have it.

MR BUGG:  - - - but I merely refer to it because it was

used by Lord Lane in Newell's case with - it was

referred to with approval and I believe the words

"impeccable direction given" by Lord Lane to what

is said in that judgment but the problem sterns from

the passage from the report at page 1080, line 42,

where His Honour, in my respectful submission,

falls into error where he says:

The earlier statutes contemplated "an

ordinary person". Now there has been appended

this qualification - "an ordinary person but

otherwise having the characteristics of the

offender". If the phrase "but otherwise" were
construed to mean "in the respects" then the

test of the power of self-control of an

ordinary person would remain unaffected.	Upon
this interpretation -

and I will not read out the entire passage but the

problem that His Honour then created for himself by

the interpretation he made of that subsection can

be seen when one examines the balance of his

judgment where he starts to involve himself in

attributing a transient - or differentiating

between transient characteristics and permanent

characteristics and that, in fact, was picked up in

Newell's case and in that situation the question of

whether or not a person who had been a chronic

alcoholic for 10 years should have that

characteristic regarded as being one that was

permanent rather than transient.

But in any event I merely refer Your Honours

to that because it may give some indication of

where, to some extent, the difficulties that have

been experienced in Victoria come from because in

Stingel(2) 116 8/8/90

Voukelatis's case you will see that His Honour

Mr Justice Hampel Hampel speaks of permanent and

transient characteristics in his judgment.

That interpretation was to some extent

criticized in the New Zealand decision of Tai which

is in the list. I merely refer Your Honours to

page 105 of the judgment.

I had proposed to conclude my examination of

the ordinary person test by considering the
decisions of the South Australian Supreme Court and

Court of Criminal Appeal. I can do that in brief

summary in light of the time, Your Honours, and as

far as that is concerned I would refer Your Honours

to the judgment of Chief Justice King at page 313

in Webb's case where His Honour follows the Camplin

test and then, in Dutton's case at page 358 he

applies Camplin in South Australia. But the

difficulty that develops, you will see, as

Chief Justice King wrestles with the problem of

applying the speeches in Camplin's case is that he

develops a two-stage test where he clothes the

ordinary person with the characteristics to
determine the nature of the insult, and then he
unclothes him of those characteristics for the
purposes of determining what the power of self-

control of the ordinary person is. And, of course,

faced with the prospect of giving a direction along

those lines to a jury it would be, as I said

earlier this morning, an exercise of mental

gymnastics that might be a real challenge to the

juries of this country.

But that is the stage at which the

interpretation of Camplin has gone. The

correctness of the approach, that is that you

maintain the ordinary person's power of self-

control has been followed throughout by

Chief Justice King, and I referred Your Honours to

Fricker's case yesterday and that, we say, is the

correct approach. However, the end result becomes

confused when you go through the two-stage process,

and Your Honours will see that as far as His Honour

Mr Justice Cox is concerned, he ultimately reaches

the stage where he attributes all idiosyncrasies to

the ordinary person if they are present in the

accused for the purpose of determining the response

to the ordinary person test and the stimuli. I

refer you to his judgment in Romano's case to which you have been referred, at page 293. They would be

the only comments I would propose to make about the

position in South Australia. And that concludes my

submissions about the ordinary person test.

There was some reference - if I could just

consider section 160(4) with Your Honours - there

Stingel(2) 117 8/8/90

was some reference to that subsection in the

judgment of His Honour Mr Justice Nettlefold. That

appears at the top of page 3 of his judgment which

is at page 580 in the appeal book, and His Honour

there says:

By the terms of s.160(4) neither the

deceased nor Miss Goss could be held to give

provocation to the appellant only by doing

that which they had a legal right to do.	The
conduct they were engaging in was not
criminal.	Nor was it a breach of any other

legal duty or obligation.

He then characterizes the nature of the act that

was being performed and then says:

That being so, presumably, it was something

which they had a legal right to do.

The question of a wrongful act is perhaps a

secondary aspect of the appellant's submissions to

this Court, and I certainly in light of the

comments I made earlier to Your Honour

Justice Brennan about that aspect of the Code would

not seek to advance support for that proposition

put by His Honour. However, the act - the wrongful

act - as I have said is a secondary matter that has

been raised by the appellant. He concentrates more

in his submissions on the insult perceived by the appellant as to the conduct and the words uttered

at that time. There is some reference made to

passages from the Police Offences Act, but in my

submission, the wrongful act has got to be directed

at the person claiming it as a stimulus for the
provocation and, in my submission, in these

particular circumstances, what was occurring in the

car was not a wrongful act directed at the

appellant.

I regret it, but I have to go back to

Hansfords' case to say that ·in the circumstances

what was occurring, no ordinary person would

perceive what was occurring in the car to be a

wrongful act perceived and directed at them and the

act itself was not wrongful per se in terms of the

fact that they were doing what they were quite

entitled to do and the appellant had no expectation

that they do otherwise by terms of some marital

bond or claim of fidelity over the young lady

concerned.

The question of proportionality and the extent

to which that is raised in the appellant's

submissions, in my submission, is confined now to a

consideration of whether or not any factor or

consideration of the question of proportionality

Stingel(2) 118 8/8/90

exercising the duty which is cast upon him under	should be undertaken by the trial judge in
section 160(3).
In my submission, the cases referred to, that is the Tasmanian authorities referred to in the
outline of submissions, will support the
proposition that in Tasmania there has never been a position taken which has elevated the question of
proportionality beyond the point of being other
than an evidentiary tool, a factor to be considered
along with all the other factors in answering the
question which has to be answered by the trial
judge under section 160(3). It has never been cast
as a separate rule of law, the failure to satisfy
that rule being fatal to the applicant's position in seeking to have her provocation direction left to the jury.

If it is accepted that the jury can

legitimately consider the question of proportion

and that, is in so far as the jury function is

concerned, I suppose, a twofold consideration, the

first one being could an ordinary person be

deprived of the power of self-_control to conduct

himself as the accused did in these circumstances

so that there is a consideration, I suppose, in a

loose sense, of the proportion or comparison of the

conduct of an ordinary person to that of the

accused, that is, by comparison to the act

performed by the the accused. If that is a

legitimate exercise for the jury, leaving aside any

question of proportionality that they may consider

in relation to the subjective element of the issue,

then, in my submission, it is also a legitimate

exercise to be undertaken by the trial judge and

that is all that occurred in this particular case

when the trial judge considered or made reference

to his use of proportionality.

I refer Your Honours to the ruling given by

the learned trial judge. It is in volume II of the

appeal books at page 548.	His Honour makes this
conclusion at line 11:

In these circumstances I am unable to find

that what the deceased said to the accused was

something which could have deprived an

ordinary person in his position of the power
of self control to such an extent that he

would commit an act of extreme violence - He then goes on at line 18:

I hold the view that the question of

proportionality does apply. The obtaining of

the knife and then violently stabbing the

Stingel(2) 119 8/8/90

deceased would not and could not be found to

be the ordinary person with what might be

described as ordinary powers of self control

when spoken to in that way.

What the accused did may well have established

that he with his own peculiarities -

and so on. His Honour was not there saying that,

"This is a separate test, he has failed that test,

provocation will not be left". It is included in a

ruling where, prior to his mention of it,

His Honour has made reference to other aspects of

the factors he has taken into account in arriving

at the conclusion he has. He does not say that the

rule of proportionality applies. He says, "I hold

the view that the question of proportionality does

apply", not that some rule governs it and, in fact,

that question of proportionality was a factor that

was taken up by His Honour Mr Justice Nettlefold in

his judgment, but there is nothing in that judgment

or, for that matter, in the trial judge's ruling

which indicates that in some way or other

Their Honours have adopted some rule which has got

to be a condition precedent satisfied by the

appellant and, in my submission, there is no breach

with the line of authorities, certainly from

Tasmania, and those which are referred to in the

list of authorities contained in the outline of

submissions.

I will not take Your Honours through them, but

I merely submit in general that those authorities

are support for the proposition that in all other

jurisdictions that now is the case as well, with

perhaps the exception of New South Wales where the

1982 amendments to the Crimes Act make some

specific mention to the rule of proportionality

which was, prior to that time, applied in that

State.

DEANE J:  Mr Bugg, what do you say is the distinction

between the question the trial judge is required to

ask himself, pursuant to 160(3), and the question

on that aspect of provocation which goes to the

jury if he answers that question in the

affirmative?

MR BUGG:  Yes. Your Honour, that was in fact the next

matter I was proposing to canvass.

DEANE J: Well, in that case come to it in your own course.

MR BUGG:  Well, I can in fact deal with it. I had concluded

that portion of my submissions and under the

heading of onus of proof, I had proposed to canvass

with Your Honours the question of just what that

Stingel(2) 120 8/8/90

test is and, in fact, Your Honours will see that

that is, is there sufficient evidence to go to the	the test is not put in the form of a jury question,
jury; the question is whether any matter alleged
is or is not capable of constituting provocation is
a matter of law. It is not a question of whether a
jury will entertain a reasonable doubt, based on the evidence that is there, could a reasonable jury
fail to be satisfied beyond a reasonable doubt, but
rather it is a question of the capacity of the
evidence that has been heard of constituting
provocation and, of course, the effect of provocation is defined in subsection (1), but
provocation is defined in subsection (2). And, of
course, what the trial judge must there satisfy himself is the capacity of that evidence to
constitute provocation, and that is precisely what
he did in this case.

I do not believe it is made a separate ground

of appeal that there is some error in the way in
which the learned trial judge posed that question

for himself, but rather in the way in which he

answered the question.

DEANE J: But in so far as the question relates to, can the

wrongful act or is the wrongful act or insult of

such a nature as to be sufficient, what question

do you say the trial judge asks himself under

subsection (3)?

MR BUGG:  He considers the wrongful act, whatever the

wrongful act or insult is, which he did in this

case; he considers the person to whom it is

directed; he considers its effect on that person

and the effect on an ordinary person so situated as

well, and if it is of such a nature as to be

sufficient to deprive an ordinary person of the

power of self-control, and in fact it has deprived

the accused of the power of self-control, then
there is evidence it is capable of constituting

provocation.

DEANE J: Well then, that is precisely the same question as

is then put to the jury on the preliminary part of

subsection (2)?

MR BUGG:  It is a slightly different question, Your Honour,

than the one which is put to the jury, because the provocation.

DEANE J: Well, put aside onus of proof.

MR BUGG:  Right. The question that he would pose to the

jury - I am sorry, I had written it out,

Your Honour, so that I could perhaps better address

Stingel(2) 121 8/8/90

that point. The jury would be asked whether taking

into account the appropriate degree of self-control

which an ordinary man would or should have and

could they decide that the insult might reasonably

have being so grave to the accused as that which

would deprive an ordinary person of the power of

self-control, so as to do what the accused did.

Now, that question is quite different to the question which the trial judge must ask himself in

answering the question of the capacity, or

capability, of that evidence amounting to

provocation because what he must do is examine

whether or not, not whether a jury may entertain a

reasonable doubt but whether there is evidence of
provocation. Not evidence which would cause a jury
to have a reasonable doubt about provocation but is
there evidence of provocation. So, in fact, it is
a higher test than that which would be posed to the

jury.

DEANE J: Well, I am a little lost. What if the trial judge

says to the jury, "The question whether the alleged
matter is capable of constituting provocation is a

matter of law, I have ruled that it is, you will

abide by that ruling", what does he next say in

relation to the first part of subsection (2)?

MR BUGG: Well, he then, obviously, would give them some

direction about that evidence which supports the

proposition that the accused was provoked and that

that evidence is capable of - - -

DEANE J: But has he not answered the question?

MR BUGG:  Well, he has not in the sense that if you look at

subsection (3), whether the conditions required by

subsection (2) were or were not present in the

particular case is a questions of fact.

DEANE J: But are not the conditions, the last two

conditions, that is, what the section says is

alleged matter of this kind is:

capable of constituting provocation -

if (a) it in fact -

deprives the offender of the power -

and (b) it was acted on:

sudden, and before ..... time for ..... passion.

MR BUGG:  Yes, I understand that, Your Honour.

Stingel(2) 122 8/8/90

DEANE J: Well, the judge has decided as a matter of law that

the alleged matter was capable of constituting provocation. It is then a matter for the jury whether the conditions required by the subsection

are fulfilled.

MR BUGG:	Yes.
DEANE J:	I am still a little lost as to the precise

distinction between what the judge is doing and

what the jury is doing.

MR BUGG:  I suppose the precise distinction is, the judge

views it from the view of the facts most favourable

to the accused. The jury, in its assessment of the

facts, may not consider those facts which support

the proposition that the trial judge has concluded
to the same extent. They may disbelieve, for

instance, the unsworn statement in this case.

DEANE J: Well, I follow that. Is what you are saying this:

that the judge says to the jury, "If you find (a),

(b) and (c) that is sufficient, it is a question

for you".

MR BUGG:  Yes.

DEANE J: Where the conditions are satisfied?

MR BUGG:  Yes.

McHUGH J: That reverses the onus of proof, does it not?

MR BUGG:  Your see, Your Honour, this section was imported

into the Code before Woolmington and I do not want

to embark on it. I had this under the heading of

"Onus of Proof". I would not seek to ask this

Court to consider that question and I certainly do

not, but that is the way in which the section is

written. Now, of course, what ultimately must be

the jury's answer, is, "Are we satisfied beyond a

reasonable doubt that those conditions are not

present?" In other words, they answer it in the

negative, or alternatively, they say, "Do we

entertain a reasonable doubt as to whether or not

this person was provoked?"

DEANE J:  Except we cannot disregard this in that - why I

am asking these questions; it seems to me if, in

section 160, one goes beyond the approach of

attributing ordinary self-control to the accused,

you are going to end with the position where, when
you combine a two-stage test and everything else

with the onus of proof and 163, you are going to

end up with the situation where the direction will

be something that no jury could conceivably

understand.

Stingel(2) 123 8/8/90

MR BUGG: Well, Your Honour, you do not attribute the

ordinary self-control to the accused. That is the

first thing. Whilst we have debated this this

morning, I would not go so far as to make that

concession in responding to Your Honour's

proposition. The proposition is straightforward

because the trial judge is not embarking upon a

direction to the jury as to the reasoning processes

he exercised when he considered that part of his

function under section 160(3).	The question that
he would pose - - -

DEANE J: Well, except you say that, but 160(3) entrusts to

the trial judge a particular question, not merely

as a preliminary question, but it entrusts it to

him completely. Now, that being so, if that

question is relevant to the jury's consideration,

the trial judge is entitled to direct them what the

answer to it is.

MR BUGG:  Yes, and he can say, "I can direct you as a matter

of law that if you find X, Y and Z then the

conditions are present".

DEANE J: But the point is, you see, if he - I think this is

what Justice McHugh was putting to you - says, "As

a matter of law that alleged matter is capable of

constituting provocation", in terms of the first

half of 160(2), how could the jury say "There is no
reasonable doubt that the first part of 160(2) is

not satisfied"?

MR BUGG: Well, because, as I said - and I am sorry for

repeating myself - the jury exercise is a

consideration of the evidence. Their

acceptance - - -

DEANE J:  I put it badly. If the jury find the facts most

favourable to the accused on which the trial judge

has ruled as a matter of law the first of subsection (2) is capable of constituting

of fact, that it was not, when as a matter of law provocation, how could the jury find, as a matter it is beyond reasonable doubt?

MR BUGG:  No, that is right. I would accept that. That is

a logical conclusion.

DEANE J: Then, we are getting into very difficult areas of

directing a jury.

MR BUGG: Well, Your Honour, the difficulty of a jury

direction may be one matter, the correctness of the

trial judge's approach, with respect, is another,

and if he approached it correctly in accordance

with section 160(3), and it is my submission that

Stingel(2) 124 8/8/90

he did, then that is an end to the matter,

but - - -

McHUGH J: 

It throws up the whole question as to whether or

not the onus is on the Crown to negative this
defence. Historically it obviously was not and all
the problems arise once you seek to apply

Woolmington to it. It is just unworkable, it seems

to me.  I have been thinking of that for the last

day and I just cannot see an answer to it.

MR BUGG: 

No, and that is why I said to Your Honour that

that section was imported into the Code prior to

Woolmington, and, of course, it was a point that

Your Honour took to this Court in Johnson's case

and it was on that very question of proportionality

and whether or not that was excluded from the

reversal of onus provisions under the Crimes Act in

New South Wales, but worded as it is it appears to reverse the onus. But Woolmington has certainly been followed in Tasmania as being the correct

approach and that is that we bear the onus and that

position I would not seek to dispute. But the way
in which the trial judge's function is cast in
section 160(3), I would submit, is a different

function to the one that would be followed in a

common law jurisdiction because this is a specific

direction.

McHUGH J:  You see, why I cannot follow this: if, as a

matter of law the trial judge holds that a

reasonable person - that an ordinary person could

be deprived of his self-control, if the onus is on

you, how in that situation can the jury have

otherwise than a reasonable doubt about that issue?

MR BUGG: Well, I suppose there could be some aversion of

the facts, such as, in this case, an unsworn

statement which the jury say, "Well look, that just

does not hold water, from all the other evidence

that we have heard" - - - · .

McHUGH J:  I appreciate that, but that is because you reject

the accused's account altogether, but once you

accept his account of it, it just seems to me that

once the trial judge lets it go to the jury, I do

not see how the jury could have other than a
reasonable doubt about it, once the facts are

accepted.

MR BUGG:  I do not disagree with that, Your Honour, that is

what I said to His Honour Mr Justice Deane and I

hold that position that if they accept the

evidentiary basis most favourable to the accused

then there would seem to me to be no doubt about

it. He ought to be given the benefit of the doubt.

Stingel(2) 125 8/8/90

BRENNAN J:	Why could the judge not ask and answer the question, "Could this wrongful act or insult
deprive an ordinary person of the power of self-
control?", answer that question affirmatively
having regard to his view of what an ordinary
person might react to and then submit to the jury
the question whether or not whatever wrongful act or insult that they found was of such a nature as would deprive an ordinary persons of the power of
self-control, leaving it to them to apply their
view of ordinariness and the response of ordinary
people to that?
MR BUGG:	They may have a different view of the response of

an ordinary person; with one exception, I would

change the word "would" to "could".

BRENNAN J: That is a pretty critical exception. In fact,

it is the vital one because the point of my

question to you is that is there any escape from

the problem that has been just put to you by

Justice Deane and Justice McHugh except by having a

"could" test for the judge and a "would" test for

the jury, inviting the jury to apply their views of

ordinariness whilst the judge applies a view which

is broad enough to encompass what a reasonable jury

might find to be ordinary?

MR BUGG: That would be the only difference. It is perhaps

not the only escape. As I said, there can be a

factual basis for a difference between a

determination of the trial judge and a verdict of

the jury.

DEANE J: But you are still left with Justice McHugh's

problem and that is a judge can say to them, "You must be satisfied beyond reasonable doubt that it would not. I tell you as a matter of law that it

could."

MR BUGG:  No, with respect, Your Honour, I do not believe

that is the - - -

DAWSON J:  Does not the answer lie in the fact that the

facts the judge take into account in determining

whether it could are not necessarily the same facts

as the jury takes into account? It comes back to

what I was saying before, they may take a different

combination of the facts and come to a different

conclusion.

MR BUGG:  Yes, I believe I had answered that.

DEANE J: This is all hypothecated.

MR BUGG:  I understand that.

Stingel(2) 126 8/8/90

DEANE J: This is all hypothecated on the facts most

with that, if you find them. favourable to the accused and the judge is dealing

MR BUGG:  Yes. Your Honour said that the question posed by

the judge to the jury would be he would have to be

satisfied beyond a reasonable doubt. Certainly

they have to be satisfied beyond a reasonable doubt

if he is guilty of the crime of murder. Then the

question is do they entertain a reasonable doubt

about the satisfaction the Crown must give them as

to the lack of provocation which is quite different

than the question that Your Honour was posing.

McHUGH J:  If the judge tells them that on this evidence,

as a matter of law, it could amount to - an

ordinary person could lose the power of self-

control, it is very difficult to see how the jury

could then be satisfied beyond reasonable doubt

that an ordinary person would not have lost his

self-control.

MR BUGG:  I still come back to that question that there is

clearly going to be a situation where His Honour is

taking the view of the facts most favourable to the

accused and that has got to be.

McHUGH J:  I understand that; no problem about that.

MR BUGG:  So then you will get your conclusion where the

jury, for want of a better word, may apply a higher standard, in fact, of an ordinary person's power of

self-control than, in fact, that which the trial

judge considered and that may very well happen but,

in addition, they may take a totally different view

of the facts. So there are probably two bases.

Justice Brennan posed the use of the word "would"

as a test put to the jury. That is certainly not

the way in which it is put - - -

GAUDRON J: If you use "would" that really does subvert the

notion of the onus of proof being on the

prosection, does it not?

MR BUGG:	Yes.
GAUDRON J:	The question must be "could" to be reconciled with "wouldn't" .
MR BUGG:	Yes, that is why I said to Justice Brennan, I

would withdraw "would" and place "could" in there. But I think Justice Brennan was creating an escape

hatch for me. I did not see it in that light

because I believe there are occasions - clearly,

historically, there are occasions where provocation

has been left and the jury is convicted of murder

and one of the classics, I suppose, is Askeland to

Stingel(2) 127 8/8/90

which I referred Your Honours yesterday and there,

obviously, the jury either disbelieved the

appellant - the accused as the then was - or

alternatively imposed a higher standard of self-

control on the ordinary person than that which the

appellant sought to rely.

DAWSON J: But the answer lies in the jury setting its own

standards.

MR BUGG:  Yes. At the end of the day the jury will do that

but in Tasmania there is a threshold. I suppose

there is always some insurance therefore that the

standard will never fall below that which is set by

the courts in Tasmania. It may, in fact, be set

above but it will never be set below. In answer to

Your Honour's proposition of earlier this morning

and what you have just put now.	But it is there
and that is the situation.

DEANE J: Can I just detain you for one second longer? Does

this not really all add force to Justice Dixon's

view - Sir Owen Dixon's view that the relevant

question is,"On these facts could a jury reasonably
find" under subsection (3) and not a direct

confrontation with the subsection (2) question?,

because if that is so the next question would be,

"Has anybody done this or faced that question in

the courts below?"?

MR BUGG:  Yes, I understand what Your Honour says. I accept

that when Sir Owen Dixon made those comments, he

was clearly looking at something more than

subsection (3). He was talking about the purpose of subsection (3) without examining the effect of

it as a matter of strict interpretation. The

question of what the appropriate test is has not

been posed in those terms. I examined the notice

of appeal of the appellant before the Court of

Criminal Appeal - it was not a matter that was

canvassed in the notice there; it is not a matter
that is canvassed in the notice here.	In that

sense it is an issue that has not been resolved but

on a matter of strict statutory interpretation, I

suppose you could argue that it was given some

consideration.

I had some page references to the appeal book

for reference to the judgments if Your Honours will

just bear with me. There is, of course, the

comments made by the trial judge. I refer you to

the judgment of His Honour Mr Justice Wright at

pages 605 and 606. Half-way down page 605

His Honour says:

The provisions of section 160 of the Code

are quite explicit -

Stingel(2) 128 8/8/90

and he refers to Justice Nettlefold's judgment in Jeffrey's case. He says, half-way down page 606:

Despite the substantial blurring of the functions of the judge and jury which has

arisen in common law jurisdictions, it remains
the case in Tasmania, as Nettlefold J

concluded in Jeffrey, that section 160(2)

provides an objective threshold test to be

considered by the trial judge.

That is not dissimilar to the comments made by

His Honour Mr Justice Nettlefold at page 603 which

is the last page of his judgment.

There are some matters that were canvassed by

my learned friend which I would seek to reply to.

If there are any other matters in the respondent's

submissions which Your Honours wish to raise with

me, I would answer those questions now before

proceeding to reply to these specific matters.

Justice Toohey, you asked yesterday my learned friend whether or not you measure the ordinary

person against the wrongful act and to some extent

that is so. You measure - and we would accept

that - that the characteristics - and it is,

perhaps, not the most appropriate term but it is

the one that has been used which seems to have the
most effective meaning; perhaps not the strictest

meaning but, in any event, those characteristics

which are relevant to the wrongful act and, of
course, relevance was the issue that was considered

in this case and also considered in Tai's case, the

Canadian decision I referred Your Honours to

yesterday.

There was some reference made to a number of

cases from Papua New Guinea. In just considering
those generally, there are perhaps two aspects: the

in a country where you do not have your reasonable	first one is, obviously, you are considering a code
Englishman and ..... Mensa, I guess, is a fair
illustration of an attribution of national
characteristics rather than seeking to transplant
the British concept of the reasonable man, that is,
the reasonable British man, and in addition to that, one must view the gravity of the insult in
that environment with those national
characteristics or, for that matter, those tribal
characteristics. I would submit that the judgments
of single judges from the courts in Papua
New Guinea in applying the code in that country
should be given also some colour based on the
legislation - and I can give Your Honours a
reference to it - which requires a consideration of national characteristics and tribal

Stingel(2) 129 8/8/90

characteristics - that is the 1963 Natives Customs

Recognition Act and I refer Your Honours to

section 7 - it was not in our submissions in reply.

The authorities on Papua New Guinea were new to us.

BRENNAN J: But that has to do with customs affecting the

relationship between the people in the same way as

English customary law, does it not?

MR BUGG: Well it says that "the application of custom to

criminal cases is restricted by section 7 to

ascertaining the existence or otherwise of the

state of mind of a person deciding the

reasonableness or otherwise of an act, default or

commission, deciding the reasonableness or

otherwise of an excuse" and what I said was that

the judgment should be given some colour in light

of that section which goes on, "deciding in

accordance with any other law in force whether to

proceed to the convictions of a guilty party and

determining the penalty, if any, to be imposed on a

guilty party or where the court considers it. By

not taking the custom into account, injustice will

or may be done to a person". And, of course, the

custom you may take into account would be, for

instance, in one of the cases cited by my learned

friend - I think it was Hamo-Tine - the lifting of

an eyebrow was taken by a native custom of that

locale to be a severe and grievous insult so that,

I suppose, there can be some guidance taken from

section 7, Your Honour.

The question of taking the crime of indecent

assault from a jury just does not arise. That is

either a no-case submission which succeeds or it

goes to the jury and they make their determination.

The jury is never deprived of making a

determination of whether an act is indecent because

the accused will either be acquitted by a no-case

submission or they do get their chance.

I have referred Your Honours to the passages

from Hill's case and the reference to the term

"relevance" used at page 336 in Ly's case.	I have
answered a number of these matters as I have

proceeded with the submissions, Your Honours, or I

have tried to answer them.

I have already referred Your Honours to the

tests applied by the courts under section 160(3).

That concludes the submissions on behalf of the

respondent, if the Court pleases.

MASON CJ: Yes, Mr Kahle.

MR KABLE:  May it please the Court. Dealing firstly with

the factual matters, might I invite Your Honours

Stingel(2) 130 8/8/90

when giving consideration to ground 4 to closely

read page 569 and 570 which contain the unsworn

statement. The question arises as to the trial

judge's description of the word constituting the

insult as merely an angry demand for privacy. By

so limiting the meanings attached to the utterance

and the facts surrounding the utterance, His Honour

did not give consideration to a variety of

potential factual permutations and combinations.

The question would be what proper inferences could the jury draw as to the manner in which the

accused heard or received those words. Those words

and the surrounding conduct preceding and

succeeding could have been received as a final

rejection, could have been received as denoting the

accused was a lesser being, and in a demeaning way
disclosing that the deceased had Tania Goss in the
sense of possessory nature, and that he, the
accused, did not.

Further, the continuation of sexual conduct, whether the jury found that oral sex continued

after Stingel came to the car, or whether merely the parties in the car maintained their physical

position, vis-a-vis, each other; or whether they

found that at the time of or shortly after the

utterance, "The deceased is playing with himselftt,

as described in the unsworn statement, are all versions of fact which, if not constituting an

insult in themselves, give colour to the insult

constituted by the words. They are to be had

regard to in the light of an 18-year-old brought up

in Scottsdale whose feeling, vis-a-vis, the female

concerned, was of sufficient strength that at one

stage he had attempted to take his own life. That is the submission I make as to the factual matters

by way of reply.

My friend indicated in his argument that the appellant has sought during the various hearings of

this matter to dilute the factual content of this

case. It has not been the appellant who has sought to dilute the factual content of this case by going from obsession to intense feeling, but it has been

the various rulings that have been made that have

used phrases which perhaps have lesser impact.

As to the state of law in Tasmania, might I

remind Your Honours of a passage from

Chief Justice Green in Jeffrey where of Bedelph's

case His Honour said this:

Although the statements made in Bedelph's case

on this point were obiter dicta I do not

consider it would be appropriate in this case

to review its decision in that case. Quite

Stingel(2) 131 8/8/90

apart from the question of whether there exist

any reasons for doubting the correctness of

that decision, neither side has invited us to

do so, we have not had the benefit of argument

as to the question and in any event, as will

appear later in these reasons, I am of the

view that the circumstances of this case do

not call for such a review.

So the assertion that there is a consistency

in the state of the law in Tasmania commencing with

Jeffrey, in my respectful submission, is not in

accordance with the law. Bedelph was a unanimous
decision. In Jeffrey without the benefit of
argument, and without an invitation from either

the Crown or the accused, two members of the court

embarked upon a legal exercise which resulted in

the invention of the exterior circumstances

argument which invention has not occurred in any

other jurisdiction to which this Court has been

referred in the last couple of days. And thus, in

my respectful submission, it is not correct to say

that there is a consistency of approach in

Tasmania. But even if there were, that would be

irrelevant because the obvious inconsistency

between the interpretation of the Tasmanian

Criminal Code and that existing in Queensland and
Western Australia resulted no doubt in part in this

Court granting leave in this case, and will result in the Court definitively explaining the law for us.

As to Ly's case, if that is to be relied upon

I would remind the Court that the judgment in

Ly's case to which reference is made from Hill

is Justice McIntyre's judgment in whose reasoning

and conclusions no other members of the Supreme

Court of Canada agreed in Hill's case.

As to the debate between my learned friend, Justice Deane and Justice McHugh, as to the test to

be applied and as to whether the test the trial

judge applies ought to be the same as that applied

by the jury in their·ultirnate adjudication, if

Mr Justice Clark in Packett was correct in identifying the reason for the addition of the

words "it is a matter of law" then, as I understand

it, the debate between Justices Deane, McHugh and

my friend does not arise because the test

predicated by the words is an evidentiary test, not

a qualitative test, it was to remove a perceived

problem, Packett was decided after Woolminqton and

is referred to by the High Court in Woolmington and

in that circumstance the difficulty that was raised

in dialogue, in my respectful submission, does not

arise.

Stingel(2) 132 8/8/90

That is why the decisions, in my respectful

Thorpe the test as one of

submission, of and Mr Justice Clark in disclose that in articulating

law, that word is used as referring to an

evidentiary onus, not a persuasive onus or a

qualitative task.

BRENNAN J:  Could you give us the references for Packett

and Thorpe?

MR KABLE:	Packett v Reg,(1938) Tas R 18, at pages 43 and 44, Thorpe is 18 Cr App R 189 and Jackson is (1918)
NZLR 363, and I think I am correct in saying this,
that of all of the judges in Packett who wrote judgments the only one to give consideration as to
why Parliament in 1935 added those words was
Justice Clark in the Court of Appeal in Tasmania.

As to my friend's submission as to"wrongful

act", and his submission that it must be directed

at the person, my submission is that cannot be

correct and a better phrase would be "it must have

relevance to the person who is said to be

provoked". To require it to be specifically

directed at, rather than to have factual relevance
to, is to place too high a test.

As to "wrongful act", I refer Your Honours to the top of my written submissions - I will not read

them - page 4, and to Murdock, which is not

mentioned therein, 40 CCC 103, which is authority

for the proposition that "wrongful" does not

qualify."insult", and my respectful submission is

that the reasoning in the Court of Criminal Appeal

in Queensland in Stevens is non-convincing and in

error and the reasons why I submit that are

manifest from the reasoning contained in Murdock

and I do not detain the Court any further as to

that, or other matters.	May it please
Your Honours.

MASON CJ:  Yes, thank you, Mr Kable. The Court will

consider its decision in this matter.

AT 11.59 AM THE MATTER WAS ADJOURNED SINE DIE

Stingel(2) 133 8/8/90