Stingel v The Queen

A'tt --b,i~USTRALIA,1~
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IN THE HIGH COURT OF AUSTRALIA

Office of the Registry

Hobart No H2 of 1990
B e t w e e n -
MICHAEL JAMES STINGEL

Applicant

and
THE QUEEN

Respondent

MASON CJ

BRENNAN J.
DEANE J

DAWSON J

TOOHEY J

GAUDRON J

McHUGH J

TRANSCRIPT OF PROCEEDINGS

AT CANBERRA ON TUESDAY, 7 AUGUST 1990, AT 10.17 AM

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MR H.J. KABLE: May it please the Court, I appear with my

learned friend, MR D.J. GUNSON, for the appellant.
(instructed by Zeeman Kable & Page).

MR p. BUGG: May it please the Court, I appear with my
learned friend, MISS H. LAMBERT, for the
respondent. (instructed by Director of Public
Prosecutions).

MASON CJ: Yes, Mr Kable.

MR KABLE: Yes, may it please the Court, I have available
nine copies of the outline of submissions in
respect of this matter and, of course, copies for
my friends.

MASON CJ: Thank you. Is the outline materially different
from the submissions presented on the last
occasion?

MR KABLE: No, Your Honour, it is not materially different.
It is amplified, I hope, clearer and is a little
fuller in that it, of course, contains no
references to matters relating to the grant of
special leave and contains references to a large
number of cases not all of which I will be seeking
to refer to.

MASON CJ: That is comforting.

MR KABLE: There are no propositions of law that are
contained within it or which will be contained
within my argument which are different to the ones
that were contained in the previous document, but I hope the propositions for which I contend have been
refined a little.

MASON CJ: Yes.

MR KABLE: Your Honour, in summary form, the submission that
I will be making is that the interpretation for
which I contend in respect of section 160(2)
arises, firstly, as a result of the natural and

ordinary meaning attached to the words "contained
therein•. If, however, it is necessary to have
resort to the common law, then my submission is
that by resort to the c~n law, the same
interpretation is necessarily the correct
interpretation. Further, I then will be submitting as to the definition - well, I should say, then the
submission that the Criminal Code is not frozen in
time becomes relevant because if the section is
said to enact the common law at the time of
enactment then my submission is that as a result of
the application of principle, if the common law is
subsequently explained, then that common law, as

Stinge1(2) 2 7/8/90
explained, is the relevant common law for the
purpose of the Code.
I then proceed to examine the definition

of "wrongful act" and "insult"; then, the meaning
attached to the phrase "legal right to do" in

. section 160(4). I then submit that
proportionality, to use that shorthand phrase, has
no place in respect of the decision of the trial
judge to withdraw the issue from the jury in so far
as the Criminal Code is concerned and, if it has
any place whatsoever in the Criminal Code, it is only as a matter to be taken into account by the jury in their adjudication.
Because there still seems to be no community

of approach between the Crown and the applicant as
to the test to be applied, I have set out in some
detail in my written submissions the test that the
appellant submits ought to be applied by a
trial Judge before taking the issue of provocation
from the jury and then, finally, I, in the written
submissions, deal with the disposition of the
appeal by the identification of the errors said to
have been made in the Court of Criminal Appeal and
I will then relate all those matters specifically
to the facts.
Might I be permitted to make two preliminary

observations and those are that, and they are trite
of course, the right to trial by jury is a

fundamental right; its existence is said in many studies to be an important distinguishing feature
of a civilized community; the history of trial by
jury was chartered by Your Honour Justice Deane in
Kingswell's case at pages 298 to 301 at page 312,
and the critical proposition that I would wish to
put is that any legislative provision which limits
the fundamental right to trial by jury should be
interpreted to give as much effect to the right to
trial by jury as is consistent with the section so
limiting the right and, I submit, that the fact

that a verdict in a criminal case ought, as
frequently as possible, be the province of the jury
has been reflected in that range of decisions
relating to whether or not a judge may take a case
from a jury when there is some evidence of guilt
but, to use a colloquialism, not much, the cases in
the various jurisdictions and, secondly, the
decisions of this Court and Courts of Criminal
Appeal which are referred to in my submissions, which hold that notwithstanding, firstly, that
there is no direct evidence of loss of control and,
secondly, that experienced counsel, specifically, urges a trial judge not to leave provocation to a
jury, there is nevertheless an obligation upon a

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leave that issue to the jury. tri.al judge if the facts permit of the verdict to

Those preliminary remarks are made to support the contention that I mentioned a moment ago that
any legislative provision which limits the right to
trial by jury should be interpreted to give as much
effect to the right to trial by jury as is
consistent with the section.
The first important issue in this case is the

judicial determination of the nature and extent of
the ordinary person as referred to in
section 160(2) of our Code, and it is important to
note that the attribution to the ordinary person in
that subsection of one characteristic of an accused
may be determinative of the trial, such is the
importance of the issue. That is, there will be
occasions, and this may be one, where the failure
to attribute to the ordinary person a
characteristic or life experience of the accused
person will result in a different verdict than that
which might otherwise be reached. That is the
critical nature of the question before the Court as
to what characteristics, or life experiences, of
the accused are to be attributed to the ordinary
person, and this case provides an example of that
fact.
The word "ordinary person" must be given a

meaning and adjacent to the number 1 on page 1 of
my submissions is the primary proposition for which
I contend. An isolation of the characteristics and
life experiences (including interpersonal
relationships) of the accused which are relevant to
the "ordinary person" will depend upon the
"wrongful act or insult" in the particular case.
It follows that any characteristic(s) or life
experience(s) (or interpersonal relationship(s)) of
the accused which bear upon the quality or gravity

of the alleged "wrongful act or insult" are and -it is submitted - must be relevant and therefore attributed to the ordinary person for the purpose
of adjudicating whether or not the alleged wrongful
act(s) or insult(s) were of such a nature as to be
sufficient - and I insert parenthetically not
necessary but sufficient - to deprive "an ordinary
person of the power of self-control".

DAWSON J: Well, there is no such thing as an "ordinary
person", is there, really?

MR KABLE: No, I mean, you start off with the proposition
that that word cannot mean - that there is no such
thing. It must be given clothes or experiences or
a variety of things - - -

Stingel(2) 4 7/8/90

DAWSON J: Well then, a way to give the word some meaning is

to say a person possessing ordinary
characteristics.

MR KABLE:

Yes, that might be a very different thing,

though, Your Honour. A person possessing ordinary
· characteristics, perhaps, leads us to the same
difficulty because the averaging concept involved
in that does not admit of the variety of human
conduct that might potentially be provoked in - - -

DAWSON J: But, it is much narrower than the definition you

have given to it.

MR KABLE:

Yes, Your Honour, it is.

The submission I make

adjacent to number 1 is a submission which is
based, in my submission, on principle and on a
number of cases and it is based on principle to
this extent, that fairness requires a full
appreciation of the extent of the wrongful act or
insult prior to an embarking upon an assessment as
to whether the response was one which could or
might emanate from whatever the ordinary person is.

TOOHEY J: Well, that seems to come fairly close, Mr Kahle,

to saying that you measure the ordinary person by

reference to the nature of the wrongful act which
is said to constitute provocation.

MR KABLE:

Because provocation is directed towards something

done "anti" the person, in order to assess the
legitimacy of the response, there must be a full
understanding of how it is said that what is done
is either wrongful as an act or is an insult.

TOOHEY J:

I understand that, but I thought the submission

went rather further and suggested that in
determining who is an ordinary person, or what are
the characteristics of an ordinary person, somehow
to measure that you look at the nature of a
wrongful act or insult.

MR KABLE:

Yes.

The submission I make is that for a

particular case you look at the nature of the
wrongful act or insult; you isolate the
characteristics or the whole life experience to
analyse that wrongful act or insult. It is the
response to the act or insult which must be that of
the ordinary person thus clothed. That way there
is still retained in the test an objective aspect,
albeit it much less than was the case 60 years ago.

TOOHEY J: Do you mean a person to whom the wrongful act has

some significance?

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MR KABLE:

A person to whom the wrongful act is done - and "done" might not be quite the precise word - so we
know why it is wrongful.

TOOHEY J: I mean, a term of abuse to some person might mean
nothing because that person did not understand the

connotations of what was being said. To another it
might be regarded as a grave insult.

MR KABLE: That is critically why, when the activating
feature of provocation is "wrong act or insult", it
is necessary to examine the wrongful act or insult
in the light of the person who is the recipient or
the object or the subject, and I use those three
words because that covers a spectrum. And, to take
Your Honour's example, to suggest to a barrister
that he is a very poor brain surgeon would be
inconsequential, but to make it inconsequential one
would need to know that he is, in fact, a barrister
and that he had never even pretended to be a brain
surgeon and that perhaps to take an extreme thing,
the concept of any blood was something that made
him physically ill.
Now, in that environment, that would enable a

full understanding of whether there was a wrongful
act or insult, and if the answer to that be "no"
then, of course, provocation does not apply, but to get to the stage where you can make the qualitative
assessment as to whether a jury could find - to put
it more precisely - but Your Honours would
understand what I am saying - you must clothe the
person with the characteristics and life
experiences of the person who asserts that they
were provoked because, if you take the word

"wrongful" - and I will come to "wrongful" in due
course - wrongful may mean a variety of things,
some of which fall far short of committing a
criminal offence, and there is a variety of cases
that example that.
"Insult" has not ever been given a technical

meaning in the decisions that I have located. It
has been given generally the dictionary meaning,
and whether in 1924 or today, in order to
appreciate an insult, it is essential to understand
the background in which it is said to be an insult.
Now, the reason that I put this submission is that we have had a variety of other - if I can, in
answer to Your Honour's question, just go
prospectively - certainly, my submission is in
Canada, a test not quite going this far, but not
inconsistent with the one I have just submitted is
the case. In Western Australia the common law has
been said to apply to the phrase "ordinary person",

Stingel(2) 6 7/8/90
and the common law has certainly gone as far, in my
submission, as I seek to go today.
In Queensland, the Northern Territory and Papua New Guinea, the courts have consistently
instructed juries that they are to take the person
· asserting provocation as being a member of the
particular location, tribe, race, lifestyle before
adjudicating upon the ordinariness of the response
and that, I submit, to take it one step down the
track, demolishes any question of what I would call
the exterior circumstances argument because there
can be no place in logic for an exterior
circumstances argument, which is the argument that
occupied a number of members of the Tasmanian
courts for some time.
The illogicality and lack of principle

associated with that argument causes us to come
back and see what has happened in the various areas
where this issue has arisen and essentially the
response has been one of looking at the person in
the circumstances then existing and assessing the
response bearing those facts in mine, and that is
why when we come to page 2 - and I am not going to take Your Honours, as I indicated to Your Honours,
to every case - the approach taken in Queensland,
Northern Territory, Papua New Guinea, I submit, is
in fact on all fours with the principle that I
submit is the one to be applied to section 160(2).
Before we get to that stage, the question

might rhetorically be posed, "Well, does that not
really take you to a subjective text completely,
and are you not advocating that the objective test
just ought to go?" And the answer is that as a
matter of principle I would love io advocate that
the objective test ought to completely go, but some
meaning must be given to the words in the section
because the phrase "ordinary person" there appears,
and it is my submission that if the test that I
have submitted is the appropriate one, is accepted

and determined to be the correct one by this Court,
that will result in meaning being given to every
word in subsection (2) because any characteristic
or quality which reduces the actual power - and
that is the word in the section - of self-control
rather than the response to the factual
circumstances will not be attributed to the
notional ordinary man.
The critical word in the section, in my

submission, is the word "power" because what
happened in 1924 was that in Tasmania the law of
provocation was the common law, and the Code, when enacted, represented a significant change from the

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common law then applying. In the true sense,
grammatical sense, the law was reformed, the notion
of insult was introduced as being permissive of the
jury acquitting a person of murder when provoked,
which was absolutely anathema to the common law as
it had been expressed for, at that stage, perhaps a
century and there is no suggestion that the word
"insult" when introduced was to be given other than
a meaning comprehendible and comprehensible by the
ordinary juror because it was the juror who was

going to make the decision. The amendment and
reformation of the law in 1924 - and it is
important to remember that the phrase in
subsection (3) -
and the question whether any matter alleged
is, or is not, capable of constituting
provocation is a matter of law -

did not exist in 1924. That came in in 1935 and I
make submissions about that later.
So in 1924, when enacted, the Code, ell in

advance of its time, indicated that an insult by
definition could have the power to deprive an
ordinary person of the power of self-control, and
when it did (subject to Woolmington which came
later) resulted in an acquittal.
In 1924 that was a question of fact. Whether

the residual discretion remained with a trial judge
as it does with any issue to indicate to a jury
that there was no evidentiary onus which had been
discharged, therefore the issue was not available
for adjudication, does not seem to have been an
issue at that time.

TOOHEY J: Mr Kable, I am sorry, I am not following you

entirely. When you speak of acquittal what are you
referring to?

MR KABLE:

To the verdict of manslaughter, I am sorry,

Your Honour, acquittal of murder.

TOOHEY J: But there is nothing novel about that, that had

been in the other codes for at least 30 years or
so.

MR KABLE:

The concept of insult?

TOOHEY J: Yes.

MR KABLE:

In the codes it had, Your Honour, but it was the

common law that was the law in Tasmania.

TOOHEY J: Yes, I appreciate that, but you spoke as if there

was some novelty in the proposition that an insult

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could constitute provocation. All I am saying is
that so far as the Code States were concerned that
had been recognised for a number of years.

MR KABLE: Certainly, Your Honour, before the turn of the

century.

TOOHEY J:

The point of departure in the Tasmanian Code

seems to have been the introduction of the notion
of ordinary person, at least - perhaps not the
introduction of that notion but the reference to
the ordinary person in specific terms.

MR KABLE:

Yes, which, as I understand the history, takes it

back to a - if I may use the phrase loosely - a
"Stephen Code" rather than the Code in Western
Australia or Queensland which, upon an examination
of the sections then and now, has a different
scheme of things. There are a number of obvious
differences between the two codes, not the least of
which was that provocation did not apply to any

crime other than murder. The other codes defined
relationships between various people which set out
circumstances where provocation could arise.
I went searching through the archives to see

if I could find anything that may give any
assistance at all in the adjudication of this case, conscious that we do not have a section in Tasmania
the same as the federal Acts Interpretation Act but
nevertheless it occurred to me there may be
something there but the second reading speech - and
I have the documents here if the Court is inclined
to examine them, there is nothing to indicate why this section was preferred over the Queensland or
the Western Australian section; there is nothing
in the second reading speech about this aspect and
there are drafts of the code predating the last
one, particularly the 1917 draft, which have the
very sections which are located in Queensland and
Western Australia.

Those matters are not conclusive, they just

show what we did not legislate rather than what we
did but the reason I was emphasizing that was that
this enactment, as far as Tasmania was concerned,
was in the nature of a significant reform
(recognizing that that reform had been effected to some extent but not to the extent that I submit in
Queensland and in Western Australia).
Of course, the section which is the most

similar to the Tasmanian section is the one found
in Canada and I will be coming in due course to see
what the Canadians did with it but of all the
sections that I have located that relate to

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provocation the closest to ours is the Canadian
one.
The other important distinction that the Code

was responsible for was the removal of the concept
of malice aforethought. Criminal liability, as the

Court would be aware, in Tasmania arises as a
result of section 13 which is the section that has
been discussed in Vallance and in the cases that

succeed Vallance. I am not proposing to embark
upon a consideration of that section or those cases. It is sufficient to say that one must
remember that when section 160 was enacted it was
enacted at the same time as a provision which had
no component of malice aforethought as a
constituent element for the crime of murder because
murder could be committed in 1924 by an act which you ought to have known was likely to cause death which act was voluntary and intentional.
So the parameters of murder were increased.

This Court has adjudicated on the meaning of that
section in Baughey but one element which was always
part of the crime of murder did not exist under the
code. And at a place in my submissions, but it is
perhaps appropriate to mention it now, I would seek
to draw a distinction between the "ordinary man"
referred to section 160(2) and the person whose
conduct gives rise to criminal liability pursuant
to 157(1)(c) which is the murder creating section
of our Code where the legislature did talk about
what somebody "ought to have done", "ought to have
known".
That, in my submission, indicates a

preparedness on the part of the ultimate drafters
and legislatures to import there the quality of
reason and this becomes part of the argument that
the ordinary person is necessarily a very different
person to the reasonable person and that comes
back, of course, to Your Honour Justice Dawson's
observation that the words "ordinary person" - and

I hope I do not do injustice - cannot - who do they
apply to - pose the question rhetorically or what
characteristics. It is a very difficult notion.
The non-legal answer must be those who the jury
decide them to be but I will come to that further.
The important point I wish to make is that

there is a real distinction in the requirement by
the legislature of a reasoning process between
section 157(1)(c) and section 160(2). Further,
when submitting as to principle it is submitted
that the ordinary person - your primary starting
point must be that the ordinary person in
section 160(2) must have attributed to them some
characteristics.

Stingel(2) 10 7/8/90

DAWSON J:

Well, is not the most relevant one the ordinary

power of self control? That does not solve all the
problems.

MR KABLE:

No, but if that be correct, that does not

invalidate anything that I have said thus far
either, with respect, because that still talks
about the power of self control, not that which is
going to activate it and that is the critical
distinction that I seek to draw and when the matter
was last before the Court, those members who were
there will remember that questions were asked
relating to, "Well, why do you leave in your
ordinary person 'exceptional pugnacity,
excitability' and why do you say that there cannot
be an ease of loss of self control?".
My answer on that occasion was because that is

what all the cases that I had located said but the
subsequent answer is, as a matter of principle,
that gives rise to an interpretation which gives a
meaning to every word in the section, and
particularly the word "power" in the section, but
does not invalidate the proposition for which I
first contended; and coming back to where I was, I
submit it is inevitable that the ordinary person
must have attributed to him or her some
characteristics because otherwise you cannot have
an insult.

BRENNAN J:

Why can the judge not simply say, "If I had

been in his shoes I might have been deprived of the
power of self control"?

MR KABLE:

The jµdge can say that exactly. The answer to

your question is the jury are better equipped, but
I will come to that.

BRENNAN J:

I am assuming, as I am reminded, that all in

the court room are ordinary persons. The proposition is simply that granted all the idiosyncrasies of the accused, appreciating the

full sting of the insult, why does the judge not
simply say, "If I had been in his shoes, I might
have been deprived of the power of self control"?

MR KABLE:

Your Honour, your use of the words "in his

shoes", in my respectful submission, is saying
another way what I am putting to the Court. That
is exactly what, submit, is appropriate. The
counter that I am trying to meet is that if we go
that far no meaning will be given to the word
"power". I would say you do put him in the shoes
but, more particularly, it is the jury who are
there who make an assessment as to whether they
have satisfied - it is a difficult thing because it

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is a proof of the negative and that makes it

essentially a jury function. But I do not want to
get into that now it would be too easy to take
that, but to put him "in the shoes" is exactly what
I am submitting.
Those whose job it is to adjudicate must, in

fairness, put themselves in a position to appreciate
either that the quality or gravity of the wrongful
act or insult - because until that step is reached
the case bears no reality to the accused in the
dock. There can be no adjudication upon his
response until you have seen what it is that happens
to him which requires a knowledge of who he or she
is and my submission is that that step does not do
violence to section 160(2), either as a matter of principle or as being contrary to the common law.

BRENNAN J: Are you not pushing at an open door there? Has
anybody contravened that proposition?

MR KABLE: I understood that the Crown do.
BRENNAN J: Perhaps they do.
MR KABLE: Certainly three of Their Honours in the Court of
Criminal Appeal in Tasmania, I submit, did in this
case.

BRENNAN J: Did they?

MR KABLE: The trial judge did, because the trial judge
said, to use Your Honour's phrase, about 'being in
his shoes', for the purpose of his adjudication
pursuant to section 160(3), His Honour was going to
assume feeling of a certain level between the
accused and the girl, but he was going to
arbitrarily chop it there.
So, if we had a graph.of the degree to which you can feel affection and/or love and/or such other

feelings between one person and another and the
graph extends from one side of the lectern to the
other, what His Honour the trial judge said was,"An
ordinary person could have feelings up to two-thirds
of the way", where my hand is, but for the purpose
of my adjudication as to your response, I am not
going to accept that yours go all the way down here,
I am going to artificially chop it off there; I am
not making a decision you are being less than
truthful because I have to examine the case on the
view of the facts most favourable to you, but no
ordinary person could feel all the way to the end of

the lectern, we will mark it about there. Now once
we have done that then any assessment of the
response is artificial".

Stingel(2) 12 7/8/90

· BRENNAN J: That is where the problem lies, is it not,

conflating the seriousness of the wrongful act or insult with the response.

What one must do, as
I understand it, is to keep those two concepts
separate?
That is the argument for which I contend; that

you do keep them separate and you do not limit the
first part of it at all and it is the second part
that you do limit, subject to all the cautions that
have been noted in the cases in this jurisdiction
and others and recognizing when exercising that
adjudicative role that it is such a different role
to the ordinary judicial role of determining
whether facts exist which could lead to a finding
of fact because it is by its nature a qualitative
assessment which is the most fundamental jury
question you can have. It is not, if I can use the
phrase, a "who dunnit".
An example removed from this area would be the

question of an indecent assault. What is an
indecent assault? Under the Criminal Code, the law

is an indecent assault is an assault that is

indecent in the circumstances. A trial judge would
be extraordinarily difficult to persuade if you
were acting for an accused that he or she, the
trial judge, should take that issue from the jury
because a trial judge would say that is uniquely a
jury function to decide what is indecent in the circumstances. That is a qualitative community
judgment and my submission is that the use of the
word "ordinary person" requires the same approach
here.
If we had the mythical reasonable person - and I do distinguish between the two and I respectfully submit that I have authority on my side - the
mythical reasonable person used to be in the
criminal law and then grad~ated from criminal law
and went to second year; is now in torts and

probably in contract and probably in some

commercial crime. You see, if you get something
like directors' duties or that, it may have a far
greater role to play but here we have the ordinary
person and what I say in answer to Your Honour's
comment is that because it is a qualitative
judgment and, of course, as Your Honour
the Chief Justice remarked previously, one of the
hurdles I face is the judgment of Justice Dixon in
Packett but my answer to that, to anticipate, is
that His Honour made observations subsequently
which, in my respectful submission, show that
His Honour's later view was not as strident as
His Honour's earlier view.

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7/8/90

It is - and most of the cases and again, , I I
say I am not going to take Your Honour's through
them all but, if you look at the recent cases in
South Australia; if you look at Caine, which is the
most recent unreported case in Victoria, where you
have got a case about somebody meeting someone at a
· disco, being told fibs by some other fellow at the
disco, fibs of the nature that he was a policeman,
mocking the first fellow, ruining his chances is
the way it was put in the case, of creating an

impression with a female. Now, that was it. I do
plain enough; provocation should have been left
not think I do the case an injustice and the not
and so on.
Now, it is the recognition, and I am conscious

that what Your Honours are doing in this case today
is really giving the first definitive exposition of
the meaning of at least three of these sections,
conscious as I am that that is the task that
befalls the Court, it is useful to examine the
practice of the courts of criminal appeal as this
Court so frequently says because there are some
matters that really are their province and the
assessment of what is being left to juries
throughout the country to determine whether they
are satisfied that a particular killing is an
unprovoked one comes from cases such as Caine in
Victoria and Earley, which is a recent unreported
South Australian decision.

MASON CJ:

Mr Kable, I think it might be of more assistance

if you concentrated on expounding your
propositions, rather than, as it were, going back
to tendential matters that relate to the criminal
law generally and notions of culpability.

MR KABLE:

If it please Your Honour.

I had concluded what I

wished to say as to page 1, as we follow the

written submissions through. I submit that the

Tasmanian decisions I refer to - and I do not
propose to read the passages to the Court from
those decisions unless invited to, but the passages
I have referred to at the bottom of page 1 all
support the contentions appearing above them and it
is, perhaps, more useful if I now go to the
Canadian decisions.
I recognise that there are a number of

Tasmanian decisions to the contrary; that is one of the reasons we are here but it is my respectful submission that the particular decisions referred
to and the reasoning contained within them are
important and show that the proposition that I put
forward can be supported in principle.

Stingel(2) 14 7/8/90
The report to which I refer the Court is the case of Hill, 25 CCC 3d 322. Perhaps before going
to the case in any detail, section 215 of the
Canadian Criminal Code, the relevant sections are
set out at page 325, at the bottom of the page and
at the top of the right-hand page and Your Honours
will note that the contents of the Code, not
surprisingly given the likely source of that Code,

particularly subsection (2). Now, there are
subsections (3) and (4) which are referred to later
but in reality, there is very little difference
between the Canadian Code and the one under
discussion.
The case of Hill was a case where the defence

of provocation was put to the jury and the
fundamental complaint which was made in the
Supreme Court of Canada was that the direction
given by the trial judge to the jury did not
sufficiently outline the characteristics of the
accused which were to be attributed to the ordinary

person. The Supreme Court was split as to the
ultimate disposition of the case but it is my
respectful submission that a close reading of the
judgments of that court lead to the view that the
submission I put to the Court a short time ago is
correct, that is, that those matters which are
relevance to the gravity of the insult or the
wrongful act may be taken into account as
characteristics of the ordinary person.
The judgment of Chief Justice Dickson at

page 326 isolates the issue of the appeal where one
paragraph from the bottom of the page above the
number 1 His Honour observes:
The narrow question in this appeal is whether
the trial judge erred in law in failing to
instruct the jury that if they found a
wrongful act or insult they should consider
whether it was sufficient to deprive an

ordinary person "of the age and sex of the appellant" of his power of self-control. Was it incumbent in law on the trial judge to add
that gloss to the section? That is the issue.

So, His Honour has articulated the issue. His judgment proceeds with various subheadings and at
pages 332 to 336 His Honour gives consideration to
the English law of provocation and the ordinary
person standard. There is a fairly lengthy history
set out and at page 335 are the passages to which I

would wish to refer. It is observed at the top of
the page that:
appellate courts at the provincial level -

Stingel(2)

7/8/90

in Canada were -
moving towards the Camplin approach.

His Honour then puts a subheading in His Honour's judgment:
The appropriate content of the ordinary person
standard
I think it is clear that there is widespread
agreement that the ordinary or reasonable -

and the word seems to be used interchangably in

Canada.

MASON CJ: And, that is what Mr Justice Dixon did in
Packett as well.

MR KABLE: His Honour did that in Packett, yes, exactly:
It follows that the ordinary person is not
exceptionally excitable, pugnacious or in a
state of drunkenness.
In terms of other characteristics of the ordinary person, it seems to me that the
"collective good sense" of the jury will
naturally lead it to ascribe the ordinary
person any general characteristics relevant to
the provocation in question -

is the critical phrase to which I would wish to
the Court.

It is understandable that given the issue that

fell to be determined in Hill's case, that
His Honour could say that it could be left to the
collective good sense of the jury. What we have
here, of course, is a case that did not get to the jury and, therefore, there is a requirement of the

were or were not taken into account in reaching delineation of the characteristics which either that decision and that proposition, in my
submission, is important because although
His Honour dissents as to the disposition of the
case, that observation that:
the "collective good sense" of the jury will
naturally lead it to ascribe to the ordinary
person any general characteristics relevant to
the provocation -

is certainly a proposition that flows through the
judgments of the other members of the Court.
His Honour observes:

Stingel(2) 16 7/8/90
To this extent, particular characteristics
will be ascribed to the ordinary person.
Indeed, it would be impossible to
conceptualize a sexless or ageless ordinary
person. Features such as sex, age or race do
not detract from a person's characterization
of 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.

MASON CJ:

Now, is that consistent with your submission

number 1?

MR KABLE:

The answer to that question is, the use of the

word "idiosyncratic" - it depends how
"idiosyncratic" is used there.

MASON CJ: Take a person who was extremely sensitive. That

sensitivity would be excluded by
Chief Justice Dickson. Would it be excluded by
you?

MR KABLE:

No, it would not be excluded by me and with

respect, Your Honour, it is my submission that on
what Chief Justice Dickson says, the jury may or
may not exclude. Although the word "general" is
used:
any general characteristics relevant to the
provocation in question.

Perhaps I could take Your Honour over the page
because after the very observation that we are
discussing, His Honour refers to Lord Diplock in Camplin and at page 336, six lines from the top, His Honour says this:
Thus the central criterion is the relevance of the particular feature to the provocation in
question. With this in mind -

that is the submission that I put but I do not
limit it by saying if it is idiosyncratic that that
is the answer to Your Honour's question
I think it is fair to conclude that age will
be a relevant consideration when we are
dealing with a young accused person.

His Honour then, in the next paragraph, indicates that the trial judge does not have to tell the jury
what attributes to take into account.
My submission is that what can be gleaned as

to principle from that judgment is the place of the

Stingel(2)

7/8/90

provocation in assessing what characteristics or
life experiences or history will be relevant.

McHUGH J: But how can the person be ordinary if he is
idiosyncratic in some aspects?

MR KABLE: He cannot be ordinary, but it is the use of
- the word "power" in the section which legitimizes
the submission I am making because it is the

ordinary person's power of self control. He is
talking about a sufficiency.

McHUGH J: But that raises a question in itself. I mean, a
person may lose his power of self control in the
sense that he is angry and rant and rave, but does
not lose his self control to the extent that he
would kill somebody, or even strike somebody.

MR KABLE: Certainly, Your Honour, and it would have to be
accepted by me that the power of self control is
the power of self control to do the act - - -

MCHUGH J: Causing death.

MR KABLE:

Which, in fact, causes death, yes. not have an accompanying state of mind to kill, but

It may or may
it has certainly got to be the power of self
control to do the act, ie. the stabbing in the case

at hand. I cannot submit to the contrary.

DEANE J: But is not the only real question in this case
whether proportionality is something which
section 160(3) entrusts to the judge?

MR KABLE: That is a significant question and was so seen by

Mr Justice Nettlefold.

DEANE J: Is it not really the only question? I mean, the
question is whether the judge was right to keep
provocation from the jury. Well, if
proportionality was not, to a limited extent, a
matter for him, one would have thought that it

should have gone to the jury; if proportionality
was, to a limited extent, a matter for him, if one
takes the view that the only relevant insult or
wrongful act is what was said, I would have thought
he was plainly right.

MR KABLE:

The answer to Your Honour's question is that proportionality - firstly, it is submitted that
proportionality does not have any place to
play - - -

DEANE J: I follow that, but I am just wondering what all
this other argument has to do with this case.

Stingel(2) 18 7/8/90

MR KABLE:

Because, if it were only the words, as distinct

from the context in which they were uttered, or the
ongoing physical activity.

DEANE J: Well, allowing the context in which they were

uttered.

MR KABLE: Well, I would be submitting that given the words

uttered, the context in which they were uttered and
the ongoing physical activity, if any, then on no
view would proportionality allow the trial judge,
even if it applies, to have taken that from the
jury, because of the very reasons that I am putting
here, so that is why I submit that becomes
relevant.

DEANE J: Well, I do not want to take time, but if you take

away the colour of the language, which in this
Court, of course, sounds quite differently to what it would sound in this environment, and say that
the statement made was, "Please go away, you
nuisance", surely, if proportionality is properly a
matter for a trial judge he or she would have to
rule that that could not justify the reaction of
going away, arming yourself, coming back and
killing the person.

MR KABLE:

If it were that utterance, without continuing

overt sexual activity, then I would be forced to
nearly concede Your Honour's point, but it is not
just the utterance, it is the fact of the utterance

in the case in the circumstances when it is uttered

with the continuing sexual activity, or overt

sexuality all round.

The utterance colours the

activity. That is my answer to Your Honour's

question.

DEANE J:

I follow the way you put it.

MR KABLE:

Your Honours, having referred Your Honours to the

Chief Justice's judgment in Hills case, might I

take Your Honours to Mr Justice McIntyre. Two of

Their Honours agreed with the Chief Justice, and
that is disclosed at page 338, and His Honour
there, under the headings "Conclusion" sets
out - - -

DAWSON J:

Mr Kable, why do you have to examine the

characteristics of the person at all? Is not
really what the jury has to ask itself in the end
this: they have to decide whether or not the
accused was provoked, and then what they really ask
themselves is, "In so being provoked, was the
accused exhibiting an extraordinary sensitivity, or
not?"? That may be not the correct formula of
words, but, was he behaving in an extraordinary
fashion, or not? And if you put it that way, you

Stingel(2)

7/8/90

can take all the circumstances into account and
still answer the question - is that not what the
section is getting at?

MR KABLE: Subject to the total observation Your Honour
just made, taking all the circumstances into

account, yes. Can a jury say that no ordinary
person - - -

DAWSON J:

No, whether he is behaving in an extraordinary fashion.
MR KABLE:
I do not think you can go that far, Your Honour,
and the reason that I submit you cannot is that you
have got a loss of control and the test, at this
stage of the proceedings, for the jury, is if they
make a finding of fact that there was a loss of
control that was something an ordinary person might

do. I submit that is something slightly different
from the way Your Honour put it as to whether he
was acting in an extraordinary fashion.
DAWSON J: Whether he is being extraordinarily sensitive in
all the circumstances.

MR KABLE: Yes. I still submit there is a distinction
between the question thus posed and whether a jury
could find that an ordinary person could so react.
I am just thinking of it as a potential juror, the
question that one legitimately - - -

DAWSON J: But you see, an ordinary person may or may not
react. That is the point.

MR KABLE: Yes.
DAWSON J: And so really to put it the way you are putting
it does not tell you anything. It is not difficult
to say whether this was an over reaction, something
extraordinary, taking all the circumstances into
account.

MR KABLE: I understand the way Your Honour puts it, but my
submission still is that the test for the jury
person is a slightly different one and that is the
only way I can answer Your Honour. Having made a
finding of fact of an actual loss of control and
having made a finding of fact that all other
criteria in the section have not been negatived by
the Crown, the question for a juror to pose for
themselves, whether I am right or wrong, becomes a
critical issue in this case because it is
acknowledged that all other matters are there and
it is my submission that the question for the juror
is, "Could, in all those circumstances, an ordinary
person have done what we have found occurred?", or,
put better, "Are we satisfied beyond reasonable

Stingel(2) 20 7/8/90
doubt that an ordinary person could not?", and it
is the Crown's responsibility to extinguish the
negative which results in the conviction for
murder.
That is why I submit that it is very important

when looking at this issue to take oneself from the
bench, as it were, to the jury room and pose the
question that the jury have to answer in the
affirmative to convict for murder, recognizing that
they can make all the other findings of fact.

DAWSON J:

It seems to me to complicate it in an unnecessary

fashion. Really the jury only has to say, "Was
this an ordinary reaction in the circumstances?",
and that is something they could readily

understand. Why does that not encompass it all?

MR KABLE:	I do not think I can better answer Your Honour than the way that I have attempted to. It may be
that there is not a major distinction between the
answer I am giving to Your Honour's question and
Your Honour's question, but I see a distinction of
degree and I suppose the answer to that is when I
am taking the question and answer to the place
where the question and answer is going to be asked
that degree may be determinative of the case, and I
do not think I can better answer Your Honour than
that, because that is what I submit the judge has got to tell the jury they have to ask themselves,
"Could an ordinary person", because it is a
question of sufficiency, as distinct from necessity.

That is where perhaps, if there is a
divergence between propositions flying between
Your Honour and myself, that is where it is, and
the place to test it - I am sorry to repeat
myself - but the place, I submit, to test it is by
actually going into the room and asking the
question, and when you are talking about the Crown negativing something before a lawful conviction of
murder is concerned, that shade may become very

important.

McHUGH J: What is wrong with with asking this question:

would an ordinary youth of 18 who saw what this
youth saw and who had said to him what he alleges
was said to him be deprived of the power of self-
control sufficient to kill the deceased?

MR KABLE:

The answer to Your Honour's question is that the

way the question is thus posed, as I interpret
Your Honour's question, pays no regard to the
relationship or the feelings or the interaction
between the accused and the girl. That is as I
understand Your Honour's question.

Stingel(2)

7/8/90

McHUGH J: Well, it assumes that an ordinary person of 18

may have had some relationship with a girl in that
situation. Yes, it does. It has to assume that.
I have just been thinking as to whether or not the
problem may rather lie in how you characterize the
wrongful act or insult, and at what level of
abstraction you characterize it rather than
worrying about imputing characteristics to the
ordinary person.

MR KABLE:

The way Your Honour has just posed your question

is one of the reasons why there is a slight
difference between the way I submitted it last time
and now, where I have gone to the wrongful act and
insult to identify the life experiences that are
relevant to the ultimate adjudication. That is
what I have submitted earlier and what I say in
answer to Your Honour is the critical aspect.

McHUGH J: Take a case well within the section, a case of

adultery. The question there is as to whether an
ordinary male finding his wife in the act of
adultery would have lost the power of self-control.
You are not concerned with their relationship in
any other sense than at that general level are you?

MR KABLE:

Might I just pose this in answer to Your Honour?

If he had done that every day for the last week
with seven different men and sat in the corner and
read the newspaper apparently unconcerned, and then
asserted on a different occasion that this made him
go right off, my submission is nothing could be
more relevant.

McHUGH J: But that would go to the other limb of it as to

whether it had, in fact, set him off.

MR KABLE: Sorry, I did not mean to interrupt, Your Honour. If we had evidence - in fact, to take the extreme example: a child comes running in who sees him

going right off, unquestionably. Nothing is going
to be more relevant to the provocation than what
has occurred between the major protagonists up to

the time that the provocation is said to occur.
And it may be that the use of the word
"characteristics" is not conducive to helpful
debate about i1 because it is the life experiences
or the history that are critical. And to say he is
intensely in love is to attribute a characteristic
may be the wrong way to go around it except that
that is the way all the cases have approached it,
but I have tried to come at it differently, but I
have tried to come at it differently.
If we can go back to the example I just gave

Your Honour: in making an adjudication as to
whether a location of an actual act of adultery

Stingel(2) 22 7/8/90
taking place could legitimately be provocation, there is an implied assumption that it does not
happen regularly, that it has not happened before,
that you did not know it was going to happen,
perhaps. If you had a case where a male or a
female was particularly blase, there had been a
history of conduct that might be described as
abhorrent, then the fact of appending the tag is

not going to be determinative of the issue. It is
the actions or the utterances in the light of the
previous interaction between ..... personae that
will be determinative as to whether it is a
wrongful act or insult, and as to then whether that
wrongful act or insult could cause an ordinary
person similarly situated to respond as such.

DAWSON J: Well now, are not all these matters for the jury.

In deciding whether this was an ordinary reaction
or an extraordinary action, one member of the jury may think something is important, another may not. For instance, one member of the jury may think a
16-year-old is probably less reactive to some

situations than a 30-year-old. So why does the
judge have to go into all of this, except when he
decides for himself whether there is evidence or
not?

MR KABLE: I could not agree with Your Honour more.

They are

all matters for the jury, but they did not get to
the jury. And what has happened in this case is
that the judge has taken it upon himself to say
that no jury could ever make the finding of the
type that is the subject of debate here.

DAWSON J: All right, and he did. And in so doing he took

the matters which he felt were significant into
account. But you cannot objectively say that

matter is significant and that is not. It depends
on the person's - - -

MR KABLE:

Except where the situation· you have is where His Honour the trial judge has made a finding that

no jury - - -

DAWSON J:

- - - could fail to find that this was an

extraordinary reaction on the part of the accused.
Well, all right.

MR KABLE:

I think I said this before - if I were here, and

if the appellant's complaint were of directions to
a jury, then I would not have a case because that
would be classically a matter for the jury with the
instruction that - because the judge has taken the
step of taking the case from the jury, my
submission is it requires an analysis of what each
of these sections mean because if His Honour has
failed to give true meaning and effect to each of

Stingel(2)

7/8/90

the sections in his taking it from the jury, that in itself becomes relevant. Because it is a
question of law as distinct from a discretion - - -

DAWSON J: It is not really, it is a question of fact, is it
not?

MR KABLE: Yes, except that in 1935 the Tasmanian Parliament
said it was a question of law.

DAWSON J: And the question is whether a reasonable jury
could conclude that this reaction was an ordinary
action in the circumstances. Well, the judge said
"No". That is it, it is not a question of law.

MR KABLE: It is a question of law in this sense that in
either the Court of Criminal Appeal or
Your Honours' reviewing of this case, now that
Your Honours are seized of it, the adjudication
involved is not the usual adjudication, given what
Your Honour says that it is a question of fact, of
what is involved, ie could His Honour have found
those facts? That is the distinction that I am
drawing because it is a question - it is not like
the exercise of a discretion where an appellate
court at any stage can indicate that a discretion may have been exercised or the following findings of fact were open, it is a vastly different finding
of fact to that because it is an individual choice
of whichever appellant judge, whether at the Court
of Criminal Appeal level or here.
One does not look at it in the way one looks

at a judgment in a car accident case and say,

and His Honour's findings were open to him and
"Well, there were three witnesses who did X and Y an exclusionary function and it is a question of
law there is a requirement that the actual evidence
be examined and a meaning given to the section.
That is the distinction I was seeking to draw.

In my submissions, and I have not got to that

stage, in Packett in the Court of Criminal Appeal
in Tasmania, Justice Clark set out where His Honour
thought the amending words to subsection (3) came
from and why they came about and that is referred
to in my submissions and His Honour felt that they
came from two decisions shortly prior to that.
Why there is no other indicia available in

reported decision as to why those words were
added - a question of law because - may I just keep
answering Your Honour for one moment? If it were
just a question of fact then my submission is we
would not be here because the question would be "Is

Stingel(2) 24 7/8/90
there any evidence from which a jury could
make - - -?"

DAWSON J: Well, that is said to be a question of law too,

it is a question of fact. I mean, it is a myth
that we perpetuate but it is quite obvious here
what the question is.

MR KA.BLE: ·Yes, except as I did say earlier - and I am sorry

I have gone off the track - the assessment of
whether there is evidence of actual loss of control
before taking the issue from the jury is a vastly
different judicial function and what is involved in
it is vastly different than the holding that no
jury could attribute a particular quality to
conduct and that is why one suspects it is said to be a question of law and that is certainly the way
it has been interpreted in Tasmania.

BRENNAN J: Mr Kable, is this not the question:

given the

version of the facts most favourable to the
accused - so we get rid of all the questions of
what the jury might find - was there a wrongful act
or insult of such a nature as to be sufficient to
deprive an ordinary person of the power of self-
control? That is the question the judge had to ask
himself and it is the question that arises here.
And the problem that arises is in what way do we
approach the answer to that question.

MR KABLE:	I agree with that, Your Honour.
BRENNAN J:	Then we do not have to worry about what the

judge might ask himself what the jury could find,
we just look at the facts, the most favourable
facts for the accused and say, "Now, on those facts
is it open to the jury to find it and is there any
evidence of that condition?"

MR KABLE:

Your Honour, that is exactly the proposition for

which I contend, but to get there what has
happened, so that Your Honour does not wonder why I
am standing here, is that we have had some of the

facts said not to be taken into account, that is
the strength of feeling, because it is said for
legal reasons, and that is the answer to
Your Honour's question, for legal reasons I, the
trial judge, cannot take into account the version
of facts most favourable to the accused. So that
is the first problem. Secondly, two of
Their Honours in the Court of Appeal did not pose
the question the way Your Honour did but talked
about whether a jury would have reached a
particular result, not could have, and my
submission is the trial judge made the same error,
and the question Your Honour just posed is the very
test I have been urging on the trial judge and the

Stingel ( 2)

7/8/90

members of the Court of Appeal subject, of course, to that limitation.
Now, I am at all fours with Your Honour as to

the question, but when we get to the issue of the
strength of feeling and Your Honours may recall
Mr Justice Underwood, in the Court of Appeal, said
that it was undisputed - he used the word
infatuation, that may have been a bad word for us
to be using all along, we should have just talked
about the nature and extent of the feeling -
His Honour said, as a matter of law, that you could
answer the question posed by Your Honour by saying
the accused was "in love", but you could not
attribute to that quality the intensity that the
evidence disclosed so therefore, in answer to Your Honour's question, for legal reasons the
version of facts most favourable to the accused was
not had regard to in answering the question
articulated by Your Honour.
Now, I would adopt Your Honour's question, on

all fours. Your Honour's articulation of the
question removes the whole passage of my
submissions relating to the test and leaves the
issue, what are the parameters of wrongful act or
insult (because there has to be one or the other
otherwise you do not get anywhere) and is there a
legal impediment, if any, to the true utilization
of the version of facts most favourable to the
accused.

DAWSON J: In answering His Honour's question, would the
trial judge be allowed to take some characteristics
into account and not others, or did he have
discretion?

MR KABLE: Well, my submission would be that he would not.
DAWSON J: See my point is that some people will think some
characteristics point and some people will not.

That is what His Honour the Chief Justice in Hill's

case had in mind when he said, "Well the
collective good sense of the jury will pick out
those characteristics which are relevant in the
circumstances".

MR KABLE: That is exactly

DAWSON J:

So the trial judge asking this question may, in fact, be taking different circumstances into
account to those to which the jury might think
important.

MR KABLE: I would go much further, almost inevitably will
be taking different circumstances; almost
inevitably will it be taking different

Stingel(2) 26 7/8/90
circumstances into account and placing a different

emphasis on the facts. I do not quarrel with the

passage that Your Honour has just referred to, subject to the test as posed.

DEANE J: But when you adopt Justice Brennan's test, do you

not abandon your argument in relation to
proportionality?

MR KABLE:

No, Your Honour, because my argument is that proportionality has no place in the code.

DEANE J: But would not proportionality come into the test

that Justice Brennan put to you?

MR KABLE:

Only in so far as the jury takes into account all

the facts. It would not, in the way in which that
word has been used in this area of the law which
was ultimately put to rest in Johnson's case, it
would not be a separate, either threshold or
artificial test.

DEANE J:

I would have thought it would have lain at the

very heart of the test?

MR KABLE: Taking His Honour's test and answering

Your Honour, the jury in considering whether he in
fact lost control in consequence of the
provocation, would take into account those facts
which might be said to the issue relevant to the
proportion, they would take into account that no
doubt the Crown would observe that insults
prima facie do not cause people to react by
stabbing, and His Honour may make the observation
that that is the type of matter they have got to
take into account in assessing whether the response
was a potential response of an ordinary person.
Now, to that stage, I acknowledge all those

matters. The area that I draw issue with
proportionality, and my respectful submission is,
that as I understand the authorities now in this

Court, and certainly in Western Australia - New
South Wales is different because of its different
provision, but Western Australia, and there is a
Canadian case I refer to, there is no place for it
as a separate test segmented up here, particularly
as a threshold test, but also as a separate test in
its own right, ie, if proportionality is resolved
against you, the accused, that is the end of your
provocation. It may be that the facts which
produce the submission that this conduct was just
so out of order are determinative of the case but I
would submit that is a different concept to the
test being determinative of the issue.

Stingel(2)

7/8/90

Your Honours, I am sorry, perhaps I should now

briefly take Your Honours to the other judgments in Hill. Justice McIntyre, in the major passages,
215, does not seem to go as far as the

Chief Justice, and that is at the bottom of 339, in the passage beginning:
Everyone, whatever his or her idiosyncrasies,
is expected to observe that standard. It is
not every insult or injury that will be
sufficient to relive a person from what would

otherwise be murder. The "ordinary person"
standard is adopted to fix the degree of self-
control and restraint expected of all in

society. 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.

That seems to be out of kilter with all the other judgments in that court, but that is the passage of
His Honour's judgment where His Honour discusses
the issue that I am putting to the Court.
Justice Lamer does not deal with the issue,

merely mentioning that age will be a relevant
consideration and Her Honour Justice Wilson, in a
judgment with which two members of the court concur
makes some important observations commencing at
page 344. At 344 and 45, the history of the - - -

MASON CJ: Well, are not 347 and 348 sufficient for your

purposes?

MR KABLE:

Yes, absolutely.

I was not going to read

anything from the others, Your Honour.

MASON CJ: The last part of 347 and the middle of 348.
MR KABLE:

The last half of 347 - absolutely. They are the
passages that have got the heavy underlining on my
copy, Your Honour, and they are the passages upon
which I place reliance and I do not pause to read
them aloud.

MASON CJ: Yes. I am not sure that I altogether approve of
the handing up of copies that have comments in
them.

MR KABLE: I am sorry, I did not realize that - I did not
hand up those copies, Your Honour. They were in my
list. It must have been the Hobart one when I - -

Stingel(2) 28 7/8/90

MASON CJ: Well, I do not know how the comments came to be

there but there are markings in the margin with
heavy ticks. There are comments against other
passages that indicate that the commentator did not
think much of them.

MR KABLE: Well, I am sorry, Your Honours. I suspect what

happened was when we were in Hobart that they were
a late authority that I located and they were
handed up then and I sent a separate list of
authorities in and I am sorry, Your Honour, I - - -

MASON CJ: Yes, it is said on the first page that the copy

was made by the University of Tasmania Library and,
perhaps, the comments emanate from some law student
there.

MR KABLE:	No, I would have to take responsibility but the date, at least, confirms the excuse, Your Honour;
it is 2 February, 1990 and I am sorry, I hope there
is nothing too disrespectful among them.

MASON CJ: No, certainly not.

MR KABLE:

But they are the passages, if it please

Your Honours, that I would refer to in Hill. Now,
of course, that is the most significant case in topic of - Your Honours, I do not propose to take the Court through the next two authorities referred

to on my list. If the Court wishes to have regard
to them, it no doubt will. They precede Hill and
are examples of the propositions for which I
contend.
Now, Van den Hoek (No 2) was the Court

of Criminal Appeal decision subsequent to the case
of Van den Hoek being resolved in this honourable
Court. The reason that I have referred the Court
to Van den Hoek (No 2) is because His Honour the
Chief Justice and Mr Justice Brinsden at the passages noted in the written submissions accepts

the Camplin definition of the ordinary person as
being that definition of the ordinary person to be
applied pursuant to the provisions of the
Criminal Code of Western Australia and
Their Honours take that step at the pages referred
to and I would not seek to read those passages
aloud to the Court.
Further examples of that being accepted by the

Court of Criminal Appeal of Western Australia as
being the law are Roche and Censori and a reading
of Mr Justice Brinsden in Van den Hoek discloses
that His Honour also refers to Hodge and it would
seem without doubt that the Camplin ordinary
person, if I can so call somebody, is the nature of

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the ordinary person in respect of whom the jury is
directed in Western Australia when cases are
determined pursuant to the relevant provisions of
the West Australian Criminal Code and I would not
wish to say any more about that. There are some
differences in the Code; they are self-evident,
particularly section 245 which creates certain
relationships between parties who may or may not be
provoked but to go through those is not to the
point of this case or the position in this case
that I am currently at.
In Queensland, the case of Reg v Rankin,

(1966) QWN 10, is cited as being a case relating to
a murder in an Aboriginal area. There is just a
brief report where His Honour Justice Campbell in
the second of the two paragraphs indicated that he
proposed:
To direct the jury that the question which they must consider is whether the provocation was sufficient to deprive an ordinary aboriginal who lives in an aboriginal settlement of his power of self-control.

And, it is observed that:
A cross section of such aboriginals appeared before the jury and gave evidence.

By far the most informative of the cases relating to Aboriginals are the Northern Territory ones,
which I will come to in a moment. Now, in Queensland, as Your Honours' knowledge
of the law and as Your Honour Chief Justice Mason
said in - - -

McHUGH J: Well, just before you leave Rankin, supposing
what the Court was concerned with was some
foreigner from some part of Asia, how would the
jury be able to assess whether he acted as an

ordinary Asian, of that particular class?

MR KABLE: That raises a really difficult question. I was
last night, when thinking about this, reflecting on
what would happen if you made a disrespectful
remark to somebody about the current Middle East
crisis, when they had particularly strong feelings
on one side or the other and it induced somebody to
kill someone and how would that fit into what I am

saying and it would fit in in this way: that in
order to assess the gravity of the provocation, you
have got to take regard to those facts and that is
all I can answer Your Honour and that seems to be
what is done in these cases I am referring to. It

Stingel(2) 30 7/8/90
might seem far fetched; the Code was enacted in
1924. It has not been touched since.

McHUGH J: Well, I think I am probably in a minority of one

about this but I must say my whole approach to the

. subject seems to be different. What about the
words "of such a nature" in subsection (2)? The
section does not say "any wrongful act or insult
sufficient to deprive an ordinary person"; it says:
Any wrongful act or insult of such a nature -

and that seems to indicate that you have to
characterize the act and then say, "Upon that
characterization of the act would it be sufficient

to deprive an ordinary person". I do not see why
you have to impute whether the person is a Chinese

or Aboriginal or anything else. You just say if it
is an insult about Chinese, say, "An insult
concerning a person's nationality would be
sufficient to deprive an ordinary person of the
power of self control". I mean, it is not very
favourable to you, I appreciate.

MR KABLE:

No.

I suppose the answer ·to Your Honour's

question would arise this way, because the accused
in that case would seek to give evidence that the
particular insult was hurtful for A, B, C, D, E, F
and G reasons, which evidence may or may not be
acted on by a jury.
If, as I understand Your Honour's question,

that issue and that evidence were not relevant to
the adjudication which was to be made, the evidence
would, therefore, be inadmissible. There would be,
therefore, a need for a ruling at that stage;
whether the person we are discussing can say to the
jury, "Look, I lived in X place for all my life.
This particular insult has this fact; therefore, it
is of such a nature as to deprive an ordinary
person like me and make me go 'right off'".

McHUGH J:

You say "an ordinary person like me".

You see,

the problem about this section and similar sections
is that it assumes that an ordinary person was a
white Australian of English, Irish or Scottish
stock, and it is unworkable in a pluralistic
society.

MR KABLE:

That is exactly the problem and I am the one who

is trying to put the square pegs into the round
holes, if it please Your Honour, because that is
exactly right. It is unworkable, it has not been
looked at, it has not been brought up to date, but
the fact that the common law has at least tried to
maintain some dynamic approach and flexibility, and
the fact that I submit that you can utilize the

Stingel(2)

7/8/90

common law, is where I come from, but it is a
classic example of the difficulty.
Can I just go back to one step. It is a

section which is a concession to human frailty by
definition and it is a section which still creates
a very serious crime but also was enacted at a time
when there was a death penalty and still exists

when there is a mandatory life sentence. No doubt
all of us in this court room are aware of the
powerful writings that say that perhaps provocation
should go and perhaps it should be a matter for
sentencing and His Honour Mr Justice Murphy in
Victoria in Voukelatis spent some time pointing out
just the extent to which provocation had become

fictional and out of touch. I do not quarrel with
that debate, but - - -

MASON CJ: We are not concerned with that.
MR KABLE:

No. I am only trying to answer His Honour. I am

sorry, Your Honour, but that is the problem. I
have got to try and give meaning to the section.
The answer to Your Honour's question is that the words "of such a nature" require some sort of
assessment because you cannot have the insult
in vacuo. That is the answer I give to Your Honour
as to the section as it is drafted.

BRENNAN J: But the underlying theory of the section is that
there has to be some distinction drawn between
yielding to provocation when ordinary people would
not yield to provocation and yielding to
provocation in a way that is criminally culpable.
Then, if that is the underlying theory of the
section, must one not forget completely
idiosyncracies of the accused at the stage when one
is endeavouring to assess this fictional question
of whether an ordinary person would, under the
sting of such an insult, yield to the provocation
and commit the crime?

MR KABLE:

My answer to Your Honour would be that one

cannot arbitrarily limit what facts you are going
to take into account in assessing the gravity of

the insult or the wrongful act. One can limit what
facts you will take into account in assessing the
response, but given that it is ameliorating in its
nature, then it is even more artificial than what
we are talking about to say, "We are only going to
take into account some factors that let us
understand why it was a wrongful act or insult".
That is the answer that I would give to Your Honour
to that question.

Stingel(2) 32 7/8/90
Your Honours, I did not propose to refer to

particular passages at this stage in the Northern
Territory and Papua New - - -

MASON CJ:

No. There is no occasion to do so.

MR KABLE:

No.	I wanted to make point and that is that

there is a unanimity of approach in all the cases
that I refer to under the headings of each of those
territories, as they then were, and that is that
the person who is asserting the benefit of
provocation was, to use Your Honour
Justice Brennan's phrase, "the ordinary person was
put in his shoes", and that was the direction given
in all of these cases and the reason I refer to
them is to disclose that the exterior circumstances
argument can have no place in principle or logic.
Now, the next passages to which I refer can be

dealt with somewhat briefly. The proposition that
I put is that if, as a matter of straight
interpretation of the words of the section the
Court does not accept or act upon what I have
submitted, then commencing with Justice Dixon in
Packett and going through a number of cases, there are statements that the Code did no more than enact the standard existing in 1924 at common law and the
next point is that in Tasmania Camplin was sought
to be distinguished as being based upon peculiarly
the English section of the Homicide Act but that
distinction is not one which has been acted upon in
the common law jurisdictions and that in particular
in Victoria and Australia it has been accepted that
Camplin states the common law as to the issue
currently under discussion.
I refer to the various authorities to that

point and I do not propose to read passages from

them. I have made available one additional South
Australian authority called Earley hopefully

unmarked, Your Honours, 20 March 1990. It is
unreported, 20 March 1990.· · Might I invite

Your Honours to have regard to Chief Justice King
between pages 4 and 7 and Justice Olsen, page 11 as
an example of the extent to which the common law
has followed Camplin and as an example of the
extent to which the common law is leaving issues
such as that, the subject of debate in this case,
to the jury.
Caine, an unreported Victorian decision which

I also refer to in the written submissions, I
invite the Court to use for the same purposes
because they provide examples within two or three
months of where we are, ie now, of the type of
cases that are being left.

Stingel(2) 33 7/8/90

TOOHEY J: Mr Kable, what is the submission at this point;
is it that the common law has something to
contribute to the meaning of expressions in section 160 of the Code, or to doctrines of provocation, or what?

MR KABLE: The submission precisely put is that the phrase
"ordinary man", when enacted, embodied the standard
of the common law, that that phrase has been
subsequently explained, and that the meaning now to
be attributed to that phrase in the Code is the

common law meaning as now explained. So I do not
invite the Court to go outside section 160 to find

provocation. I submit that it has been
authoritatively determined - it can be argued that
it is authoritatively determined that "ordinary
man" when enacted meant what the common law said it
meant; the common law has since been explained to
disclose that it means a vastly greater and wider meaning; that it is legitimate, therefore, to use
the meaning as now explained and that that is one
of the manners in which the flexibility is
retained.
It is acknowledged in that submission that

section 160 is definitive of the circumstances
giving rise to provocation it is as to the meaning
of that particular word.

TOOHEY J: Yes, I understand, thank you.

MR KABLE: To take it just one step further in answer to
Your Honour, it is, by having a look at these two
recent decisions that I have cited, being the
unreported case in South Australia of Earley and
the one of Caine in Victoria, that we see just how
far the phrase "ordinary man" has been explained by
the common law.
The New Zealand situation - that is put there for two reasons, for the sake of completeness and
because pre-Camplin but acted upon subsequently in

Newell, some of the observations in McGregor, which
is the New Zealand case, have been seized upon as
explaining the common law and those observations
relate to the issue of whether the characteristics
which are sought to be attributed are transient or
permanent. But, as I said earlier in answer to
Your Honour Justice McHugh, it may be that by
hatching on to "characteristics" rather than using
the phrase "life experiences", we miss the issue
but it is for that reason - the New Zealand section
is quite a different section and ordinarily would
not have required the attention of counsel or this
Court, but it is the fact that it has been
latchedon to in England by the Court of Appeal in

Stingel(2) 34 7/8/90
Newell subsequent to Camplin that I refer the Court
to it.
I do not propose to say anything further about

those other jurisdictions. MacEoin - if that is

the correct pronunciation of the Irish case -
blatantly says that no longer will an objective
test be the law in Ireland and they replaced the
objective test with a subjective test - that
authority is given to the Court and the New South
Wales provision, of course, is somewhat different to the others and I have referred to two cases.
Adjacent to the number 4 in my submissions,

Iseek to distinguish between the ordinary man and the reasonable man and I find support for that
distinction in the passages of the judgments there
referred to and also in Chief Justice Barwick in
Johnston at page 635.
The next point I would wish to make is the point I was raising in answer to
Your Honour Justice Toohey's question. If it be
correct that "ordinary man" when enacted in 1924
embodied the standard of the common law and if
subsequent to that time that notion has been
explained in a different fashion to that existing
at the time of enactment, then the meaning to be given to the words is the meaning at the time of the determination of the case.

TOOHEY J: But would it matter in that respect, Mr Kahle,

whether or not the Code had embodied the common
laws as it then stood? If you have a particular
word or expression in the Code, the meaning of
which is not determined by the Code itself, why
should you not look to other decisions in which
that expression has been discussed as long as they
are relevant?

MR KABLE:

There is no reason why one should not. As I read

the decisions of this Court as to the
interpretation of the Code, one has regard to the

ordinary meaning but if a particular phrase, to use

the phrase that I think Chief Justice Barwick used
in Vallance, has become known as a law word or a

word of technical meaning and if it is not clear

precisely what it is to mean in the section, then

one has resort to the common law. The critical

point I wish to make is that if you are going to go

to the common law as it was in 1924 and if that

common law is explained as meaning something

different later, then the meaning to be attributed

to the word today is the later exposition.

TOOHEY J:

I just have some difficulty with the notion of

going to the common law in that situation. If you

Stingel(2)

7/8/90

are trying to understand the meaning of a word and
it is a word that has been discussed by other
judges in other context that have some relevance,
why should you not go to them?

MR KABLE: The only answer I can give to that question is
that as I understand the principles set out by this
Court as to the interpretation of codes, if you
have got something that is a law word then that is
the source to which you go if the meaning to be
attributed by the ordinary use of English is not
apparent.
The point I seek to make is that this is

thus - as to this part of the argument - not an
argument as to statutory interpretation because it
is a condition precedent to the relevance of this
argument that there be an authoritative dermination
that the word in question does mean what the common

law said it does. If that is not the case we do
not have to consider the point I just made.

But if there is an authoritative

determination, either prior to or as a result of
this Court that "ordinary man" in 1924 did mean
what the common law said it meant, then to
interpret it today my submission is we look at what
"ordinary man" means today in the common law. If,
however, it be thought that "ordinary man" can be
interpreted without resort to the common law then
one does not have to have regard to the
propositions that are contained adjacent to No 5 on
the page that I am referring to.
There are two cases in Queensland and there is

a paucity - not surprisingly, perhaps - of
authority as to what happens where the common law
has been authoritatively pronounced as enacting the

common law when the common law changes. I have
looked - because as I see the question, the way I
am articulating it, it is a different question to

merely interpreting the statute.

BRENNAN J: I am not following what the distinction is
between ordinary and reasonable for the purposes of
your argument.

MR KABLE: "Reasonable" is the person who acts on reason, is
a mythical creature who acts on reason, is probably
a creation in the early days of someone who

necessarily acted rationally. "Ordinary" is what
the jury finds it to be in the particular case.

DAWSON J: Surely in this context a reasonable person is a

person with reasonable self-control?

Stingel(2) 36 7/8/90

MR KABLE: Well, there may be a big difference between

ordinary self-control and reasonable self-control,
that is the point that I am making. That the words
"ordinary person" - once you get "reasonable" your
direction to the jury requires them to make an
adjudication as to the reasonableness of what
occurred. Reasonable according to whom, what and
where. Ordinary predicates that it can be anyone
that the jury so find, that is the - the reasonable
man never does anything wrong, probably. He acts
always with prudence, he ought to have known, for
the purpose of 157(l)(c) that certain acts of his
will cause death and for the purpose of the law of
tort and contract has a spectacularly high

foresight. The ordinary man suffers from residual
human failings in a variety of areas and is
acknowledged at least in the passages to which I
have made reference to be a more appropriate person
to describe when one is talking about the common
law of provocation.

BRENNAN J:

In this context, if one were to refer to the

"reasonable man" ex hypothesi he is somebody who is
capable of losing his cool otherwise he would not
be in the section.

MR KABLE:

Yes.

The question is, given that assumption - I

suppose the way I am putting it is there are more
people who are likely to come within the section who are ordinary than reasonable. I see it as a
limiting word.

BRENNAN J:

Is your proposition this, that in dealing with

the construction of the section one is concerned
not with·the application of cold reason to the
facts but with the ordinary emotional reactions?

MR KABLE:

I would put "potentially" in front of "emotional"

and then accept the way Your Honour's has
articulated it because it is a question of
sufficiency, not necessity. So the jury has got to adjudicate on the potential, not the actual. So I
would acknowledge the way Your Honours - put the

word "potential" there and the reason I would
interpolate that word is because it is a question
of sufficiency, not necessity.

MASON CJ: But they are both abstract concepts, probably

intended to denote the same kind of personality.

MR KABLE:

I acknowledge Your Honour.

There is an element

of averaging in them, I acknowledge that.

MASON CJ: But, after all the word "ordinary" used is a word

used in the section and why should that not be used
for the purpose of - - -

Stingel(2)

7/8/90

MR KABLE: Your Honour, I concur in that, but I just wanted
to ensure that our ordinary man in section 1602)
was not held to be a reasonable man if a reasonable
man means what I thought he meant which is

something more than an ordinary man. There is no

more to it than that. I cannot put it any other
way than that. My perception and (the submission I
would make as to a likely jury's perception is that
ordinary - an ordinary man's range of conduct is a
wider range, or range or responses than that of a
reasonable man and it is the greater that I am
seeking.

MASON CJ: Well yes, I think you have made your point clear.
MR KABLE: Thank you. I do not propose to say anything else
about the Code. That brings the question of what I
call the "frozen in time" argument - that brings us

on to "wrongful act or insult". The first
submission I make is that they are not exclusive in

their description of conduct or utterances. The
two Tasmanian decisions there do not in any way
attempt to define the concepts. There has been no
definition in Tasmania.
Your Honours will be aware that I am not in

this Court relying upon the argument that was put
in the Court of Criminal Appeal that the conduct
between the deceased and Miss Goss amounted to a
crime. It is arguable that the conduct did amount
to breaches of various minor provisions of the
Police Offences Act.

TOOHEY J: Mr Kable, leaving aside the question of what is
meant by "wrongful", what do you mean by the
proposition that "wrongful act or insult" is not an
exclusive categorization of conduct?

MR KABLE: What I mean is that one cannot compartmentalize
them so that all insults are in this hand and all
wrongful acts are in that. There will be many
occasions where the same conduct may be properly

described as wrongful act - - -

TOOHEY J: You mean they are not mutually exclusive?
MR KABLE: Yes, I am sorry.
TOOHEY J: I see. Yes, I understand.

MR KABLE:

That is all that sentence is meant to mean: that there will be many occasions when the same conduct
could be described as either.
TOOHEY J: Yes, I follow.

Stingel(2) 38 7/8/90

MR KABLE:

And I have submitted that it is arguable that the

conduct could amount to a breach of the sections. That is not going to make a lot of difference in
this case because we are still the qualitative
words "of such a nature as to deprive" so we come
back to where we are, whether it is an insult or a
wrongful act.

BRENNAN J: Are you relying upon those sections as

establishing that it was a wrongful act for the
purposes of this section 160?

MR KABLE:

Yes.

I am saying that if something constitutes

an offence, at least that is a wrongful act, I am
not submitting the opposite, that something needs
to constitute an offence, or something illegal, but
I am saying, at the very least, if something
constitutes an offence or a crime, that will be a
wrongful act provided there is some connection with
the object or the provocation.

BRENNAN J: Is there any authority to support that

proposition?

MR KABLE:

No.

The two cases in Tasmania, Lyden, a wrongful

act was held under the old Maintenance Act, where
a - sorry, I will go back one step. That phrase
has never been definitively ruled upon anywhere
that I have located, in terms of being within this

section. Lyden was a case, if I could tell
Your Honours about it, where the trial judge found
that when you had been living with somebody for 12
months, which gave rise to a right to receive
maintenance, and you then involved yourself in
sexual activity outside that relationship, because
that might be an offence against the Maintenance
Act, that would be a wrongful act. That seems to
be so far from where we are talking about here as
to be not that much help. There is nothing helpful
in Tasmania about what the definition of "wrongful
act" is.

There is a Queensland Court of Appeal decision

which says that the word "wrongful" qualifies
"insult" as well as "act", but it does not identify
what "wrongful act" means. There is a Canadian
decision to the contrary.

BRENNAN J:

Does the Queensland decision say what "wrongful"

adds to "insult"?

MR KABLE:

No, but I am perhaps getting a fraction in front

of myself. I have not located any either
persuasive or authoritative judgments which purport

to define "wrongful act". I do not submit it is
necessary to this Court to do so for the purpose of resolving this case. I do submit that if something

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7/8/90

constitutes an offence or a crime, that will be a
sufficient condition for a wrongful act, but the
other qualifying words of the section will still
apply.

TOOHEY J:

So we can take from your answer to Justice Brennan, a moment ago, Mr Kable, that you
read "wrongful" as qualifying both "act" and
"insult"?

MR KABLE: I do not. I submit that that is wrong.
TOOHEY J: Well, I am not sure what is meant by "that is
wrong".

MR KABLE: I am sorry, Your Honour.

TOOHEY J:

You mean, it may be a wrongful act, or it may be an insult?

MR KABLE: Yes, yes. That is the submission for which I
contend, but the Court of Criminal Appeal in
Queensland have held to the contrary, but there are other cases which support the argument I put.

TOOHEY J: You mean there are decisions that say that

"insult" must be qualified by "wrongful"?

MR KABLE: Yes, and I submit that those decisions are not
correct.

DEANE J: But, is there any question here that what was said

was an insult? I mean, surely it was.

MR KABLE: I would submit that it was.
DEANE J: Well, has anybody suggested the contrary, that it
is not an insult to use this language of a person?

MR KABLE: It was suggested before the trial judge,
Your Honour, and as we are now here and

Your Honours -

DEANE J: But the trial judge did not hold it was not an
insult and nobody has ever held that.

MR KABLE: No, His Honour held it was an insult.
DEANE J: Yes. And, whether it is an offence under that
section 12 is not going to affect the case once
you - - -

MR KABLE: Once you have got an insult, no.

DEANE J: accept that it is an insult.

MR KABLE: No, I agree with that, Your Honour.

Stingel(2) 40 7/8/90
MASON CJ: Well, we can move on, then. If this is in
contest, you can deal with it in reply.

MR KABLE: If it please Your Honours. My submission is that
"wrongful" does not apply to - well, that is the
point I wish to make and I will not take that
further at the moment then, bearing in mind
Your Honour the Chief Justice's observation. If

Your Honours would bear with me for a moment. Why,
I suspect, the matter becomes of particular
relevance - and I do not want to do a disservice to
the argument I want to put - is because of
section 160(4) and, again, I am conscious that I
can deal with it by way of reply but the question
of whether or not the words "legal right" in
section 160(4) refer to something that one is
positively authorized by law to do, for example, a
process server, a policeman, or merely to that
which does not constitute unlawful conduct. That
was raised by His Honour Mr Justice Nettlefold;
that was one of the significant influencing factors
in His Honour's decision.
There are two cases that I would give

Your Honours the reference to which are not in the
written submissions as to that and I will then

leave it by way of reply if it is raised. They are
Galgay, 6 CCC (2d) at page 539 and Haight,
30 CCC (2d) at page 168 and I will say no more at
this stage about the meaning of "wrongful act" or "insult" or section 160(4) until I have heard the
Crown's submissions.

BRENNAN J: Could I just ask you one question about

subsec~ion (4). Do you say that that applies to
insults as well as acts?

MR KABLE:

I say section 160(4) only applies to something

that one is positively authorized to do by law, ie,
a process server, a policeman directing traffic,
that type of thing but it does not apply to people
- it does not apply to this case, is what I say,
without seeking to be exhaustive.

BRENNAN J: You mean it does not apply to the exercise or
freedom to do something?

MR KABLE:

That is correct, yes, and there is a paucity of

authority as to that area but bearing in mind
His Honour the Chief Justice's observations, I will deal with it by way of reply subject to the Crown's
submissions.
As to proportionality, the primary submission

I make is that there is no provision in the Code
which allows the question of proportionality to be
taken into account either as a threshold question

Stingel(2) 41 7/8/90

or otherwise by a trial judge making an adjudication pursuant to section 160(3) or as a
separate issue and I have already canvassed some of
the submissions I would make in answer to
Your Honour Justice Deane. There is a decision as
to the place of proportionality in the Codes and
that is Sreckovic -

DEANE J: Just to understand your submission, you say that

the power of self control, or the loss of self
control, is unrelated to what was done so that if
the ordinary person would lose self control to the
extent of reacting by abusing somebody, it is
irrelevant to say that the ordinary person
certainly would not lose self control to the extent
of stabbing somebody to death?

MR KABLE: Under the Code, yes, Your Honour. It becomes
relevant only that first question, it is not a
separate matter.

DEANE J: So, the query is whether the ordinary person would
lose self control to any extent at all, because
unless that is the question, proportionality must
come in.

MR KABLE: I am not submitting that the jury are not
entitled to take into account the response to
whatever occurs.

DEANE J: But must not the question be whether the act or
insult is of such a nature as to deprive an
ordinary person of the power of self control in a
relevant sense, that is, to an extent which would
involve loss of self control, in this case, to an
extent covering stabbing of somebody with a
butcher's knife?

MR KABLE: It would. Can I answer Your Honour's question
this way. His Honour Mr Justice Nettlefold in the
Court of Criminal Appeal held that no person could respond as did this accused:

DEANE J: No ordinary person?

MR KABLE: No ordinary person, that is that no one insulted
as this ordinary - specifically His Honour made the
observation that it would be a very rare occasion
when an insult could give rise to provocation
causing death.

DEANE J: But that jumps, I mean are there not two questions
involved here: one is whether the reference to loss
of self control in section 162 poses a question of proportionality for the jury; the second question
is, if it does, to what extent does the existence
of that jury question of proportionality operate at

Stingel(2) 42 7/8/90
the stage when the trial judge is determining

whether there is something to go to the jury. Now,

I follow what you have written here. You say that
there is not even a question of proportionality for

the jury. Now, that was what I was querying.

MR KABLE:

Not as a separate issue, ie, if you find that to

respond to an insult by killing is disproportionate
in that sense, without regard to all other factors,
that means there is no provocation.

DEANE J: Well, that might be so, but it will remain that in

these cases the critical question in the objective
test will ordinarily be equivalent to the
proportionality between the insult and the
reaction.

MR KABLE:

Yes, but in the sense that once you have a

documented loss of control, it is at that time that
you have regard to the response and to isolate,
merely, that which is said to be provoking and the
method of retaliation to that provoke, and I use
retaliation in a loose sense, rather than the fact
of retaliation, distorts the test.
There is a loss of control; the loss of

control is productive of a response, an out of
control response by definition because otherwise
the section does not apply. Therefore, once we are
responding out of control, does it matter - and I
am posing the question rhetorically, I suspect,

does it matter whether you shoot, stab or whatever.
It is the fact that the provocation is productive of the loss of control which causes the response; in this case, it is the stabbing.

DEANE J: But, what - I mean, the objective test will be, if

the question is a relevant loss of power of self-
control, could the insult or would the insult have
induced an ordinary person to stab the insulter
with a butcher's knife? Well, that immediately
makes the most important question, the

proportionality between the insult and the
reaction.

MR KABLE:

The way Your Honour has just articulated it, I do

not think I quarrel with. What worries me about
proportionality is the way it has been used in the
Court of Appeal where there is an assertion that
(no words are going to result in killing - we look
at words - I suppose what I am saying is we are
divorcing proportionality from the facts of the
case; that may be where I am being less than
precise in answering Your Honour but that is
certainly what I submit the error
Mr Justice Nettlefold made and what I am suggesting is that, again, when the jury go into the room,

Stingel(2)

7/8/90

they are told to take all those things into account
but they cannot just determine it on whether
whatever the retaliation was bears no proportion
whatsoever to that which is said to be the
provoking incident. It is bearing the test back
into the ordinary man's response that is the

critical issue. I hope that that answers - - -

TOOHEY J: Just on that point and by way of information,
Mr Kahle, how does the Code deal with self-defence? If you could just take us to the section or is it a
defence that is preserved under section 8

MR KABLE:

No, the answer to Your Honour is, it used to deal with it in a very complicated fashion but two years

ago we enacted a section identical to the now reads - - -
TOOHEY J: Well, there is no need to read it.
MR KABLE: If Your Honours have it -
TOOHEY J: That is enough for my purposes, thank you.

MR KABLE: Section 46, I am sorry, Your Honour. It was

enacted in 1987; Act 26 of 1987. I do not know if
you - - -

TOOHEY J: Do you mean before that the defence had to be
garnered from section 8 of the Code?

MR KABLE: No, it was then sections 46, 47 and 48. There
were a number of provisions that related to
provoked and unprovoked assaults and what sort of
force one could use depending upon various things
and there is now a simple section.

TOOHEY J: I see, yes. Thank you. When did you say those
amendments came into force, Mr Kahle?

MR KABLE: It is Act No 26 of 1987 and it is only four

lines, Your Honour. Perhaps I could read it to
Your Honour.

TOOHEY J: Thank you.

MR KABLE: The law now in Tasmania as to self-defence says
this:
A person is justified in using in defence of
himself or another person such force as in the
circumstances as he believes them to be, it is
reasonable to use.

So, there is a subjective test as to the
circumstances and an objective test as to the

Stingel(2) 44 7/8/90
response and all the complicated sections have been
removed and that is the New Zealand section.

McHUGH J:

Thank you.

Mr Kable, in answering the question

whether the insult or wrongful act would have
deprived an ordinary person of the power of self
· control to the extent that he would have stabbed
the deceased, do you take into consideration the
time which has elapsed between the insult and the
stabbing?

MR KABLE:

You do, and one must be extremely cautious

because it is a short time. Estimates as to time
in that sort of stressful environment are
notoriously unpredictable so one must be very
cautious. If it is a matter of minutes, it is X
drags of a cigarette so, yes, inevitably one must,
with that caveat, be very cautious.

TOOHEY J: Well, one must, I imagine, because the Code uses

the expression "sudden".

MR KABLE:	Yes, but
TOOHEY J:	You do not have to introduce any sort of doctrine

to arrive at that.

MR KABLE:	No, you must take it into account.
McHUGH J:	Now, I was not asking you about the offender; I was asking you about the hypothetical ordinary
person.
MR KABLE:	I am sorry, Your Honour, I must have

misunderstood Your Honour's question.

McHUGH J: Well, what I am asking is this: you have got to

ask yourself this objective question as to whether
the insult would have deprived an ordinary person
of the power of self-control to the extent that he
would have stabbed somebody; you agreed with that?

MR KABLE:	Yes.
McHUGH J:	Now, do you take into consideration the time

which elapses between this, in this hypothetical
illustration?

MR KABLE:

Yes, you do, because - well, you must and you do

and a question might arise whether the effect of
the insult is exacerbated by the passing of any

time or lessened and you will only be able to

answer that question by having regard to the
antecedent conduct.

McHUGH J: But, in determining objective question, you

accept then that you - you consider the insult and

Stingel(2)

7/8/90

you have also got to consider whether an ordinary
person, having walked back to his car - - -

MR KABLE: Yes, but subject to my prior argument.
McHUGH J: Yes, thinking about it, yes.

MR KABLE: In all the circumstances of those people, yes.
That is implicit in my answer to Your Honour. If I
can just take one step further: that is why we say
that is important in this case given the long
history. That is more likely to cause the stress
to increase than decrease whereas there will be
occasions when an insult out of the blue by someone
in respect of whom there has not been long
interaction between the parties the effect of it
will disappear and that, again, I would say,
critically becomes a jury question.
I was dealing with the question of

proportionality. My submission is, and I do not
propose to read passages, that whilst not
authoritative in this Court, the judgments of the
Court of Criminal Appeal in Western Australia in
Sreckovic and Linton - that should be (1949) OR, not VR, I am sorry, Your Honours, Ontario Reports.
I do not propose to read passages from either of
those cases, I adopt the reasoning in each of them.
Linton is very short - and Chief Justice Jackson
and Justice Burt.
As to a matter of principle, I submit that the

defence of provocation is one of excuse not
justification supports the argument that
proportionality is not taken into account because
the not taking of it into account does not lead to
what is sometimes called a "floodgates argument".
Secondly, that provocation is not concerned with
the worth of the victim but is directed to the mind
of the actor and that that provides a further
reason why it ought not to be taken into account

and I then set some cases and aspects where I
submit that it is no longer a separate test at
common law but is merely a matter to be taken into
account.

BRENNAN J: Mr Kable, if we come back to putting oneself in
the shoes notion, putting oneself in the shoes,
what question is asked?

MR KABLE: By the jury?
BRENNAN J: Or by the judge if he has to do the job?

MR KABLE: As to proportionality?

Stingel(2) 46 7/8/90

BRENNAN J: Well, what question. If not proportionality,

what question?

MR KABLE:

The very question Your Honour asked right back

earlier in the morning when Your Honour articulated
a question; not the one that I stuck "potentially"
in but the one earlier, that question, and by way
of explanation the jury is told that it will look
at these facts in answering the question that
Your Honour has posed because the Code is expressly
silent on proportionality.

BRENNAN J: Putting oneself in the shoes, does one not ask

then, "This wrongful act or insult, with all its
stinging and heinousness, is it such as to deprive
me, an ordinary person, of the power of self-
control" in respect of what?

MR KABLE:

In respect of the action undertaken - one must be

very careful with the use of the word "me". I do
not wish to be acknowledging the appropriateness of
"me" in the question but putting perhaps
parentheses around "me", leaving an "ordinary
person", the words that I would put at the end of
that would be to "do the act done".

BRENNAN J: Then, taking the act or insult with all its

sting and heinousness, could it deprive the
ordinary person of a power of self-control so as to
permit him to do the act that was done?

MR KABLE:	So as he did the act that was done?
BRENNAN J:	So as to lead him to do the act which he did?

MR KABLE: Or, more definitively, to do the act, yes.

BRENNAN J: That is a straight proportionality test, is it

not?

MR KABLE:

Not in a sense in which that phrase has

historically been used as a separate test in the

law of provocation.

BRENNAN J: Forget how it has been put before. In fact, it

is a proportionality test, is it not?

MR KABLE:

It involves notions of proportionality, but what

I am trying to be very careful about is that that particular word and the word "test" appended to it
had a particular meaning until Johnson's case as I
read the cases. Johnson's case said no, it is not
separate. It is just a matter for the jury to take

into account. I am not quarrelling with that
concept, or I sought not to in answer to
Your Honour Justice Deane. But it is the nature

Stingel(2)

7/8/90

that it is a separate test rather than - the way
Your Honour has described it one could say of the
test Your Honour just articulated that it has a
component of assessment of proportion, but that is a very different thing to what the proportionality test has been described as in the cases. That is
why I am being very careful about it, and saying
the Code has been cautious to keep it right out and
it has no place. That is why in Western Australia
and in Canada it has been determined for those
jurisdictions, and unless and until this Court has
to consider it it has no place there, and at the
common law it has also gone in the way in which I
was using the phrase. That is the answer I would
make to Your Honour's question.
As to the next series I do not propose to go

through all the tests to be applied. I do wish to

refer, Your Honour, to those two brief cases. I am

now at Eon page 4 of my submissions. The first
proposition appearing there is that section 160 was
enacted in 1924 and when enacted it did not have
the words "and the question whether any matter
alleged is or is not capable of constituting
provocation is a matter of law" in it. Those words
were added in 1934 which preceded Packett, and as I
indicated to Your Honours before, and as I say in
the written submission, Mr Justice Clarke in the
Tasmanian Court of Criminal Appeal seemed to think
that the reason for the enactment of the words was
to - let me get it precisely right - restore the
law as set down in Thorpe's case because it was
thought that Jackson's case changed the law, and it
was thought that the change was that no longer did
there reside in a judge a power to indicate that
the facts of a case did not give rise to
provocation in the traditional way in which that
had been used.
Now, whether that is correct we cannot be any

the wiser because the only things we have that are
written about that appear in that one page in those

two cases.

DAWSON J: Is it a different question from the question
whether there is evidence upon which the jury could
find provocation? It would seem to be.

MR KABLE: It would or would not seem to be?
DAWSON J: It would seem to be a different question.
MR KABLE: That is the reason that I have referred
Your Honours to that passage because if
Mr Justice Clarke is right, then the reason it was
inserted was because it was thought that Jackson
changed the law by removing the proposition just

Stingel(2) 48 7/8/90
articulated by Your Honour, that is, that that no
longer existed. That was what Jackson's case in
New Zealand was thought to do, and therefore it was sought to restore that position to the Code so that
if there was not evidence of provocation, then the
judge could take the issue from the jury. What, in
fact, has occurred again is the reason we are
here - because it has been argued that it has
imported a qualitative notion and, of course, the
origins of that qualitative argument are
Mr Justice Dixon's judgment in Packett. But as I
have said previously, in my submission His Honour
resiled from that in Parker, and at page 616 in
Parker His Honour posed the correct test.
So in answer to Your Honour, the reason those

words were added was to restore the position to
just that articulated by Your Honour according to
Mr Justice Clarke in the Court of Criminal Appeal

in Tasmania in Packett. We cannot be any wiser
about that because there is nothing else to help
us, unfortunately. But that at least is an
explanation in a judgment which may be of some
assistance. My researches at the archives and other places have not disclosed anything which
would be of any assistance, and I do not know
whether my friend has or not. As to the test -

MASON CJ:

Mr Kable, it would be convenient now to adjourn.

We will resume at 2.15.

AT 12.48 PM LUNCHEON ADJOURNMENT

Stingel(2)

7/8/90

UPON RESUMING AT 2.17 PM:

MASON CJ: Yes, Mr Kable.
MR KABLE: May it please Your Honours. Might I give
Your Honours two references that I did not give Your Honours this morning, without referring to
passages from them, which relate to the question of

wrongful act. The first is a case of Murdock,
40 CCC 103, and the additional reference relating
to the meaning of "insult" is Taylor,
(1947) Can Sup Ct 462, and I do not propose to

develop either of those. They are not in the
written submissions and I wish the Court to have
them. As to Murdock the relevant pages are 103 and
112.
Your Honours, before the luncheon adjournment

I was coming to that part of my argument which

relates to the test to be applied. The distinction
I seek to draw in this part of my argument is the
distinction between an adjudication by a trial
judge as to what an ordinary person would do and an
adjudication by a trial judge as to what a jury
could find an ordinary person might do, and it is
the submission I make in this case that His Honour
the trial judge, and more particularly the Court of
Criminal Appeal, in deciding this case, erred in
that when they applied the law to the facts
Their Honours posed the question what would an
ordinary man - whoever, or whatever that may be in
the given case - do, not what could a jury find
that an ordinary man might do.

GAUDRON J: Is there not an anterior problem, Mr Kable,
from your point of view, and that is that both the
trial judge and the Full Court characterized the
nature of the insult, which, of course, is what the
section directs, and they characterized it in a
particular way.

MR KABLE: Yes.

GAUDRON J: Is that not really your complaint in this
matter?

MR KABLE: Yes, Your Honour, that is my complaint because

they put one colour only on the facts. As
Your Honour has described, they did characterize
of Criminal Appeal, did not examine every
it. It could have meant a variety of things.
permutation and combination.

Stingel(2) 50 7/8/90

GAUDRON J: What you have to say, have you not, is that they

were wrong in not finding that it was capable of
bearing a particular nature.

MR KABLE:

Yes.

I exactly agree with Your Honour, and I

agree that that is an anterior question to the one
that I am posing.

GAUDRON J: But that can be your only complaint, can it not,

in this case, because if the actions are
characterized simply as the use of swear words, for
example, as is more or less what happened, then the
conclusion that an ordinary man - - -

MR KABLE:

Yes.

GAUDRON J: - - - could not have or would not have reacted

in a particular way is inevitable, is it not?

MR KABLE:

If that were the sole characterization of them

then that would make a very strong argument to that
effect, yes, and that is a point that I must deal

with first. I was going to do it the other way

round, but yes. My quarrel with His Honour the
learned trial judge and Their Honours in the Court
of Criminal Appeal is exactly as articulated by
Your Honour, and having complained of that, then I
complain of a subsequent error because whatever
characterization they ended up putting upon the
facts, they limited the version of facts that they
considered, in the fashion Your Honour described,
and then applied the test of would an ordinary man
so react to that limited so, I submit, there are
two errors: there is the error that is exampled in
Your Ho~our's question and there is secondly, their
approach to that set of facts erroneously
articulated.

GAUDRON J: Well then, the first question directed as to the

first aspect of whether or not it is capable,
et cetera, really is something very similar to
whether the question of law that arises as to
whether words are capable of bearing a defamatory

meaning, is that right, something similar to that?

MR KABLE:	The reason for my hesitation is because of the lack of knowledge in the area of defamation,
Your Honour, and I do not want to assent to
something that I do not fully understand.

GAUDRON J: Yes, well I follow that, but there seems to be

some difficulty in the subsection that it does not
direct a finding of fact as such, and it does not
direct an inquiry as to whether or not there is
evidence as such, but something else, whether it is
capable, and when you look at the subsection it is
whether it is of such a nature as to be sufficient.

Stingel(2)

7/8/90

MR KABLE:

Yes, that is correct and one of the points that I was going to make shortly was that particularly

well exampled in Moffa in all judgments is the proposition, if I may call it the jury divining, ie
what facts or what test the jury are likely to do,
is a very dangerous and speculative task at best
and, therefore, there is a need to be satisfied
that the jury could not have got to that stage.
And that is particularly referred to in all the
judgments, and I was going to come back to that.
His Honour, the learned trial judge,

characterized the words as "offensively
disrespectful" as an angry demand for privacy.
Now, that is only one meaning, they could have been a very nasty insult; they could have been
aggravated by the continuation of overt sexual
conduct; there is a variety of permutations and
combinations all of which were put to His Honour,
and I will not read them aloud to Your Honour, but

they are at page 537 of the appeal book. It was
put to His Honour the trial judge that a variety of
permutations and combinations of the facts, and the
conduct not only of the deceased but of the girl
might be provocative and it was - and I use the
word respectfully, one of the complaints made about
His Honour was that he arrogated to himself the
jury function. That is the answer that I would put
to the qust to the question.
At the top of page 5 of my written

submissions, which is the position I am now at, I
submit that the nature of the provocation, mental
and or emotional rather than physical, is such that
a finding that an ordinary man could not, and there
is the word "so", or react as the accused did,
should be made with greater hesitation than a
similar finding in relation to a potential response

to physical provocation. And I refer the Court
there to the passage in Packett, but before going
precisely to it, I would wish to remind the Court
that Packett was resolved by the majority on the
issue that there was no warrant anywhere in the

case for a grant of special leave.
Justice Starke's judgment, at page 206, seems to indicate that there was no evidence of actual loss
of control, and the majority of the Court found, in
Packett's case, which involved two killings, as
Your Honours will remember, that there was no
warrant at all for the grant of special leave.
It was in that case that Justice Evatt made

the off-quoted observations about the gravity of the step of taking provocation from a jury: that observation to be found at 220, and at 217 is the
passage of His Honour Justice Dixon, which I
referred to earlier in the day as the oft-quoted

Stingel(2) 52 7/8/90
passage, where His Honour, at page 217 at the
bottom of the large paragraph in the sentence
commencing:
Fear and apprehension too may be elements

entering into his loss of self-control. The
reason why, in my opinion, there is not enough
in the prisoner's narrative to amount to
provocation is that there was no wrongful act
or insult which could be found to be of such a
nature as to deprive an ordinary person of the
power of self-control.
His Honour then set out some facts, and in the

passage at the bottom of the page, that is the
passage that has frequently been quoted:
But the reason why the question whether any matter alleged is capable of constituting provocation is made a matter of law lies in the main in the necessity of applying an overriding or controlling standard for the
mitigation allowed by law. At common law the
test of provocation is not whether the
occurrence is sufficient to deprive the
particular individual in question of his self-
control ..... but whether it would suffice to
deprive a reasonable man -

well, we get back to that -
This standard is embodied in the language of
the code and the court is entrusted with the
duty of ruling whether the matter relied upon
is capable of depriving an ordinary man of his
self-control.

And His Honour then observed as to the facts of the case:
It is impossible ~o hold that, upon any

interpretation of the-prisoner's story which a
jury might reasonably adopt, such a situation

could be considered to have arisen as was
capable of depriving an ordinary man of his
power of self-control.

My submission is that that observation should be
examined in the light of His Honour Justice Dixon's
observation in Parker's case, 111 CLR, at page 616.
I am conscious that His Honour was not there

talking of the Code, but His Honour was talking of
the test to be applied, and His Honour observed,
about half the way down, at a sentence commencing:

Stingel(2)

7/8/90

But on the question of provocation there has
been no decision of the jury and the question
is whether they ought to have been allowed to
decide it. Perhaps it may be said that the
question is to be considered just as if the
jury had decided it in favour of the prisoner
and, by some freak of procedure, the question
arose whether that decision could be

sustained. The point is that the issue before
the Court of Criminal Appeal was whether by
any possibility the jury might not
unreasonably discover in the material before
them enough to enable them to find a case of

provocation. The selection and evaluation of
the facts and factors upon which that
conclusion would be based would be for the
jury and it would not matter what qualifying
or opposing considerations the Court might
see: they would not matter because the
question was, ex hypothesi, one for the jury
and not for the Court.

DAWSON J: Now, is there any difference between that and
asking whether there is evidence on which
provocation could be found, any evidence?

MR KABLE: In my submission, no, but in my submission, the
former observations of His Honour have been given a
meaning differently which is the meaning that has
been attributed to them in this case.

DAWSON J: And, is there any difference in your formulation?
MR KABLE: In my formulation, no. My formulation is the way
Your Honour has just articulated it and that is
why, I submit, the section was changed and that is
why, I submit, the test, as just read out by me, is
the test. If there be a conflict between
His Honour in Packett and His Honour in Parker
then, I submit, not just because the Privy Council
endorsed His Honour's judgment in Parker but, in
any event, because of the development of the law
and because of the demonstrated cases in this

jurisdiction which are at pains to say if there is
any evidence of provocation the judge must leave it
even when all the parties in whose favour such a
direction might be made are urging a trial judge
not to, for those reasons I submit that the
articulation as emanating from Your Honour a moment
ago as set out there is to be preferred and that a
meaning of His Honour's judgment in Packett, that
there is a real quality control of the defence by
the judiciary, is not one to be given to the
section.

Stingel(2) 7/8/90

DAWSON J: Yet, in practice, that is how it works out, is it

not, or has in the past, less so nowadays than in
the past?

MR KABLE:

Less so nowadays, more so in Tasmania than any

other jurisdiction by reference to the reported
cases and importantly, for the reasons that were
raised this morning in question, where you have a
society that is multicultural - if that is the
phrase - pluralistic, so different in so many
areas, so much more importantly a jury decision.

DEANE J: But that means, if you accept that sentence, that

provocation should not be left to the jury if,
acting reasonably, they could not have found it,
which means there you have a test involving acting
reasonably that is not ordinarily open in terms of
what is left to a jury.

MR KABLE: Well, that is, of course, a refinement

and this - - -

DEANE J: No, that is what His Honour says.

MR KABLE:	Yes.
DEANE J:	The point is that the issue before the Court
of Criminal Appeal was whether, by any
possibility the jury might not unreasonably -

which means if one were to conclude that the view
was not reasonably open in this case that an
ordinary person would react in this way,
provocation should not have been left.

MR KABLE:

Yes.

I must accept that if it could legitimately

be held that no jury could find that no ordinary
person might so react - - -

DEANE J:

That is not what I said.

I said the view was not

reasonably open.

MR KABLE: Well, reasonably open to find that. One must

assume that the jury acts reasonably but it is the
parameters of the conduct in respect of the
reasonable jury acting is where I was - - -

DEANE J:

Well, spell it out: taking the most favourable

view of the evidence from the accused's point of view, the view is not reasonably open; that what was said to the accused might have provoked an
ordinary person to have gone away, had a couple of
puffs of a cigarette and returned and stabbed him
with a butcher's knife.

MR KABLE:

I do not dissent from that.

Stingel(2)

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DEANE J:	I am putting it in colourable terms to - - -
MR KABLE:	Yes, I do not dissent from that provided all the

facts and subject to the limitation when His Honour
Mr Justice Brennan asked me the same question and I
put a limitation on that phrase, "the most
favourable view"; that is, meaning all the facts.
No, I acknowledge that.

McHUGH J: Could I just ask you this: you see, in

New South Wales, the onus is on the accused to
establish the defence of provocation so what was
said in Parker has got to be read in the light that
the accused carries an onus.

MR KABLE:

Yes.

McHUGH J: What is the situation in Tasmania under the Code?

Must the Crown negative provocation?

MR KABLE: Yes, Woolmington applies.

McHUGH J: Yes.

MR KABLE:	Yes, and that is why I have been using the word "might" and "could" because the Crown has got to
negative two potentialities to obtain a conviction for murder; the two being could the jury (acting
reasonably) find that an ordinary man might so
react.

McHUGH J: Well, is that right? I mean, should you not be
really looking at it from the Crown's point of
view? The Crown has got to negative it. The Crown
have got to show that there is no evidence upon
which a•jury could - - -

MR KABLE: Yes, I agree with that, Your Honour.

Mc HUGH J: Yes •

MR KABLE:

I would submit that that is a correct test but the critical thing is that the component of the

must prove that an ordinary man could not so react. test is what could an ordinary man do and the Crown
DEANE J: But when you bring in the notion of "reasonably",
does not the question of onus of proof cease to be
significant at the trial judge stage, as distinct
from the jury stage because if accepting the best
view of the evidence from the accused's point of
view, the question is could the view reasonably be
formed that there was provocation?

MR KABLE: The onus of proof becomes important because if
the evidence raises the issue for the Crown to
convict then the jury acting reasonably would have

Stingel(2) 56 7/8/90
to be satisfied, I submit, that no ordinary man
could so react.

DEANE J:

I would have thought the way Sir Owen Dixon put it

in Parker conformed completely with the Tasmanian
onus of proof even though it was a New South Wales
case and that is "any possibility."

MR KABLE:- Except subject to the observation of His Honour

Justice McHugh that there is no onus on the
accused. Perhaps I am not being as clear as I
should. What I am seeking to put but perhaps not ideally is that once there is evidence of loss of control and once there is evidence of wrongful act
or insult then for the Crown to achieve a
conviction for murder in circumstances where there
is evidence linking the wrongful act of insult and
the loss of control and it is asserted that one
provoked the other, the Crown must satisfy the jury
beyond reasonable doubt that no ordinary person
could have so reacted. That would be the direction
a trial judge would give a jury, in my submission.

DEANE J: What if the trial judge reaches the conclusion,

accepting the facts most favourable, everything
else, the view that this insult could have led an
ordinary person to commit this act is simply not
reasonably open? Does he let provocation go to the
jury or does he stop it?

MR KABLE:

If he reaches it the way Your Honour has just

narrated he has posed the wrong test for himself
because it has got to be what the jury can find.

DEANE J:

I said,· "The view is not reasonably open".

MR KABLE:

I am sorry, Your Honour.

If he reaches the view

that no jury could reasonably reach the state of
mind where the Crown - I am sorry, it is the wrong
way round again. The situation is that for the
trial judge to take the issue he must reach the
state of mind that no jury could reach the state of
mind that an ordinary person could react as the

reasonable doubt the accused is entitled to a accused. And until that is extinguished beyond
verdict of manslaughter. That is the answer.

McHUGH J:

Is this the way you put it, that no jury could be

satisfied beyond reasonable doubt that no ordinary
person might have been provoked?

MR KABLE:

Yes.

I am sorry.

I am grateful to Your Honour.

Yes, that is the way I put it. Might have been or
could have been provoked, yes.

DAWSON J: That is a different question from the question

whether there is evidence, is it not, because there

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is evidence in all of these cases of provocation?
The man will say he was provoked, the facts are set
forward upon which he says he was provoked and the
question which you are asking is not a question
which has to do with the evidence at all, really.
It is an inquiry into the quality of the matter and you are not leaving it to the jury because you have
adopted a view different from that which the jury
would be asked to adopt.

MR KABLE:

But in reaching that view you must have regard to

what the jury - because it is an
ordinary person - - -

DAWSON J: That is so but you said it is the same sort of

question as when you asked, "Is there evidence to
go to the jury on?". It is not really a question
of evidence at all. It is a question of assessing
the nature of the evidence.

MR KABLE:

Yes, except to take my submission to its

conclusion, it is only when you reach the stage
that I was just articulating that it can be taken,
that is that there is no evidence upon which a jury
could reach those particular states of mind.

McHUGH J: Well, it is not known, it is upon the evidence,

is it not? If there is nothing at all then the
issue does not arise. There has got to be some
evidentiary foundation for it and then it is a
question of whether the Crown is negative
ultimately.

MR KABLE:

Yes, I must put it that way because if there is

no evidence that is an end to it, the question does
not arise.

McHUGH J:

It is rather like a case in this Court called

Barker where the accused was, in effect, hinting
that somebody else was responsible for the murder
and the New South Wales courts would not allow that
issue to be raised because·they said there was no

evidence upon which a jury could reasonably find it

but this Court said, "That's not the test. The
Crown have got to negative."

MR KABLE:

That is why I have been at pains to point out

that what is involved in this assessment is the
trial judge's appreciation of a potential jury's
response, not his appreciation of the facts himself
as to what an ordinary person might do.

BRENNAN J: The difficulty with that is that it conflates

the notion of what the primary facts are with the
character which those facts bear, because if we
look at what the primary facts are, that problem is
overcome by adopting the approach of saying,"Taking

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the most favourable view of the facts that is open
on the evidence." Once we have got past that stage
we know what the facts are for the purpose of
applying the section. When we come to apply the
section, we then come to apply a test of "ordinary

man". And it is only if you say that the judge
must put himself as a jury in deciding that that
you get into the question of what the judge must

think the jury is going to do. Why should he put

himself in the position of a jury? Why can he not
say, "I am an ordinary man"?

MR KABLE: Because, in my submission, the section creates an
entitlement to be found not guilty of murder if
what has occurred would be sufficient to deprive an
ordinary person, and the persons best equipped who
ordinarily would make that decision are the jury,
and therefore what the judge is doing is posing a
test in respect of potential jury verdicts.

DAWSON J: But does that not simply mean that he has to say,
"I have postulated the jury that they are people

capable of knowing what an ordinary man would
respond, and I too am capable of understanding how

an ordinary man would respond. I must not
postulate that the jury will have a different view
of how an ordinary man would respond from that
which I have."

MR KABLE: I suppose that is the kernel of this debate
because that brings back the question of whether
the judge's responsibility is to rule that certain
conduct just will not be judicially entertained as
being potentially the conduct of an ordinary man,
or whether his responsibility is to not leave
issues to the jury that they might reasonably

adjudicate in favour of the prisoner. And if it is
the former, then he is exercising an independent
judicial role guiding the conduct and morality of

the citizens. If it is the latter, then that is a
different question. That is probably a better
answer to Your Honour Justice Dawson's question

than the answer I gave earlier. If the purpose of
the subsection is to stop speculation - and that
word appears regularly throughout the cases that
deal with provocation, that the jury should not be
invited to speculate; if the purpose of the
subsection is to remove issues from the domain of
the jury which are not legitimately before them on
an evidentiary basis, then the other basis is to
provide the trial judge with a power to say when a
defence will or will not apply.
Of course that, as is pointed out, does not

sit easily with the direction to a trial judge that
even when provocation is taken from the jury, you
are still to tell the jury that they can convict of

Stingel(2) 59 7/8/90
manslaughter on a basis that might not be
ascertainable on the evidence. But, of course,
that power in Packett and the very cases I am
speaking of is highlighted and emphasized. That
crystallizes, if I may put it that way, the
competing tests, and I suppose to bring my summary
to a head, what I am submitting is that
Mr Justice Dixon in the early case is propounding a
test which involves judicial control over when
juries might consider provocation, and in a later
test is propounding an evidentiary test that juries
should not be considering issues in cases where
there is no evidentiary basis for it, and is
considering it from the point of view of the
prospective jury. That is the way I put it. And I
find not direct support but certainly some comfort
in that in the passage that I refer to next in the
written submissions where, in Moffa v
The Queen 138 CLR - I am now at page 5,
Your Honours - at various places referred to, and I
will not read the passages to you - all the
passages referred to in the written submissions,
the members of the court - perhaps
Chief Justice Barwick at page 606 where His Honour
observed about 8 lines from the bottom of the page:
If they took that view, it was open to them to
conclude that an ordinary man, placed as was
the applicant, would so far lose his self-
control as to form an intention at least to do
grievous bodily harm to his wife. Whether
they would or would not take such a view of
the situation would essentially be a matter
for them. They are credited with a knowledge
of how the ordinary man would react in such a
situation. Many might think that they should
not draw any such conclusion. But there are
limits to the control of such a factual situation which the court can exercise.
Mr Justice Stephen at page 618 at the bottom

of the page, where His Honour in the second
sentence in the bottom paragraph observed:

Minds may well differ, as they have in this
case, upon what is sufficient to constitute
provocation when what is in question is a
combination of words describing past conduct,
words of abuse and some physical violence.
Here the element of physical violence was
relatively slight, there is in fact no
suggestion -
And, of course, at the time Moffa was decided

words alone, as I understand the law as expressed
in that case, could not constitute provocation,
whereas it is clear they could under the Code.

Stingel(2) 60 7/8/90

McHUGH J:

I notice that in Sir Garfield Barwick's judgment

at page 606 about four lines from the bottom he
spoke about -
an ordinary man, placed as was the applicant,

would so far lose his self-control as to form
an intention at least to do grievous bodily
harm -

It seems to indicate that you do not have to have any intention to kill - the ordinary person does not have to have any intention to kill.

MR KABLE:

Yes. That, of course, relates to the common law

of murder.

MCHUGH J:	Yes, I know it does.
MR KABLE:	And would seem to support that contention and he

positions - the subsequent South Australian cases
obviously find their basis in Moffa, that is Romano
and those other cases, Your Honour, yes.

McHUGH J:

Well, what is the situation in Tasmania? have to have an intention to kill or has it

Do you

got to

be an intention to do grievous bodily harm, that is
the ordinary person?

MR KABLE:

Section 157(1)(c), Your Honour, with the

intention to kill or an intention to cause bodily harm which he knew to be likely to cause death or
by an unlawful act or omission which he knew or
ought to have known was likely to cause death in
the circumstances.

McHUGH J:

Well·, what do you do for the ordinary person?

Is it sufficient that he may have intended to do

bodily harm? Has the ordinary person got to know
all to have known it would o be likely to cause
death in the circumstances?

MR KABLE:

The ordinary person is given some degree of

knowledge and foresight, the nature and extent of

which was definitively set out in a case called
Boughey in this Court in 1986 where "ought to have
known" and "knew" were given some extended
consideration, Your Honour.

McHUGH J:

Well what about (b)?

Can you be guilty of

murder under (b):
an intention to cause to any person ..... bodily
harm which the offender knew ....• although he
had no wish to cause death.

MR KABLE:

Yes, if he knew it was likely to cause death.

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7/8/90

McHUGH J: Well, does the test of the ordinary person depend
upon what limb of section 157 the accused is
charged under?

MR KABLE: I would submit not, and I would submit that
section 157 very usefully delineates that when you
are testing the primary liability for the crime of
murder under section 157(l)(b) or (c) very
different attributions of experience and knowledge
are given to the accused than they would be under
section 160(2).
The other passages I was referring in Moffa to

are set out - I do not propose to read them -
Your Honour the Chief Justice at page 622 and

Justice Murphy at pages 624 to 626. The point to
be taken from those quotations is the legitimacy of
minds differing as to what an ordinary person's
response would be and I therefore develop that and
say how important that is to consider when you are
taking the case from the jury for all the reasons
that I have advanced earlier today.
In the next paragraph I observe that a trial

judge should be more hesitant to withdraw a case
from a jury when a decision as to the existence or
otherwise of evidence of provocation involves a
qualitative assessment of evidence, as distinct
from a judicial determination that there is not in
fact any evidence of, for example, loss of control,
and I did make that point earlier.
The next paragraph, I have made the point

earlier again today, that the development of the
law of provocation and the insistence by this Court
and subordinate courts that the issue of
provocation should be left to the jury
notwithstanding that no direct evidence of loss of
control is present in a particular case and/or that
counsel for the accused expressly disavows any
reliance upon the evidence, emphasizes that the issue of provocation is ultimately properly and
almost inevitably a jury question.

I there quote a very old American case in

which the very propositions that I am putting to
the Court today were very helpfully and succinctly
set out and the reason I quoted it was - and I am
not going to read the passage at page 222 - was to
show that precisely the debate that is taking place
here today was a critical issue then and that
debate was at the end of the day whose role is it
to delineate what is potential conduct of the
ordinary person, is it the jury's or the judges,
and in that publication, and in the Victorian Law
Reform Commissioner's working paper of 1979 which
I located yesterday when I was doing some work,

Stingel(2) 62 7/8/90
that answer became that it is the jury's, not the
judge's.

MR KABLE:

Now, as there are two matters - and I am sorry, I

have a little longer than I said I would before -
Your Honours, there are two additional matters that
I would wish to mention and they are brief and they
relate to the application of the legal arguments I
have put to the Court to the grounds of appeal and
I have summarized those at the bottom of page 5.
Grounds 2, 3 and 4 relate to the matter that has
been the subject of debate, ie, most recently, the
test to be applied and the manner in which the
facts are to be dealt with.
If I can take the Court to the judgment of the

Court of Criminal Appeal - that commences at
page 577 - I hope I have got that page right.

MASON CJ: Yes, you have.

MR KABLE:

Thank you, Your Honour. Grounds 2, 3 and 4 all

relate to the test to be applied and
Mr Justice Nettlefold at page 579 to page 580
referred to the passage from Packett that I have
just mentioned and in the third paragraph on
page 580, His Honour, having indicated previously
that the common law had no place in the
interpretation of the Code, then applies Holmes v
Director of Public Prosecutions, indicating that:
it would be a strange "overriding or
controlling standard" which would allow this
conduct of the deceased to form a sufficient
basis for reducing a fatal attack ..... to
manslaughter.

That is the only passage where His Honour deals with these issues.
Mr Justice Underwood at pages 595 to 597 holds

that the trial judge did not use a test of "would
an ordinary person so react?" and I will not read

those passages but I will invite the Court to
page 602.

DEANE J:

If you go to page 580, what do you say about the

last paragraph in Mr Justice Nettlefold's judgment?

MR KABLE:

I submit that His Honour is in error in that

paragraph.

DEANE J: But what if one were of that view, that that was

the correct conclusion on the most favourable view
of the facts?

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7/8/90

MR KABLE: That paragraph has two components and to answer
Your Honour's question, firstly, one has to be careful with the word "calculated" because that
comes from the New South Wales section and has no
part of the Code.

DEANE J:. Well then, instead of "was calculated", put "might
have".

MR KABLE: "Might have":
It could not reasonably be found that anything
which the -

accused said in the circumstances "might" have
deprived -
an ordinary person -

DEANE J: Well, say "could have".

MR KABLE: Could have?

DEANE J: It is probably better from your point of view and
add after "ordinary person" "in the position of the
accused" with all that it carries on your argument.

MR KABLE: If we got to that, if no jury could find - - -

DEANE J: That is what I keep trying to raise with you. To
say "no jury could find it" is to say something
that is quite different to "no jury could
reasonably find it", which is what Sir Owen Dixon
was drawing attention to in Parker.

MR KABLE: When I say "no jury could find", what I mean by
that phrase in that submission is that the jury
acting in accordance with their oath, considering potential responses of an ordinary man, reach the
state where they are satisfied that an ordinary man

could not so react. My concern with the word
"reasonably" is that it might be seen to limit the

range of conduct which potentially is undertaken by

the ordinary man. I am not wanting the jury to act

outside their oaths. I am saying that when one
says "the jury acting reasonably", the jury is
there to judge what an ordinary person might do and
to impose reason where it is an ordinary person is
destructive of the notion of ordinary person and
limiting to an extent not authorized by the Code.

DEANE J: I still do not follow. What if the trial judge is
of the view that a finding of provocation, in the
circumstances and accepting all your arguments,
would be quite unreasonable, even though there had
been an insult which had subjectively incited the
accused to do what he did?

Stingel(2) 7/8/90

MR KABLE:

The only way I can answer Your Honour is this:

unreasonable, then my submission is the only way he if the trial judge were to find that that would be
could give it that description is by himself
deciding that no jury could so find it.

DEANE J: Could reasonably so find it?

MR KABLE:

Well, yes.

I can only answer Your Honour the way

that I have been trying to. The purpose of my
argument is not to invite a jury to act
unreasonably but is to recognize that the spectrum
of conduct comprehended by the phrase "ordinary
person" may be far wider in the opinion of a jury
than in any judge, and for a judge to make a ruling
that no jury could reasonably find it, would
require him to give it the widest possible meaning
before reaching that stage.

McHUGH J: Well, it depends on what you mean by "reasonably"

though in that context, because it is not for the
jury to make any findings, the jury has just to
have a doubt - a reasonable doubt.

MR KABLE:

The next proposition that flows from that is that

it is the Crown expunging the potentiality beyond
reasonable doubt that results in the conviction for

murder. I suppose all I can say, Your Honour, is
it will be the rarest possible case where it is
legitimate to conclude that the conduct could not be found by a jury to raise a reasonable doubt as
to whether the accused was provoked in
circumstances where an ordinary man might be so

provoked. I do not think I can put it in another
way, I have tried. It is a very strange
combination because it is a combination of
potential reactions that must be negatived beyond
reasonable doubt. Now to compare those two results
in a very wide scope of conduct, not the other way

around. If the onus were on the accused it would
be a different ball game.

Your Honours, I was taking Your Honours to

page 602 to 603 of the judgment, and that is
Mr Justice Underwood's judgment, at which page
His Honour refers to Packett, at the bottom of
page 602, and His Honour applies what His Honour has found to be the exterior circumstances test, and His Honour indicates then:
In the present appeal the "exterior

circumstances" included the relationship, past
and present, between the appellant, the
deceased and Miss Goss. It forms the matrix
of facts or "whole pattern of events" leading
to the relevant incident. But the objective
nature of the threshold test would disappear

Stingel(2)

7/8/90

if those "exterior circumstances" were
expanded to include a depth of feeling or
obsession for Miss Goss such as that
inferentially claimed by the appellant.
Attributed with a prior relationship such as
that which had existed between the appellant
and Miss Goss, the appellant's claimed depth
of feeling or obsession was not a
characteristic which the ordinary man would
have possessed.
And it is the use of the word "would" there that,
in my respectful submission, is important. And in
the next sentence:
On any interpretation of the evidence most
favourable to the appellant -

which is the phrase that has been used here a lot
today, but it is not the interpretation of the
evidence most favourable to the appellant because
he has left out some facts that he said an
"ordinary man" could not, or some history or
characteristics.
On any interpretation of the evidence most
favourable to the appellant it could not be
said that the deceased's words to the
appellant, "Piss off you cunt, piss off"
uttered in the circumstances in which the jury
could find they were so uttered constituted an
insult which was capable of depriving the
ordinary person in the circumstances ..... of
the power of self control.

And, again, His Honour, in my respectful
submission, has talked about what would a jury
find, not what could and, His Honour,
Mr Justice Wright, does not raise this issue.
Now, ground 5 relates to the history and/or

characteristics of the ordinary man.

Mr Justice Nettlefold does not deal with that

argument. I have referred Your Honours to
Mr Justice Underwood's observations as to that at
602 and 603. His Honour is prepared to find that
the accused was in love but His Honour is not
prepared to find that the depth of feeling asserted
by the accused in his unsworn statement should be
utilized in any way and Mr Justice Wright, at 606,
held that Camplin had no application under the
Code.
Ground 6 is the wrongful act ground and save

and except for the oral sex argument, which is not
pursued here, none of Their Honours had regard to
that ground. Ground 7 is the proportionality

Stingel(2) 66 7/8/90
ground which was applied by His Honour
Mr Justice Nettlefold in the passage that I
referred to earlier and grounds 1 to 8 are general
in their nature and complain of the decision.
It is appropriate that I mention a couple of

brief matters about the facts. At page 537, in
argument before the learned trial judge, it was put
to His Honour that the facts which could give rise
to the provocation were the utterance of the words
I read a moment ago, in the circumstances in which
they were uttered:
Saying those words to the accused, when the
girl's head was placed upon or adjacent to the
penis of the deceased.
(c) The deceased and the girl participating

or continuing to conduct themselves in a
sexual manner vis a vis each other, when they

either knew or when they knew the accused was
present and could see what was happening.
In addition to those facts, there is the history of the events of the evening which are narrated in the unsworn statement, which I do not pause to read
out. There is the violent nature of the
relationship which manifested itself in violence
from time to time. There is the undisputed
infatuation and/or strong love for, and I submit
its lack of reciprocation is not an outstanding
fact which operates against the existence of
provocation. There is the perception by the
accused that the girl was being used. There was
her distress earlier in the evening directly caused
by the deceased which was such that on the evidence
most favourable to the accused, he raised the
reason for her distress with the deceased.

TOOHEY J:

You said something earlier, Mr Kahle, that seemed

to suggest that the conduct of the young woman, of
itself, might constitute provocation.

MR KABLE:	The way I put it to Your Honour was the continuing to participate in a virtually sexual
conduct by each person after the accused arrived at the door might have been found by the jury to
constitute provocation.
TOOHEY J:	Can there be provocation in the conduct of

someone who is not the person against whom the
death is not caused?

MR KABLE:

Yes, certainly it has been held in Tasmania that

there can be. and there are -

Stingel(2)

7/8/90

TOOHEY J: That could not be so under the Western Australian
Code or, I imagine, under the Queensland Code?

MR KABLE: In Hutton, it has been held that there can be and
there are other cases which I will locate, if
Your Honour would wish, when I resume my seat.
Certainly, Hutton which is one of the cases I have
been talking about, the Court unanimously accepted
that there could be conduct emanating from a source
other than the deceased. His Honour
Mr Justice Underwood dissented in that case as to the disposition, not as to that.

TOOHEY J: Yes, thank you.

MR KABLE: I am sorry, I will just be as brief as I can.
BRENNAN J: And in all of this, one cannot equate jealousy
with provocation and if there be provocation to be
found in the circumstances, then that as you are
referring to may provide some interesting
background but the provocation must surely be found
in conduct which holds the accused in contempt.

MR KABLE: Or which causes anger.
BRENNAN J: Because it is insulting to him?

MR KABLE: Or because it involved the using of the girl in
circumstances where his state of mind vis-a-vis her
was protective.

BRENNAN J: That raises some interesting difficulties.

MR KABLE: I am conscious of that and conscious of

Van der Hoek. There is a spectrum. The point I
would make is the provoker does not have to set out
to be deliberately - it is not essential to the
provocation that every matter relevant to its
arising is set out to be hurtful to the provoked.

BRENNAN J:

No, but what is essential is that the provocation must be traceable to the wrongful act

or insult.

MR KABLE: Yes, I do not seek to detract from that but love,
care, protection, anger, could also give rise to
it; fear for her might; jealousy resulting in
deliberate killing obviously would not. This is
why - and this comes back to the question
Your Honour Justice Gaudron asked after lunch - one
cannot in this case give one meaning to the facts.
It is not only the use of that word by the new boy friend in the sexual circumstances with continuing sex to the accused when the utterer of the word
might well have thought it was appropriate to
describe the accused and the accused may well have

Stingel(2) 68 7/8/90
had some view that it was appropriate to himself

but you have not only got that. You have also got
his described wish to protect and the undisputed
strength of the feeling for her and the point that
I make is that it is a combination of all those

things which must be considered. It is not merely
a cold hearted utterance.
And can I make two points before I conclude.

It is inevitable at some stage the question of the
restraining order will be raised and I made this
point in the application for special leave but I
should make it again. There was no impediment to
the legislature of the State of Tasmania when it
introduced the provisions in the Justices' Act in
relation to domestic violence in saying that the
defence of provocation would not apply to anybody
who was in breach of the order. It is consistent
that it would not apply because provocation does
not embark upon a test of the worth of the victim.
It assesses the mind of the actor to ascertain
whether the Crown has proved that it is not then
operating.
What might be provocative in Scotsdale in a

country town in the early hours of the morning
might not be provocative in a university
residential hall; what life experiences would be
relevant to either and the resolution of all those
type of issues are, it is submitted, uniquely the

province of the jury. I would not wish to make
further submissions, if it please the Court.

MASON CJ: Thank you, Mr Kable. Yes, Mr Bugg.

MR BUGG:

Thank you, Your Honour.

Your Honour, I pass up an

outline of submissions.

MASON CJ: Thank you.

MR BUGG:

Just in brief outline, you will see that from the

outline of submissions the respondent concentrates primarily on those aspects of the notice of appeal

which raise the question, first of all, the
characteristics to be attributed to the ordinary
person, that is ground 5, and whether or not the

position taken by the supreme court in Tasmania is
in fact either wrong in accordance with the
provisions of the Code or, alternatively, is out of
step with the rest of this country and perhaps
other common law jurisdictions because of
developments in the common law in that area.
Then, some time is devoted to the question of

a wrongful act or insult, which is ground 6; I will
deal with that briefly as the matter proceeds. And
in relation to ground 7, that is the question of

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proportionality and the use to which that
particular principle was put by, first of all, the

trial judge and the Court of Criminal Appeal, we had approached the matter on the basis that there
was perhaps a disjoinder within the subsection and
the question of whether or not there was some
proportionality consideration involved in the
ordinary person test may or may not have been in
the Code but in view of what my learned friend has
said this morning a fair portion of the proportion
argument will not be canvassed before you because
we had set about historically to meet that
argument. It is now no longer necessary.
The Code frozen in time is the point at which

the submissions conclude, and there is really no
great issue taken with the applicant's position, or
the appellant's position in so far as that is
concerned. Might I say in opening, that perhaps
the classic position that Tasmania has, in so far
as the ordinary person test is concerned, can best
be gleaned by a reference made by His Honour
Mr Justice Underwood in his judgment. It is
reported at page 602 of appeal book volume II,
where he refers to the passage of the judgment of
His Honour Mr Justice Cosgrove in Jeffrey's case.
And you will see, half-way down the page, the last
two sentences:
There is no point in attempting to frame an exhaustive list. It is sufficient to say
that there are characteristics which can be
attributed to an ordinary man without making
him extraordinary.

And prior to making those comments His Honour
Mr Justice Cosgrove had said that examples of
characteristics which could come within the
external characteristics test that he propounded
were characteristics such a~ race, colour, age,
sex, physical appearance and capacity.

Your Honours, whilst on that point, it may be

of interest to consider the comments made by
Lord Lane in Newell's case, which is referred to by
the appellant in his list of authorities - I am
sorry I do not have the reference immediately at
hand, but in any event, in Newell's case, (1980)
Cr App R 331, I refer you to page 335, and just
very briefly, the facts of that case involved a
dispute between two males, both of whom had alcohol
problems, one of them, the appellant, was
classified as a chronic alcoholic who had just
concluded a 10-year relationship with what could,
for want of a better word, be classified as his
steady girlfriend.

Stingel(2) 70 7/8/90

That breakup had distressed him. He had been

drinking, but not to the same extent as his
flatmate or companion, and in the process of that
drinking bout, the companion made disparaging
comments about the former girlfriend and suggested
that, in fact, the appellant should get into bed
with him, and Lord Lane, at page 335 citing with
approval the direction of Mr Justice Ackner, as he
then was, said where the learned trial judge was
summing up to the jury:
First of all, let me give you the prosecution's case in a nutshell and the
defence's case in a nutshell, so that you have
it in mind. The prosecution say: the accused,
a person of an unstable personality, and that
is common ground; you see that from his past,
and indeed that is described by him - was
emotionally upset, deeply upset by the fact

that his girl friend had walked out on him. A
situation that occurs to many young men from
time to time.

In this case, that is, Stingel's case, the
appellant suggests that that characteristic should
place him in a position of some difference to that
of the ordinary person, whereas those
characteristics, if I can call them that, are said
by Mr Justice Ackner, as he then was, to be
something within the common range of experience of
ordinary young men, and, of course, in so far as
the consequences of those comments are concerned in
the outcome of the trial, the only factor that was
under consideration at the trial, and also on
appeal, was whether or not the characteristic of
being a·chronic alcoholic was a characteristic
which should have been left to the jury to consider
as being a characteristic affecting the gravity of
the insult, which was offered by his flatmate to
him.
But there, in my submission, is a clear indication of the dividing line between the Crown

and the appellant in this case, and that is that
the appellant seeks to elevate himself into a quite
different position as far as the use of the
ordinary person test is concerned, than in fact he
is entitled.
If I can address the Court initially in relation to ground 5, a lot of what is said in this
ground, in the Crown's submissions in this ground,
are referable back to those other grounds. The
emotion of being obsessed by or infatuated with
Miss Goss ought not to have been considered in
applying the ordinary person test because, in the
Crown's submission, that is an extraordinary

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condition to carry the obsession to the extent that
it had been by the appellant, bearing in mind
factually - and these facts were not in dispute -
the relationship which he had with this young lady
had terminated approximately 16 months prior to the
fatal incident.
She at the time was 15 and had gone out with,

or kept company with the appellant for a period of
six months. She was then in her final year of
school. At the termination of that association or
relationship the appellant would not keep away from
her to the extent that - they broke up in the
November/December - by the September of the next
year she was forced to take out a restraining
order.
That restraining order was not as a

consequence of some incessant contact, but also
because there was actual violence offered by the
appellant to her and her then boy friend, so much
so that they both had to receive treatment at a
local hospital for injuries sustained when he threw
a glass at them at a social function.
He breached that order approximately three

months later and was arrested by the police, held
in custody for two days and given a suspended
sentence by the local police magistrates court.
The fatal incident occurred approximately six
months after his apprehension by police for the
breach of the domestic restraint order.
Of course, the Crown does not say that the

Parliament of Tasmania is deficient in not creating some proviso under the domestic restraint
legislation it passed, that a person who breaches a
domestic restraint order is not entitled to rely
upon the mitigatory provision of provocation, but
by the same token the Crown would say that if you
want to rely upon provocation in the sudden and you have that background of history then, of course, if

you are confronted with some emotionally disturbing situation, the question is has it been a shock to you on the sudden - and I am merely answering one
of my learned friend's last comments before he sat
down - and I equate that position with that of
Tsigos in New South Wales where, in fact, the court
said that really the appellant was familiar with
what the domestic situation was, it came as no
shock to him, and therefore he was not confronted
with a proposition of infidelity on the sudden and
he had had time for his emotions to adjust and

equate themselves with what was happening and he could not therefore claim that as an explanation
for the conduct that he then effected.

Stingel(2) 72 7/8/90
Going on with the submissions, the Crown says

that the suggestion of obsession - and that was how

somewhat varied as the proceedings have gone on it was put to the trial judge - it has been
from trial to appeal to High Court appeal - but an
obsession has become an infatuation, has become a
deep feeling of love; that deep feeling of love is
not in fact something that is openly proclaimed by
the appellant in his unsworn statement.
He talks of his association with the young

lady concerned, but after the break up of that
association there appears from the unsworn
statement to be no manifestation or expression of a
deep love for the young lady.
The Crown says that the characteristic, if one

can call it that, of being obsessed or infatuated,
ought not to have been considered in applying the
ordinary person test because it is not sufficiently
and directly relevant to the alleged wrongful act
or insult. That is, it was not the butt of the
insult. There was no portion of what was said or
done that night which was directed to or at his
claimed obsession for this young lady and, of
course, I will come to it later, Your Honours, but
one consideration that this Court may have to
undertake is whether or not, in applying the
ordinary person test, a consideration is given as
to whether or not the ordinary person could
perceive what was happening as being insulting to
him. If, for instance, there was some insult about
a racial characteristic of the appellant that could
be apparent from what was going on in the car, you
attribute race, because that is the butt or subject
of the insult.
But to go on, subparagraph (b), to attribute

that characteristic would, in fact, deprive section
160(2) of its application and, in fact, make the
exercise of undertaking some consideration of the
ordinary person and his involvement, or potential

make the ordinary person extraordinary, and I had a time. The attribution of that characteristic would involvement, in this episode as being a waste of note to refer Your Honours to that portion of
His Honour Mr Justice Underwood's judgment.
We say that the appellant's argument is

contrary to the test which has been consistently
applied in Tasmania, and I say consistently in
spite of what was canvassed on the special leave
application, and that is that an ordinary person is
placed in a situation in which the wrongful act or

insult occurred. The ordinary person may be placed
in the accused's situation so that previous events
and background pertinent to the wrongful act or

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insult are considered. In applying the ordinary
person test a particular attribute of the accused
may be considered, if it is necessary in order to
appreciate the insulting or wrongful quality of the
provocative conduct and that, of course, refers
back to subparagraph (a) in that paragraph, and
there is an example given.
Your Honours, I refer there to the Tasmanian

cases and, unfortunately, being in the world of
word processors, a number of those case
references - the page references - refer to, in
fact, earlier references which, of course, are not
given. If I could just assist in trying to confuse
the High Court, at page 3, the penultimate
paragraph contains all those references, but I can
assist Your Honours in perhaps just saying that in
Packett's case, I do not believe there is any need
to give the page reference, it has been referred to
sufficiently throughout these proceedings. In
Hall's case, the page reference is page 5 of the
judgment of His Honour Mr Justice Chambers, where
he speaks of the whole pattern of events and that,
in fact, is a passage to which His Honour
Mr Justice Cosgrove referred, in his judgment in
Jeffrey's case.
Mr Justice Neasey's judgment in Kearnan's case, the relevant portion of it commences at page
13.9. The Askeland case is perhaps a good starting
point and I do not propose to refer Your Honours to
the passages from these judgments, because we say
that by an examination of them the consistency in
approach of all the judges of the supreme court can
be obtained. But, perhaps, it is appropriate to
consider Askeland's case in this simple form.
Askeland was a solicitor prosecuted for the murder
of his wife; he claimed that he had been provoked
into killing his wife when there was a sudden
admission of adultery and some comparison of the
sexual prowess of her adultrous partner against

that of the accused. Mr Justice Cosgrove was the
trial judge. At pages 18 and 19 of the judgment of

His Honour Mr Justice Neasey, His Honour refers to
that portion of Justice Cosgrove's summing up where
he explains to the jury the meaning of the term
"ordinary person" .
His Honour Mr Justice Neasey adopts and

approves of that form of direction and you will see
from the unreported judgments that
Justices Nettlefold and Everett agree with the

judgment of Mr Justice Neasey. So, at that point,
in the Supreme court in Tasmania, that is in 1983,
you have Justices Cosgrove, Neasey, Nettlefold and
Everett approving of the exterior circumstances
test, irrespective of what criticism may be

Stingel(2) 7/8/90
levelled at His Honour Mr Justice Nettlefold for
the strict "ordinary person" test he wrestled with
in Jeffrey's case. In my submission there is a
clear indication there of a core of agreement, or
consensus, as to the appropriate test to be
applied.

. The direction given in Askeland's case by

His Honour Mr Justice Neasey, of course, followed his judgment in Jeffrey's case which is also
referred to in the list of authorities - that is
reported in 1982 Tas R page 199. Jeffrey's case
involved a consideration of, I suppose, what could

commonly be called a "bar room brawl". It is
distinguishable from a number of those incidents
where there is a spontaneous response with a weapon
of some description. In Jeffrey's case he drove
some considerable distance from the hotel, obtained a rifle, returned to the curtilage of the hotel and there laid in wait for one of a number of brothers
who had caused him some difficulty over a cue at an
eight-ball table to come out of the hotel and he
shot one of the brothers four times having sought
some identification from him.
The question which was posed in the Court of

Criminal Appeal is whether or not the certain characteristics of the appellant should have been
attributed to the ordinary person for the purposes
of considering whether or not provocation should

have been left to the jury. Of course, that is
ignoring the question of the period of time which
had elapsed between the brawl or fight and the time
when the fatal shots were fired.
In considering that issue, His Honour

Mr Justice Cosgrove at page 230 considered the
relevance of Camplin in Tasmania because there had
been some obiter about the applicability of Camplin
in the case of Bedelph which has been referred to in the special leave application and is also, you

will see, referred to in the respondent's list of authorities, but His Honour commences at the foot

of page 230 and considers whether or not Camplin

has any relevance in Tasmania and he says on the
question of the ordinary person test:
Camplin is ...•. no guide at all in Tasmania -

and he refers then to section 3 of the Homicide Act
in the United Kingdom. And, of course, that, the
Crown says in this case, is perhaps a reason why
some caution should be exercised in examining the
way in which the Victorian Supreme Court has
applied and modified Camplin and, to a like extent,
how the Supreme Court in South Australia has moved

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as well. However, I will not move into that area
at this stage.
His Honour says, half-way down page 231, that:
The very words of that section confine

the trial judge to a consideration only of the question whether there is evidence fit for the consideration of the jury. There is no other
constituents of a proper direction with the
question for the judge to decide. That is why
word: "In my opinion a proper direction to the
jury on the question left to their exclusive
determination" -

and, of course, there is no preliminary threshold
question for the trial judge in the United Kingdom
now as there is in Tasmania. There is a broader
scope for the origin or source of a provocative
stimulus because Tasmania has a wrongful act or
insult of such a nature:
as to deprive an ordinary person of the power
of self-control.

In the United Kingdom, now, the question of whether
or not the person charged was provoked, whether by things done or by things said, or both
together, with no qualifying wrongfulness or
insulting nature and to lose his self-control, the
question whether the provocation was enough to make
a reasonable man do as he did shall be left to be
determined by the jury.
So, there is quite a significant difference.

First of all, the section obviously was aimed at
broadening the scope of provocative conduct by
permitting words spoken. It gave no qualification,
however, to the nature of those words spoken or,
for that matter, for the acts done which may or may
not be the source of provocation.

So, to use the broadened perception of an

ordinary person, that is, because we are not
dealing with words spoken or things done,
Lord Diplock quite correctly says that one must now
consider quite a different ordinary person to
either the wronged husband or the person assaulted
because a verbal insult or things said in the
nature of information may have a far more
provocative affect upon a person than, in fact,
acts or deeds done but at the end of the day the
respondent says in this appeal that the strict or
formal position adopted by Lord Diplock is really
not that different to the position in Tasmania.

Stingel(2) 76 7/8/90
Where Camplin has gone wrong is not in Camplin

itself but in the way in which it has been applied
and by perhaps too rigid an application of the
negative aspects of the test applied by

Lord Diplock, but I will come back to that. I just
was the Court to understand where we are in
Tasmania because what the ultimate object of the
submissions will be is to present to this Court the
proposition that, in fact, with the exception of
South Australia and Victoria, there is very little
difference in the test which is applied throughout
Australia of the ordinary person. Those
jurisdictions which have applied Camplin correctly;
that is, the ordinary person test in Camplin, have
done so to maintain the purpose for having an
ordinary person test in provocation but in Victoria
with classic illustrations such as Voukelatis and
Dincer and in South Australia to a lesser extent
with Romano, you have quite frankly and with all due respect the bizarre situation where a person
can claim to have an insane delusion that his wife
is being unfaithful to him and that insane delusion
can form the basis of the provocative stimulus
which would avail him of the mitigatory effect of
provocation.
In Dincer's case, the appellant was a Turkish

Muslim whose 16-year-old daughter was desirous of
leaving home and setting up with a boyfriend; that
was permitted by the parents somewhat reluctantly
who drove the couple away to the bus station. The
next day they changed their minds; the father
confronts the 16-year-old daughter at the home of a
friend and the consequence of that confrontation

was a fatal stabbing. The fact of the nationality
of the appellant; that is, Turkish; his religious
beliefs and his perception that for his daughter to
lose her virginity would be a grave social disgrace
to him and his wife was, in fact, a characteristic
which was left to the jury to consider.
We would argue that those two high watermarks

or, perhaps from the respondent's point of view,

low watermarks of the application of the ordinary
person test in Victoria are better considered by a
comparison with decisions from Canada where like
situations have occurred and they are the cases of
Ly and Hansford but I will come to those later but
I have merely drifted off to perhaps a point where
I am embarking upon that portion of the argument
which sets out to distinguish the position in
Tasmania and the other Australian States from that
in South Australia and Victoria.
The development of the test through an

interpretation of section 3 of the Homicide Act in
the United Kingdom by the House of Lords in Camplin

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is, I submit, not applicable to Tasmania because of
the origin of that test and the nature of the

legislation from which it derives its source. The

test has been adopted in most other common law jurisdictions, and some of those jurisdictions
have, in fact, ignored that origin and regarded
Camplin and what it says about the ordinary person
as a restatement of the common law and have in fact
ignored Hoffa's case in so far as the authority of
this Court's decision in Australia is concerned,
and proceeded to embark upon a consideration of
"provocative", what may or may not constitute
provocation based on an interpretation of a piece
of legislation by the House of Lords which gave
also due consideration to legislation from New
Zealand, both Acts being quite different from the
common law as it existed in Victoria and South
Australia at the time and, in fact, as it should
exist in those States today.
Where all that has occurred is that

jurisdictions have said, "Well, that is a useful
definition of 'the ordinary person'; we will use
it", there is a much more appropriate perception of
the relevance of Camplin. I had, you will see from
Welsh's case of course, it is His Honour Mr Justice Keating's
the submissions, considered and
judgment in Welsh which spoke for the first time of
the reasonable man who, of course, had his origins
prior to then in the civil law of the United
Kingdom.
The decisions of Mancini, Holmes and Bedder

all obviously caused concern in the United Kingdom because of the rigidity of the application of "the ordinary person" or "reasonable man" factor in the
law of provocation at common law and have been said
to be the cause for section 3 of the Homicide Act.
Of course, that Act was passed after there had been
a fairly long deliberation about capital punishment
in the United Kingdom and it formed only part of
the deliberations of the committee considering that

aspect of the matter.
But you will see that the concluding sentence
in that paragraph referring to the English
decisions says that the reasoning in Camplin and
Newell provides a basis for accepting the validity
of the Tasmania test. Perhaps, Your Honours, if we could examine Camplin now. Camplin is reported in (1978) AC 705 and I might perhaps interpose by some comment by referring to the speech of Lord Diplock
at page 713 where he says half-way down the page:

Stingel(2) 78 7/8/90
My Lords, the doctrine of provocation in
crimes of homicide has always represented an
anomaly in English law.

And that, in fact, has been the case obviously
throughout those jurisdictions which have

their origins in British common law and what you
have is an anomalous situation. The law of
provocation is an anomaly. It is a strange
situation in criminal law for a person to be found,
first of all, to have available to him what is
commonly being called the defence of provocation
which, of course, it is not.
To have provocation available he must first be

found guilty of murder and perhaps the debate that
rages between the need for an subjective as opposed
to an objective test has its origins in the
confusion between whether or not it is in fact a
defence or a mitigatory factor to be taken into
account, and if one looks at East's Pleas, which in
fact are referred to in the list of authorities for
the respondent, you will see that East talks about punishment as being the term given to the response
to the provocation.
Now, you are then seeing a dual consideration,

that is that punishment is in fact some
justification, is there some justification, has
there been a right to inflict some punishment or
blow to the person who has given rise to this
provocation, and there is also the question of
excuse because you consider the nature of the
provocation. It is explicable that this person has
reacted in this way because an ordinary person
could also have reacted in that way, therefore, to
some extent he should be excused, and you have
therefore this proposition that it is partial
justification and partial excuse which gives rise
to provocation.
And those persons who would argue for the excusatory approach - and that appeared to be one

of the propositions that the appellant was putting
to this Court in Hobart on the special leave
application, and I notice there is some reference
to Mr Yeo's article on that fact - would obviously
therefore drive provocation into a subjective - if
you were only looking at whether or not the
appellant should be excused you are looking at his
state of mind and nothing more and therefore it
becomes a subjective matter, but, of course,
excuses and justification went out with the
abolition of legislation that Your Honour has
referred to in Zecovic's case in 1836 and excuse
was only a factor which was taken into account in
determining whether or not a person's property was

Stingel(2)

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rem.oved from him if he claimed excuse as a defence
for homicide.
But as an anomaly the Crown's position in relation to this appeal is that the law of
provocation should be confined and maintained within
the narrow constrictions which are imposed upon it
by the law unless, of course, that is expanded by
the legislature of the States or jurisdictions
relevant to it.
Your Honours, perhaps the most quoted portion of Lord Diplock's speech is that contained at
page 718 and where I say the formal aspects of
Camplin's case I refer you firstly to this where he
says, half-way down the page:
In my opinion -

having considered all the previous cases and the
historical analysis undertaken by Mr Mortimer in
his arguments before the Court -
a proper direction to a jury on the question
left to the exclusive determination by
section 3 of the Act of 1957 would be on the
following lines.

And I will not read that out to Your Honours, I
will leave that with you but you will see that
His Honour adopts a formal and strict ordinary
person direction.
He should then explain to them that the reasonable man referred to in the question is a person having the power of self-control to
be expected of an ordinary person of the sex
and age of the accused, but in other respects sharing such of the accused's characteristics as they think would affect the gravity of the provocation to him -

He attributes nothing to the ordinary person which

influences in any way whatsoever his power of self-
control, he maintains the ordinary person's power
of self-control. And that is what the Tasmanian
Supreme Court has set about trying to achieve in
the way in which it has maintained the strict
objective test that it has applied in the various
cases I have referred Your Honours to and, of
course, that goes right through to the judgments of
the Court of Criminal Appeal in this case. The
finding of the trial judge and the judgments of
Their Honours Justices Underwood and Wright adopt
and approve the ordinary person test as did
Their Honours Justices Cox and Underwood in
Hutton's case which has been referred to.

Stingel(2) 80 7/8/90
BRENNAN J: But the characteristics are relevant to two
aspects of the ordinary person test, are they not?
One is to get what Mr Justice Cosgrove in Jeffrey's
case described as a proper grasp of the insult and
the other is to determine the response of that

insult. Do you place any limitation on the
characteristics background surrounding
circumstances, informations of mind, which might be
relevant to an appreciation of a proper grasp of
the insult?

MR BUGG: Yes, I do. Perhaps if I could, in a shorthand
way, say this that you do not attribute any
characteristic to the ordinary person which would
make him other than that and that is ordinary. You
do not attribute an extraordinary characteristic in
obsession. Justice McHugh talked about once you
give him an idiosyncrasy he is no longer ordinary,
he is extra-ordinary and that comment, with
respect, I would agree because once you start to
tinker with the behavioural aspects of the ordinary
person, that is you give him an obsessive
personality, you reach the ludicrous situation
where you no longer have an ordinary person who has
ordinary powers of self-control.
I was trying to think of perhaps one of the

most bizarre illustrations of that and it occurred
here this morning when Your Honour
the Chief Justice referred to the heavy notations
in the columns of the photocopy of one of the
judgments that was handed up and if my learned
friend Mr Kable had any obsession about his size -
and I say this because I know he has not - and he
was so _affronted by the use of the word "heavy" and
to attribute a heavy notation to him that it was
the gravest of insults that he was to approach the
Bench in this Court and fatally assault Your Honour
his plea on a trial of murder of provocation would
be that he was provoked because he is obsessively
concerned about any affront that suggests that he
is overweight.

Now, that is the stage at which you will

arrive if you start attributing obsessive characteristics, and quite interestingly,
Your Honours, the South Australian Supreme Court
having said it has been getting it wrong of late has - in fact, the Chief Justice of that Supreme
Court, Chief Justice King in the case of Fricker,
and it is not one of the cases in the list of

authorities. I have copies to hand up to
Your Honour, but I do not have control over
copies - this is a report in (1986) 42 SASR 437.

Perhaps it is best to turn to the

Chief Justice's comments on the direction given by

Stingel(2) 81 7/8/90
the trial judge as to what the ordinary person is,
and that is contained at page 444 in the first
principal paragraph:
A further criticism of the way in which

the objective test was formulated related to
the attributes of the ordinary person for the
purpose of the test. His Honour directed the

jury as follows: 'The ordinary man is the man
who is ordinarily able to control himself;
that is, he is not a man of unusual
excitability or unusual pugnacity or unusual
aggressiveness.'
Those three characteristics, extraordinary

characteristics, have been referred to quite often
but he adds the words "or obsessive jealousy".
I expressed myself on the question of the
characteristics -

and he then refers to his judgment in Romano's case
which has been referred to by both parties before

this Court. But he goes on at the top of page 445, having

referred to that passage of his judgment from Romano's case:

The effect of what the learned judge told the jury was that the ordinary person is a person of ordinary powers of self-control -

and we do not disagree with that. He has got to be
there to have ordinary powers of self-control -
undiminished by unusual excitability or
unusual pugnacity or unusual aggressiveness or
obsessive jealousy; or, he could have added,
by any other personal characteristic.
So, in other words, any personal

characteristic which diminishes his power of self-

control is not a characteristic that you can
attribute to the ordinary person because you are
then tinkering with one of the prime purposes of having him there, the ordinary person's power of self-control.

Now that, we would submit, is where some of
the courts have gone wrong. They have looked at
excitability, pugnacity and aggressiveness and left
everything else out. You get to the stage where in
Doughty's case in the United Kingdom the crying of
a 17-week-old child is sufficient provocation to
reduce murder to manslaughter when the person
charged with caring for that child is so upset and
distraught - and he is a male - with the baby's
crying that he muffles it with a pillow and kills
it. And what characteristic did that baby's crying

Stingel(2) 82 7/8/90
offend, insult, or what wrongful act was there in
that baby's crying? And that is the stage where
the Crown in this case says provocation will go the
moment you tinker with the ordinary person's power
of self-control.

BRENNAN J: That is the response part of it?

MR BUGG: That is right.

BRENNAN J: But I thought you were saying that you submitted

that there was a limitation on the factors that
could be taken into account, e.g., obsessive
jealousy, in determining the sting of the insult.

MR BUGG:

The sting is coupled with the response, obviously.

BRENNAN J: It is the stimulus for the response.

MR BUGG: Yes. If, for instance, the person came to this

country from another community, obviously, if the
sting was aimed, if the insult was aimed at a
racial characteristic that that person has, "You're
a dirty nigger" or whatever, then obviously, we
accept that as being a characteristic for the
purposes of the sting, but in so far as the
response is concerned, what you are doing is
saying, "Would an ordinary person who had" - and
Your Honour Justice McHugh said this morning that
nature of the insult perhaps qualifies it, would an
ordinary person confronted with an insult of that
nature lose his power of self-control? And that is
what you do because the moment you start adding, as
with coloured cellophane, a series of colours or
tones to the picture of the ordinary person it
becomes a very difficult exercise, not only for the
trial judge but also for the jury to then remove
those pieces of cellophane and come back to the
ordinary person to examine his power of self-
control. So, yes, they do. Obviously, some
characteristics will be referable to the sting.

DEANE J: What if the person provoked is unbalanced and the

insult is, "You are unbalanced". Do you then say
would the person who was unbalanced?

MR BUGG: Well, Your Honour, I have thought about that one

because I knew someone would ask me that today and,
Your Honour, my answer to that is simply this,
that you say would an ordinary person who had an
affliction, about which they were conscious, self-
conscious or aware, which was the subject of the

butt of an insult, so lose their self-control. The
moment you make an unbalance - you do not have a
problem in New South Wales because you have
diminished responsibility; you do not have a

problem in the United Kingdom. Section 2 of the

Stingel(2)

7/8/90

Homicide Act imports diminished responsibility, but
if you are in Victoria or South Australia where you
do not have diminished responsibility, then of
course there perhaps is greater judicial enthusiasm
to shelve that one under provocation. But in
Tasmania, we may be criticized for doing it, we do
not have diminished responsibility either but we
would say, "No, you do not make the ordinary person
unbalanced", because then he no longer has the
power of self control of an ordinary person.
But to make the sting of that insult referable to and understandable by the ordinary person you
say, "Would an ordinary person who had an
affliction" and then do not get involved as occurs
in South Australia and the United Kingdom with
applying, first of all, one or three overcoats of
characteristics that you then take off to say, "How
would a person without those overcoats respond now
that we have taken them off?" So, yes, that is the
best I can do with that question, Your Honour.

DEANE J: Well, that means then that you have to confine the
extraordinary features of the accused to a
definition of the nature of the insult rather than
to tying it to the person?

MR BUGG: Well, there it is a twofold process. Obviously,
the extraordinary features of the accused are
considered when one looks at the subjective test,
and certainly in examining the objective test,
you - as Camplin said, any characteristic that
affects the gravity of the insult must be taken
into account. But you do not give him all these characteristics and then give him an insult, you
say, "What characteristics are there which are
attributable to that particular insult?"
Perhaps it is appropriate, Your Honour, if we

look at Ly's case, in Canada. That may be of some
assistance to what is happening in that
jurisdiction. It is reported, Your Honours, in
33 CCC (3d) at page 31. Do Your Honours have that

copy judgment?
This is the British Columbia Court of Appeal.
The judgment was handed down on 29 January 1987,
and the best, perhaps, statement of the facts is
contained in the judgment of His Honour Mr Justice
MacFarlane at page 33:
The appellant had been born and raised in

Vietnam. At some time in 1980 he emigrated to
Canada. He had come to believe that the woman
with whom he had been living was no longer

faithful to him. On a number of occasions he
had confronted her with his suspicions.

Stingel(2) 84 7/8/90
Some three to four weeks before the
killing -

I leave the facts for Your Honours to read. You

will do that more quickly than I can here. A fair
portion of the text of the learned trial judge's
charge to the jury is contained on pages 34 and 35,
however, perhaps the summary towards the end of
page 35 is sufficient for Your Honours' needs.
In short, the trial judge told the jury that they should not take into consideration on the first question -

that is the objective test
the reaction that an average Vietnamese male
would have as a result of his cultural
background to infidelity on the part of his
wife.

And, of course, there had, in fact, been in the nature of some expert evidence about what gravity of the insult of a wife's infidelity might be to
the average Vietnamese male.His Honour goes on and
refers to the appellant's argument at page 38:
The appellant submits that the judge should have directed the jury to determine the
effect of the insult upon an ordinary person
by asking themselves whether, if they had come
from the same cultural background as the
appellant, they would have been deprived of
their self-control.

GAUDRON J: That seems to me to be a different question from

the question whether you take into account any
characteristics in determining the nature of the
insult.

MR BUGG:

I am sorry, Your Honour, perhaps I may have

misunderstood the question. I understood it to be

this: what characteristics do you take into
account in determining the nature of the insult?
The relevance of Ly's case is that ultimately the
Court of Appeal said the characteristic of being a
Vietnamese and having some perception that there

was a disgraceful slur on your character for your
wife to be unfaithful to you was not a factor to be
taken into account in the circumstances of this
case because the insult offered by the wife was not
aimed at that characteristic. It was merely a
common law wife saying to her partner, "It's no
business of yours - - -

Stingel(2)

7/8/90

GAUDRON J: Well, without putting a description on the
insult there involved or that might have there been
involved, we all know that insults which go to the
question of marital fidelity and so forth are of a
nature such that they are ordinarily left to the
jury or that they may be left to the jury.

MR BUGG: Yes.
GAUDRON: But, in the present case, it seems that the
question is, can you say that the insult in the
present case was also of that general description
of insults by reason of taking into account the
special features which pertain to the appellant, or
the applicant.

MR BUGG: Yes. Certainly, Your Honour, the argument
develops from this: you say - this is a classic
illustration of saying what characteristics do you
attribute to the ordinary person; you confine it to
those matters which are the butt of the insult or
the wrongful act. Here, there was nothing about

him being Vietnamese, which was the butt. The butt
was one of a question of fidelity.
Now, in Stingel's case

GAUDRON J: But all of that that you say now presumes that

you have identified the nature of the insult.

MR BUGG: So, what characteristic of Stingel's is the butt
of the insult or wrongful act?

GAUDRON J: Well, you have to identify the nature of the
insult before you could come to that, I would have
thought, Mr Bugg.

MR BUGG: Yes.
Well, at trial it was argued by the Crown - I argued that there was no insult.

GAUDRON J: Yes.

MR BUGG: That is a factor that has to be considered later
in my responses to the matters that my learned

friend has raised but the words, "Piss off, you
cunt, piss off", uttered in the circumstances in
which they were uttered, the Crown argued were not
insulting because they were a response to the
appellant opening the door of the deceased's car when the deceased and the young lady were in the
car in a secluded car park, the access to which had
to be obtained by taking a substantial deviation
from the main road which the appellant was
travelling on, so the door is opened, these words
are uttered.

Stingel(2) 86 7/8/90
The Crown would go on to say that the question

that must also be examined is what would the
ordinary person perceive the insult to be in those
circumstances? And that, of course, is the factor
which is considered later in the same volume of the
Canadian Criminal Cases and if I could just,
perhaps, canvass that with Your Honours and then
come back and consider Your Honour's question; I am
hot trying to dodge the slow ball so to speak, but
in Hansford's case, which is, as I said, in the
same volume of the Canadian Criminal Cases, at page
74, the Alberta Court of Appeal there considered a
factual situation where the appellant had stabbed
to death a taxi driver who, when the appellant
said, "I don't think I've got the money to pay the
fare", the driver reached around on to the seat and
the appellant claimed that he thought that he was about to be the subject of some indecent approach

or assault by a homosexual taxi driver. He claimed
as background that earlier in the day he had been
the subject of a similar approach.
I could not help but notice that he was taken

to Medicine Hat police station where he was
interviewed in relation to this matter but, in any
event, the exotic name of the· police station has no
great relevance to the case but what happened was
the question of whether or not the appellant's
perception of what was about to transpire in the
taxi could be viewed as provocative if it was a
mistake. In other words, if all the taxi driver
was doing was reaching round to take something off
the seat or whatever, should the "ordinary person"
test be examined by placing the ordinary person in
the perceived factual situation that the appellant
perceived or should rather the ordinary person be
considered as a person who would have the same
perception of the appellant and, put simply, the
conclusion of the Alberta Court of Appeal was that
you have to say, "Could an ordinary person in the
position of the accused have perceived that what he
was about to undergo was a homosexual assault?".

That, perhaps, is an answer, as I said

earlier in my submission, to the Voukelatis
situation, would an ordinary person in Voukelatis'
position have perceived his wife to be undertaking
some unfai-thful liaison with a neighbour, and if
you couple those two cases together, that is,
Hansford and Ly, the Crown says that when
considering just what occurred in this case, that
is Stingel, you have to examine the perception of
the ordinary person as to what the deceased's
response was to him. Was it an insulting response?
It has been put on the proposition that the accused perceived Taylor, the deceased, to be the victor
and he was the vanquished, he had lost out in this

Stingel(2)

7/8/90

claim for this young lady's affections, albeit, he
had lost out some 15 months previously and there
had been something like three boyfriends since but
that was put as a logical proposition for a
reasonable jury's consideration by my learned friend when he sought special leave in Hobart.

That has not been canvassed to that extent before Your Honours today.

However, that is an
unrealistic perception, in my submission, when one
places the ordinary person in that environment.
So, to come back to your question, Justice Gaudron,
the situation is this: that the Crown would say,
"What would the ordinary person perceive was
happening in the car and what would the ordinary
person perceive the insult or wrongful act to be?"
and, of course, on the Crown's argument, we would
say there was no wrongful act or insult. It may,
in the distorted and obsessed and confused mind of
the appellant have been a wrongful act or it may
have been insulting - it seems that the main thrust
of the argument is that it was insulting but in the
mind of the ordinary person placed in that
situation, the Crown submits there was no insult.
But if you are looking for some insult at all

it is vulgar abuse that someone has unwittingly
opened the driver's door of a car of a person he
really has not had much to do with for about
18 months at three in the morning in the deserted
Scotsdale football ground car-park where, as
His Honour Mr Justice Nettlefold concluded, the
appellant knew there was the likelihood of some
sexual activity taking place, having said so in his

unsworn statement. He knew that the deceased was
"one night standing" and that this used to occur
after football matches and socials at the football
club of a Saturday.
So that what is the insult? The Crown says

there is none but if there is to be gleaned from
those circumstances some insult, then it would be
the insult of the appellant being abused in a

vulgar fashion by the deceased when the appellant
has opened the door of the car without invitation,
without right and involved himself in the situation
that was - whatever it was - proceeding in that
car.
My learned friend said to Your Honours this

morning that in fact sexual conduct continued after

the door was opened. I may be mistaken as to that
but the high water mark factually is to obtained
from the unsworn statement and I refer Your Honours
to page 569 and it appears to me anyway from my
reading of that that there was no continuing sexual
contact between the deceased and the young lady

Stingel(2) 88 7/8/90
after the door was opened and I refer Your Honours
to half-way down the page to the foot of the page.
And there is no suggestion that the young lady was
in any way participating in any sexual contact or
conduct with the deceased after the door was
opened.
So that in narrowing the facts on the most

favourable view of the facts from the appellant's
point of view, I would exclude what my learned
friend put to you this morning and that was that it
was insulting in those circumstances for this
sexual conduct to continue and that is not borne
out on any view of the facts or any reading of the
facts.
Perhaps it is worth noting that, of course,

whilst the Crown carries the onus, and it is an
interesting point to consider just whilst
Your Honours are looking at that portion of the
unsworn statement - the Crown carries the onus and
an accused person in Tasmania can make an unsworn

statement which comes in that form; is read by
his counsel to the jury; and is then tendered as

an exhibit and goes into the jury room. Any
undetectable characteristic can be claimed, in an
unsworn statement, and then provocation could be
thrown wide open in a position where there is just
absolutely no way of disproving that
characteristic. But if it is an exterior
characteristic that can be obtained and assessed and understood by that person's life, background
and experience then, of course, it is a matter that
is within the anticipation of all persons involved
in that trial process.

DEANE J:	Of course, one strange thing in this case is that the accused, himself, said that it was what he had
seen that worked him up.
MR BUGG:	What I had seen and being spoken to like that.
DEANE J: Then it goes on:

It all happened so quickly. It was what I had
· seen that really worked me up.
Perhaps I am looking - - -

MR BUGG:

Yes, you are looking at 570, line 7.

DEANE J: Page 587, I am looking at

MASON CJ: - - - where it is set out in one of the judgments.

Stingel(2)

7/8/90

MR BUGG: I have 570, I am sorry Your Honour. Yes, it is

towards the end of his unsworn statement. He went
on and said:

I was all worked up and feeling funny. It was
like I was in a range, almost to the stage
where I felt dazed.

It probably starts half way down page 569. That
statement is, in fact, canvassed with the trial
judge briefly as to whether or not one could then
isolate the words:

Piss off you cunt, piss off.

And say, well if the mechanism that caused a loss of control, as claimed by the appellant, at
page 570, was what he had seen, what wrongful act
was being undertaken by the deceased and Miss Goss,
because it was argued that there was no wrongful
act in whatever sexual play was taking place
between this young couple in the car at that hour
of the morning in this secluded area. But I take
Your Honour Mr Justice Deane's point on that, that he did claim that it was what he saw which worked him up. But, certainly, he does not say whether it
was what he saw when opened the door of the car;
what he saw when he turned back having smoked the
cigarette, because what he saw when he turned back
while smoking the cigarette, is about six lines
from the bottom, on page 569.

MASON CJ: It will be convenient now to adjourn and we shall

resume at 9.45 for the hearing tomorrow.

AT 4.27 PM THE MATTER WAS ADJOURNED
UNTIL WEDNESDAY, 8 AUGUST 1990

Stingel(2) 90 7/8/90

[1990] HCATrans 167

Key Legal Topics

Areas of Law

Criminal Law

Statutory Interpretation

Legal Concepts

Appeal

Charge

Proportionality

Statutory Construction

leave that issue to the jury.	tri.al judge if the facts permit of the verdict to
Those preliminary remarks are made to support the contention that I mentioned a moment ago that
any legislative provision which limits the right to
trial by jury should be interpreted to give as much
effect to the right to trial by jury as is
consistent with the section.

of the alleged "wrongful act or insult" are and -it is submitted - must be relevant and therefore	attributed to the ordinary person for the purpose
of adjudicating whether or not the alleged wrongful
act(s) or insult(s) were of such a nature as to be sufficient - and I insert parenthetically not
necessary but sufficient - to deprive "an ordinary person of the power of self-control".

MR KABLE:	A person to whom the wrongful act is done - and "done" might not be quite the precise word - so we
know why it is wrongful.
TOOHEY J:	I mean, a term of abuse to some person might mean

connotations of what was being said.	To another it
might be regarded as a grave insult.

probably in contract and probably in some
commercial crime.	You see, if you get something

written submissions through.	I submit that the
Tasmanian decisions I refer to - and I do not

ordinary person "of the age and sex of the appellant" of his power of self-control. Was	it incumbent in law on the trial judge to add
that gloss to the section? That is the issue.

would wish to refer.	It is observed at the top of
the page that:

were or were not taken into account in reaching	delineation of the characteristics which either	that decision and that proposition, in my
submission, is important because although
His Honour dissents as to the disposition of the
case, that observation that:

ordinary person's power of self control.	He is
talking about a sufficiency.

MR KABLE:	The answer to Your Honour's question is that proportionality - firstly, it is submitted that
proportionality does not have any place to
play - - -
DEANE J:	I follow that, but I am just wondering what all

take Your Honours to Mr Justice McIntyre.	Two of
Their Honours agreed with the Chief Justice, and

matter is significant and that is not.	It depends
on the person's - - -

the sections in his taking it from the jury, that	in itself becomes relevant. Because it is a
question of law as distinct from a discretion - - -

and His Honour's findings were open to him and	"Well, there were three witnesses who did X and Y an exclusionary function and it is a question of
law there is a requirement that the actual evidence
be examined and a meaning given to the section.
That is the distinction I was seeking to draw.

MR KABLE:	That is exactly
DAWSON J:	So the trial judge asking this question may, in fact, be taking different circumstances into
account to those to which the jury might think important.
MR KABLE:	I would go much further, almost inevitably will

emphasis on the facts.	I do not quarrel with the
passage that Your Honour has just referred to,	subject to the test as posed.

briefly take Your Honours to the other judgments in	Hill. Justice McIntyre, in the major passages,
215, does not seem to go as far as the
Chief Justice, and that is at the bottom of 339, in the passage beginning:

fictional and out of touch.	I do not quarrel with
that debate, but - - -

something more than an ordinary man.	There is no
more to it than that.	I cannot put it any other

TOOHEY J:	You mean they are not mutually exclusive?
MR KABLE:	Yes, I am sorry.

MR KABLE:	That is all that sentence is meant to mean: that there will be many occasions when the same conduct
could be described as either.

TOOHEY J:	So we can take from your answer to Justice Brennan, a moment ago, Mr Kable, that you
read "wrongful" as qualifying both "act" and
"insult"?

MR KABLE:	Once you have got an insult, no.
DEANE J:	accept that it is an insult.
MR KABLE:	No, I agree with that, Your Honour.

or otherwise by a trial judge making an	adjudication pursuant to section 160(3) or as a
separate issue and I have already canvassed some of
the submissions I would make in answer to Your Honour Justice Deane. There is a decision as
to the place of proportionality in the Codes and
that is Sreckovic -

DEANE J:	No ordinary person?
MR KABLE:	No ordinary person, that is that no one insulted

whether there is something to go to the jury.	Now,
I follow what you have written here.	You say that

MR KABLE:	No, the answer to Your Honour is, it used to deal with it in a very complicated fashion but two years
ago we enacted a section identical to the now reads - - -

through all the tests to be applied.	I do wish to
refer, Your Honour, to those two brief cases.	I am
now at Eon page 4 of my submissions.	The first

MR KABLE:	It would or would not seem to be?
DAWSON J:	It would seem to be a different question.