Stingel v The Queen

[1990] HCATrans 50

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry

Hobart No Hl of 1990

B e t w e e n -

MICHAEL JAMES STINGEL

Applicant

and

THE QUEEN

Respondent

Application for special
leave to appeal

MASON CJ DAWSON J TOOHEY J GAUDRON J

Stingel

McHUGH J

TRANSCRIPT OF PROCEEDINGS

AT HOBART ON THURSDAY, 15 MARCH, 1990, AT 10.16 AM

Copyright in the High Court of Australia

HlTl/1/HS 1 15/3/90

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

learned friend, MR D.J. GUNSON, for the applicant.

(instructed by Zeeman Kable & Page)

MR D. BUGG:  May it please the Court, I appear with my learned

friend, MS H. LAMBERT, for the respondent.

(instructed by Director of Public Prosecutions)

MASON CJ:	Yes, Mr Kable.
11R KABLE:	Mav it please the Court. Earlier this morning I

handed to the Registrar of the Court the written

submissions upon which the applicant relies in this

matter. Those submissions, on page 1, set out the

reasons why it is asserted this honourable Court

should grant special leave to appeal in this matter

and on pages 2 to 4 articulate the arguments that would

be put in support of that application.

It is submitted, if it please the Court, that this

Court has stated on many occasions that consistency in

the application of the law is a critical component

of justice. It is my respectful submission that the

reported and unreported decisions in this State

relating to the law of provocation disclose that there
is not a consistency in the application of the law

both within this State and when the justice system in

this State is compared to that in other States.

It is further submitted that the law which ought to
be applied in relation to the issue of provocation
in this State is in all material forms the same as the
law to be applied in other States and that for the

current state of authority to be permitted to remain

would result in continued injustice, not only in the

applicant's case, but in such other cases involving

the issue of provocation as are likely to come before

the Supreme Court of Tasmania.

It is submitted that the authorities in this

State are in a state of disarray in so far as issues

of principle are concerned and it is submitted that

a close reading of BEDELPH, JEFFREY, to a lesser

extent HUTTON, ana the judgment in this case disclose

that no statement of principle can be extracted as

to the law to be applied in respect of the issue of

provocation and, in particular, as to the issue of what

characteristics of the accused ought to be attributed

to the ordinary man when the jury are considering the

objective part of the test as to provocation.

Further, as to the question of special leave, it

is submitted that the relationship existing, if any,

between the common law of provocation and the law of

provocation pursuant to section 160 of the CRIMINAL CODE

ACT of Tasmania requires articulation. The Tasmanian

decisions seem to hold that the common law is

irrelevant to the question of provocation. The law

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in Western Australia and Queensland seems to be that

the common law is of particular relevance and, in

particular, that resort ought to be had to the common

law to ascertain which characteristics of the accused

should be attributed to the ordinary man for the
purpose of the test of provocation.

Of course, the codes in Western Australia and

Queensland are GRIFFITH codes, to use the shorthand
phrase, whereas the code in Tasmania is a STEPHEN
code and, as Your Honours will have had the opportunity

to observe on page 2, reference is made to Canadian

authorities. The Canadian authorities are of

importance because the Canadian Criminal Code is, in

all material respects, identical to the Tasmanian

CRIMINAL CODE, both of which codes are STePHEN codes.

• The only difference is to be found in that there is not an equivalent to section 160(3) in the Canadian

code, and that is an issue with which I would hope

to deal later. But, nevertheless, the Supreme Court
of Canada, in the decision of HILL has indicated that
"the characteristics of the accused, save and except
for unusual excitability, pugnacity and ease of loss
of self-control are to be attributed to the ordinary
man for the purpose of the obiective part of the test.

MASON CJ:  And that is the proposition for which you contend

under section 160, is it?

MR KABLE:  It is, Your Honour, yes, and it is submitted that that

is the proposition that the Court of Criminal Appeal

went close to, if not completely found, in BEDEtPH's

case, but certainly in JEFFREY's and in this case

the Court of Criminal Appeal have created a group of

characteristics which the shorthand ohrase "exterior

characteristics" has been given to them, and what I

would propose to argue is that to talk about insult in terms of exterior characteristics is to fail to understand the true nature of what an insult is,

because to suggest that somebody can only be insulted

because of what our court has described as an

"exterior characteristic" fails to understand that

it will be, in all probability, far more hurtful to

insult somebody as to a mental or intellectual

difficulty than whether they have one leg, or whether
they have a particular ethnic origin, or whether the
colour of their skin might be different from the

person giving the insult.

Of course, the question of insult under our code,

in my respectful submission, has been, to all extents, forgotten. Necessarily there is a logic in suggesting that no insult could cause somebody to lose control

to the extent· whereby they might kill. Of course,
the common law took that position for a very long

time. It is necessary, in making that submission,

to distinguish between an insult and mere words being

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a narrative of events, but if I can come back to

insult; in 1924 in the CRIMINAL CODE of Tasmania

insult was recognized, as a matter of statute, if not logic, as giving rise to provocation which could lead

to the causing of death. Now, that ~as a far cry from

the common law position then and perhaps for the next

40 or 50 years. The question of the nature and extent

of an insult and how an insult might, given this

concept of ordinary man, which I will come to deal with

in a moment, operates has never been given real

consideration and it is submitted, as to the aspect of special leave, to create an artificial threshold

test of exterior circumstances is to fail to
understand that the most hurtful insult is likely

to apply to things other than exterior circumstances.

TOOHEY J:  Mr Kable, are you putting this argument on the

basis that section 160(2) is exhaustive as to what

constitutes provocation?

MR KABLE:  Your Honour, I do not need to go that far to answer

Your Honour's question. If it is exhaustive, then

I submit the arguments that I am about to put to the

Court do not lessen in validity so I do not need to go to the stage that it is exhaustive because of the

authoritative pronouncements that, in fact, sections

such as that articulate the common law as it is.

I do put that it is exhaustive when I come to deal

with the proportionality question. If I understand

Your Honour's question solely to relate to what

characteristics are to be attributed to the ordinary

man - - -

TOOHEY J:	No, what constitutes provocation?
MR KABLE:	Yes, exhaustive as to that.
MASON CJ:	Wrongful conduct or insult.
MR KABLE:	Yes, Your Honour.  Yes, as to that aspect, yes,

Your Honour.

TOOHEY J:  In that sense you are saddled with the notion of

"ordinary person"

MR KABLE:  I am. I cannot avoid that, but I say that is a critical

term.	Can I just take that matter one step further
with Your Honour.	The meaning to be attached to

"prdinary person" becomes a real issue in this case

for the reasons that Their Honours, Chief Justice Barwick

and Justice Gibbs, preferred that term in MOFFA that

the ordinary person, I submit, is a very different

person from the mythical reasonable person. The

ordinary person is very much what the jury finds to be

an ordinary person.

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TOOHEY J:  Yes, I understand that. It is still necessary t o

give content to the expression "ordinary person" .

MR KABLE:	Yes.
TOOHEY J:	But for the purposes of this argument we can take

it that you do not seek to find provocation outsid e

the operation of subsection (2)?

MR KABLE:	No, that is correct, Your Honour.
TOOHEY J:	Thank you.
MR KABLE:	As to the question of special leave - and I am

seeking to be cautious not to embark upon the merits
because I am addressing the Court as to special l e a ve -

the question of what meaning should attach to

"ordinary person" becomes a critical issue becaus e

in the early authorities the terms "ordinary person"

and "reasonable person" are used, it seems,

r	interchangeably. The Parliament of this State chose
to use the phrase "ordinary man", posed rh e toricall y
what is an ordinary man, easily answered, "not an
extraordinary man", but where is the line drawn when
you are taking a defence away from the jury , and that ,
in my submission, highlights the critical nat ure of the task of a jury in a case like this because it is not a fact-finding task in the sense of where do e s t he
truth lie, but it is a societal evaluation of conduct
as to the concept of what could an ordinary man do, and that is more a jury function, if one can properly use such a phrase, than deciding which of
two people is telling the truth.

MASON CJ:  But it is not so much the difference between an

ordinary man and a reasonable man, is it, as a question

of to what extent you look at the characteristics of the accused in determining the_ n.a.ture and the ex tent

of the provocation t hat is offered.	That is the real
question, is it not?

MR KABLE:  That is the real question but I would put a sli ght

caveat on that , Your Honour, recognizing that we ar e

talking about an ordinary man, not a man acting on

reason. That is the distinction I would draw as to t hat.

So I would say " yes" to Your Honour's question, but

recognizing that the ambit of "ordinary man" is so

much wider, particularly once you endow him with the

characteristics of the accused that I submit are

appropriately endowed upon him and, in this case, this

provides · a classic example of that. So the

answer to Your Honour's question is yes, but it goe s

a little bit further.

MASON CJ:  Can I ask you one question about the basic

proposition for which you contend which appears 1n

the second sentence on page 2 of your outline. I

can understand a proposition that says, "We ll, you

HlTl/5/HS	5	KABLE	15/ 3/ 90
Stingel

look to the characteristics of the accused for

all purposes necessary to determine the nature and

extent of the provocation but you always look

at the ordinary man for the purpose of determining

whether or not there is a loss or could be a loss of

self-control". Why do you include these words

"exceptional pugnacity and excitability" in that

proposition?

MR KABLE:  Because historically, Your Honour, those are the

words that that have been used. For example, in

BEDELPH they are a legacy of the common law where

no characteristics were attributed to - I would be

happy for them not to be included, but I felt to

stibmit that those characteristics ought not to be

there was to take the law one stage further than any

cases that I had located had taken it.

MASON CJ:	Well, are not "pugnacity and excitability" elements in the capacity for self-control?
MR KABLE:	Yes, Your Honour.  So I am agreeing with you. The
reason I put them there is that historically no
characteristics were taken into account. I am
basically submitting, I suppose in a non-legal way,
that anything to do with the gravity of the insult ought to be taken into account, but that characteristics which bear upon the loss of control ought not, because that is as I read - I do not read any of the cases going further than that and therefore there is no proper basis for me to extend the argument further
than that, and all the academic writings, which are
critical of various aspects of this part of the law, recognize that if an objective test is to remain it
must remain at that part of the test. That is the
answer to Your Honour's question as to that.
MASON CJ:	Yes.
MR KABLE:	Your Honours, I am still referring to page 1 as to

the reasons why, in my respectful submission, special

leave to appeal ought to be granted and I was n9ting

that there is a real issue as to the relationship

between the code and/or the codes, and/or the

common law, because, it has been held and written upon

that Western Australia and Queensland assert that the

common law as to this question is the same as the code. provocation is:critical. In BEDELPH three members of

our Court of Criminal Appeal applied CAMPLIN. In

JEFFREY two members of our Court of Criminal Appeal

distinguished CAMPLIN saying that it could be

distinguished because it related to a piece of

statutory interpretation.

Chief Justice King in South Australia in ROMEO

has said that it states the common law, irrespective
of whether it can be said to be based on the particular

6   15/3/90

H1Tl/6{HS St1nge

statute. It seems to be recognized in Victoria in

the case I have referred to here in DINCER that the

principle in CAMPLIN is, in fact, the common law, and

that has been applied in subsequent decisions by the

Court of Criminal Appeal in Victoria, and, thus, it is important to look at what happened in this case because Mr Justice Nettlefold relied on the common

law, but not the common law as articulated by this

honourable Court in the series of decisions of

PARKER, JOHNSON and MOFFA, but went back to MANCINI

and to HOLMES and, in my respectful submission, found
the law to be what it was some 25 years ago.

So there is an issue as to what place the common law has when this Court is deciding which characteristics

of the ordinary man are to be attributed to the accused

because if the Court does not accept the argument in

principle that you cannot give an insult a meaning

in vacuo - and I would submit that that is a self-

evident fact - that if you are going to have an insult

as creating a circumstance in which it is legally

permissible to raise the defence of provocation,

then it cannot be an insult in vacuo, and once you
take that step, as a matter of principle, my
submission is, that one must then endow the ordinary

man with all characteristics of the obiect of the

insult which are relevant to understanding the

insult.

MASON CJ:  Is not Mr Justice Dixon in PACKETT against you on

that point at pages 217 and 218?

MR KABLE:  Your Honour, Mr Justice Dixon in PACKETT, I would

submit, as to that point is not against me, but

obviously I have to deal with Mr Justice Dixon's

comments in PACKETT because so much reliance has been

placed upon those comments in the history of decisions

in this State and perhaps I could just turn to the

pages to which Your Honour refers.

The issues in PACKETT which ground the submission that His Honour Mr Justice Dixon is not

against the proposition that I just put to Your Honour

are as follows:  firstly, His Honour was not

considering the question of what characteristics

of the accused are to be attributed to the ordinary

man, and that issue did not arise in PACKETT; secondly,

a majority of Their Honours in PACKETT decided the

case on the basis that there was no sufficient

evidence of a loss of control and that concept fits

much more easily with His Honour's observations at

the bottom of page 217 than does the concept of trying

to limit the activities which a jury might find are

possibly the activities of an ordinary man. Those

issues become clear from the judgment of Justices Starke

at page 206 and Ghief Justice Latham at page 200

where Their Honours make the critical findings that

HlTl/7/HS

Stingel 7 15/3/90

there was no evidence in this case of actual loss

of control. So the failure to leave provocation to

the jury in this case, in my respectful submission,
was for that reason.

A trial judge adjudicating upon an application that provocation should be left is much - sorry, can

I come back at it another way - can more easily make a finding that there is no evidence of actual loss

of control than, in my submission, can a trial judge

make when considering in a given set of circumstances

the ambit of conduct of the ordinary man. So that

is the first observation I would make to Your Honours

as to His Honour Mr Justice Dixon's observations in

PACKETT. Secondly, it is particularly important to

bear in mind His Honour's observations in that case

when one has regard to His Honour's observations

some 25 years later in PARKER's case where His Honour

poses, in my respectful submission, at page 616, the

best possible test that could be articulated as to

whether provocation should be led - 111 CLR,

Your Honours.

This case, of course, as Your Honours will recall,

went to the Privy Council, and the Privy Council -

His Honour Mr Justice Dixon and Mr Justice Windeyer

were in dissent in the High Court and the Privy Council

overturned the High Court majority decision. The

critical passages in Mr Just ice Dixon's judgment - ,1ell the

the major paragraph starting at the top of page 616

and, in particular, where His Honour said about half

the way down:

But on the question of provocation

there has been no decision of the jury

and the question is whether they ought

is to be considered just as if the jury had decided it in favour of the prisoner

to have been allowed to decide it.

question arose whether that decision

and, by some freak of procedure, the

could be sustained.

Now, that observation becomes all the more forceful

when one is considering, for example, the question
whether there was evidence of loss of control because

a court, situated as a Court of Criminal Appeal,

can examine the evidence and can say as a matter

of law, "Yes, or no, there was evidence that would

ground that finding of fact".

When, however, the question requiring adjudication is an examination of the potentiality of an ordinary

person with defined characteristics reacting in a

particular fashion, then the range increases
dramatically and it is my respectful submission that

that passage, coupled with the passages at page 628

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at the bottom of the page, which I will read to

Your Honours briefly in a moment, and page 630 where

His Honour makes particular observation that with

time the degree of conduct encompassed by provocation

is likely to significantly increase, and His Honour

observed about 10 lines from the bottom of page 628:

We are not living in the conditions

of the sixteenth, seventeenth or

eighteenth century. According to the

standards governing our society in the

later nineteenth century and the

twentieth century the succession of

events and the conduct -

and I do not read the remaining passage aloud.
His Honour continues with that theme on page 630 where

His Honour made a reference back to duels and

personal quarrels in the second paragraph on the
page and, of course, on my reading of Your Honour

the Chief Justice's judgment in VAN DEN HOEK the

same principle can be extracted, that is that as

time goes on, while provocation remains - and that 1s a

side is sue - that the variety of things ·that the

ordinary man might or might not do is likely to

increase. It is a very different world, obviously

from 1937. The stresses are different, the way in

which court cases are argued are different and a

moment's reflection as to the type of stresses - we

arc talking ordinary people. The issue of youth

suicide was hardly something that occupied the courts

or the parliaments in 1937.

The dissemination of information in a society

such as that existing at the moment unquestionably

increases the pressure on citizens on a daily basis

and this is why it is submitted that a judicial

determination that an ordinary man with X characteristics

could not do something ought to be made very heavily

bearing in mind the warning of Justice Evatt, in

fact, in PACKETT's case, that there is a very grave

responsibility before making that judicial

determination which is, in fact, that the jury could

not have a reasonable doubt about.

Now, as Your Honours would see from the written

submissions I have made, I come in due course to

complain as to His Honour the trial judge and the

Court of Criminal Appeal interposing the word "would"

when a discussion of the ordinary man is embarked

upon, rather than "could" and, of course, that change

is critical because once we talk about an ordinary

man would do something we are going back to the

reasonable man.	But clearly, in my submission, as
a result of JOHNSON, MOFFA,	CHUN CHUEN, the test
is "could".	The authorities say- and His Honour

Mr Justice Dixon said that in PACKETT.

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That is a long answe~ to Your Honour

the Chief Justice's question but it is important,

in my submission, to follow through how His Hoftour

Mr Justice Dixon has dealt with this issue to give

true meaning and effect to that phrase "overriding

responsibility" and to be cautious, if I might

respectfully submit it, as I did in the affidavit,

not to get involved in a cyclic argument as to that

phrase which can result in the diminution of the conduct coming within the notion of provocation.

Surely there is a responsibility on a trial

judge to ensure that where there is no factual basis

a defence does not go to the jury, but when the

aspect which is said not to give rise to the defence

is the potential reactions of the ordinary man,

rather than the existence of provocation, or the
existence of a loss of control, each of which involves
the judicial analysis of facts and evidence, but which

involves speculating as to potential reactions, then

it is a very different type of task and that word

"speculating" becomes important in this area of the

law because in the cases, as I read them, where

provocation has not been left and where it has been

held appropriately that provocation has not be left

the c·omment frequently is made - c1nd again, it was

either Your Honour the Chief Justice or the other

judgment in VAN DEN HOEK's case - the jury should not

be left to speculate as to what might happen.

Now, that phrase can have no application when

they are involved in an adjudication which compares known facts as they found them to what they say the

standard of the ordinary man is, and that is why, in

my respectful submission, great care has to be taken in this part of the law of provocation because, as I

said a moment ago, there can be no more important
jury function in any society, whether it is in

Sydney or Scot ts dale, with 3000 people in the country,

in assessing the facts as they find them in a case

according to their collective notion of the potential

reactions of an ordinary man so situated.

MASON CJ:  Can I just ask you how your proposition works in

practice? Take the case of an insult offered to an

individual who has had a long history of mental

instability, the insult being that he is a lunatic.

Now, one can imagine that, to such a person, the

provocation is extremely grave, but then one has to

apply the criterion of the ordinary man's capacity

to control himself. How do you do it?

MR KABLE:  Your Honour poses the very question that a number

of the academic writers pose when they say how can you, if this is the law, rationalize the objective and the subjective approach, because you have to say

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to a jury, "On one hand, when you are considering
the gravity of this insult, you consider that

this man is unstable and that the appellation

'lunatic' is an appropriate one, hut ·when you come to consider

his response you have to take no account of that

and you have to turn a blind eye to it and you have

to say, 'He has to react as the ordinary man''".

There is an essential illogicality in it. It is an

unanswerable question, Your Honour.

The answer, as a matter of legal submission, 1s

that the common law has at least developed as far as

attributing all the characteristics as far as the

gravity of the insult is concerned or, certainly, my
submission is it has in Victoria, South Australia
and in this Court, and the fact that it puts a jury

in what is perceived to be an impossible position -

not impossible, that is to overstate it - a difficult

position, is not an answer to the way the law is

developed.

(Continued on page 12)

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MASON CJ: There might be a very good reason for us shrinking

from adopting your proposition when it is going to

place the jury in that situation.

MR KABLE:  It would only, with respect, be a good reason for

the Court to do that if the Court were to say that

the determinations made by the Court of Criminal

Appeal in the other States, where that is the

very direction that is given, are wrong and in this
honourable Court articulating what the law that ought

to be applied is because it is my respectful submission

it would not be. If I may put the submission this

way in answer to Your Honour; it would not be

appropriate to use that difficulty to say, "If we

think the law in Tasmania is out of kilter with other

'	places, then we ought to leave it that way because, as I have sought to demonstrate and will seek to demonstrate, clearly there is a fundamental difference,
as black is to white. So that is the answer to
Your Honour's question and my submission would be that the corrrrnon law has developed. It has developed
because the law of provocation is directed to the mind of the actor, not for any other reason.
And I mention in my submissions that the debate as to justification and excuse has a real part to
play in this area of the law because what we are dealing with is an excusatory defence which, therefore,
cannot be, to use the phrase used in one of the English
cases, a floodgates opening exercise. The perpetrator
is still the subject of condenmation but it is a
recognition, as it was when it developed, of the
fraility of human beings, and particularly where the Parliament here has so put it in.

If I were 20 years ago seeking to persuade the

court that mere words ought to constitute provocation,

then I could respectfully be met with the answer,
"Well, come on, you know the law has always declined

to take that step". But'where the Act of Parliament puts the word in, and where the courts historically,

in my submission, have balked - the courts in this

State, have balked at giving it real meaning, then

the answer is that the time has come, in my

respectful submission, for it to be given real meaning

and to bring the law here into line with what is

clearly, in my respectful submission, the corre~tly

decided law in each of the other States in this country.

That is the answer I put to that.

I recognize - and, Your Honour, m Your Honour's judgrrent

in VAN DEN HOEK, quoted from some of the academic

writings in England, from Ashworth and, of course, years, I have a list of them - I was not going to

refer to them all. There has been about six or

seven articles in the Criminal Law Journal pointing

H1T2/l/LW	12	15/3/90
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out the apparent illogicality as to some aspects

of the developments in the law and with that

apparent illogicality, I cannot disagree. But

that is not the issue, if I may respectfully

argue that way. The issue is what directions

are going to be given to a jury in this building
in this State and what directions are given in
other States, and in Canada, when the statutory

provisions are on all fours. And certainly the

Supreme Court of Canada has had no difficulty

in accommodating the illogicality referred to
by Your Honour the Chief Justice in its decision

in HILL and the Courts of Appeal of Ontario and

one of the other States have,in fact, extended

it. I refer to those three decisions - - -

MASON CJ:	Can you take us to HILL.
MR KABLE:	Yes, Your Honour.

MASON CJ: It might be convenient to look at that now.

MR KABLE: That is the report that I have cause to be presented

in Court, Your Honours, REG V HILL, 25 CCC 322,

at page 322 to 336. There is a aoman number (iii).

There are about four pages there that are of

particular relevance but the passage that I take

Your Honours to is the passage under the heading:

The appropriate content of the ordinary

person standard.

The judgment of Chief Justice Dickson was concurred

in by a majority of the court but as to this aspect

of the case, there was no dissent by the members

who dissented as to other.

The real issue, if I could just indicate,

in HILL became, not what characteristics do you

attribute to the accused, but what do you tell the

jury about it. That was the critical question on

which Their Honours parted company in that case.

TOOHEY J: It is not "what characteristics you attribute to the

accused, is it, it is what characteristics you attribute

to the ordinary person?

MR KABLE:  I am sorry,' I misstated that, Your Honour, ves ..

What characteristics of the accused do you attribute

to the ordinary man.

TOOHEY J: Well, not even that necessarily.

MR KABLE: That is the way I sought to put it, Your Honour,

because that seems to be the way the question has

been posed in the cases that are referred to and

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that I will refer the Court to. The critical passage

probably appears four lines from the bottom:

Thus particular characteristics that are not

peculiar or idiosyncratic can be ascribed

to an ordinary person -

TOOHEY J:	I am sorry, where is that?
MR KABLE:	At the bottom of page 335, Your Honour.
MASON CJ:	But now that seems to be rather different, does it not?

It seems to suggest a distinction between characteristics

that might be described as ordinary, possessed by the
ordinary man, and characteristics that are not

ordinary, that are individual.

MR KABLE:  Yes. His Honour's decision draws the distinction

between what His Honour describes as his

idiosyncratic characteristics but His Honour

certainly attributes a number of characteristics.

What happens is that - - -

MASON CJ:  But to come back to the case of the accused person

who has a history of mental instability, would not

the passage of 335 exclude that history of mental

instability as a characteristic that should be

attributed to the ordinary person on the footing that

it is not really ordinary? It is idiosyncratic.

MR KABLE: That passage, taken in isolation, would, Your Honour,

yes. To take Your Honour's example, would do that.

That is why it is necessary to look at this decision

in the light of the other decisions that have ~

taken the common law steps further. For example,

the cases after CAMPLIN, NEWELL in the Court of

Appeal in England, MCGREGOR and TAAKA in New Zealand.

MASON CJ:  Do you concede that HILL does not take you as far

as you want to go?

MR KABLE:  If Your Honour will just bear with me for a moment.

No, I do not, Your Honour, because one has to go back

to the passage above - that paragraph, the very

paragraph that I have quoted to Your Honour because

Their Honours are there talking about the "collective

good sens~'of the jury:

general characteristics relevant to the

provocation in question.

TOOHEY J:  I must say I have some difficulty with this distinction

between "ordinary" on the one hand and "idiosyncratic" on the

other.

HlT2/3/LW

Stingel 14 15/3/90

MR KABLE:  So do I, Your Honour, and that is why I submit

that what has happened with the law as developed

in England. - CAMPLIN -:- and New Zealand - MCGREGOR, TAAKA - is

that in real terms, any characteristics which bear

upon the gravity of the insult - and in South

Australia, Victoria, and New South Wales - any

characteristics which bear upon the gravity of the

insult have been held to be relevant to that

question and it has been ruled that they should be

taken into account.

TOOHEY J:  And yet the notion of'ordinary persorr'in the code

is presumably there as some sort of a brake
because it is contrasted with the second question

whether the conduct did,in fact,cause the accused

to lose self-control.

MR KABLE: Absolutely, Your Honour, and this is why I have

raised the question in the written submissions

about whether the code is frozen in time because

there is a judicial pronouncement -- the courts

here have held that 'brdinary man"means what the

common law said it meant and what the common

law has said "ordinary man" - - -

TOOHEY J:	What the common law said it meant or says it meant?
MR KABLE: "Says", I am sorry,	I take Your Honour's point - says.

And what the common law says it means has changed

dramatically. There is an apparent illogicality

in much of this area of the law. I have not sought

to quarrel with that. What I have sought - - -

MASON CJ: That is part of your case really, is it not?

MR KABLE:  It is fundamental to my case.and what I am saying is

that in all the illogicality, we have not got to the top

of the ladder. There is a unanimity everywhere else,

I submit, except here.

TOOHEY J: You are coming very close, though, I think, Mr Kable,

to blurring the two elements of the provocation,

namely, the ordinary person and the accused because
you ap~ear to be wanting us to equate ." ordinary

person ',in this case at any rate, with the accused,

possessing all the characteristics, instabilities,

whatever they might have been, of this particular

individual . ·

MR KABLE:  Yes. As to the gravity of the insult, I am,

Your Honours, and I seek to do it,as a matter of

principle, to give the word "insult" meaning

and as a matter of legal comity because that is

what our Court said in BEDELPH, the Chief Justice

Mr Justice Crawford and Mr Justice Everett and

HlT2/4/LW	15	15/3/90
Stingel

it is what the other cases that I have referred

to, the Supreme Court of Western Australia,

South Australia, Victoria, New Zealand -

recognizing that in this debate there is an

illogicality, particularly if you take something

that is idiosyncratic.

TOOHEY J:  What does that mean? I mean, if a person possesses

a particular racial characteristics, you would

hardly describe that as idiosyncratic. If they

subscribe to some rather off-beat religious belief,

is that idiosyncratic?

MR KABLE:  I do not know, Your Honour, because that is the

word that is used in many of the decisions to limit

the conduct that is going to come within provocation

and it is one of those words that is going to mean

different things to each person who writes it.

Perhaps I could answer Your Honour's question in

this way: what has been sought to be done in some

jurisdictions to overcome the issue troubling

Your Honour,and that Your Honour the Chief Justice

has raised, has been that the Court of Appeal iri

New Zealand talked about degrees of permanence of

characteristics. They sought to introduce that if

you have just got a fleeting characteristic that is

there for the weekend, then you will not be able to,

on any view, rely on it, but if there is a degree

of permanence or if it is relevant to the insult.

Now MCGREGOR was the Court of Appeal decision

in New Zealand and, in fact, that was followed by

the Court of Appeal in England in NEWELL

and in a case that I would be referring Your Honours

to in due course, the Court of Appeal in England

seems to have even avoided the limitation it put -

sorry, the Court of Appeal in New Zealand has

created the limitation of permanence or semi-permanence -

semi-permanence is a better phrase,- and then in

a case called TAAKA, which,talking about mental

instability, it may be appropriate to just refer

Your Honours to that case. It is a case of the

Court of Appeal in New Zealand, TAAKA 1 (1982)

NZLR 198. There was psychiatric evidence

relating to a likely reaction to an insult and the

critical passage upon which I would rely appear
at page 201 in the judgment of Sir Robin Cooke,

right at the bottom of the page. The psychiatric

evidence related to the particular personal

history of the accused and the likely meaning

of a particular insult and Their Honours said:

HlT2/5/LW	16	15/3/90
Stingel

We think that it is capable -

of the psychiatric evidence -

of supporting an inference that the appellant's

characteristics could cause him to feel the

insult of Hongi's conduct unusually deeply

and impel him to lose self-control and take

public revenge for an insult publicly known.

Counsel for the Crown indeed accepted in this

Court that it would be evidence of "characteristics"

and that is the word used in the section.

MASON CJ: Is the section set out in the judgment or was it - - -

1:1R KABLE: It is a different section.

MASON CJ: Well, that is what I thought.

1:1R KABLE:  It is a different section but the Court of Appeal

in England have held that what the Court of Appeal
in New Zealand said in MCGREGOR, in fact, stated

the common law, even though it was in reference

to a section. There is this conjoining of -

that is probably not the word. CAMPLIN related

to a statutory provision but has then been

interpretated as stating the common law.

MCGREGOR related to a statutory provision and

has then been taken in some jurisdictions to say

the common law. Every time one goes up a burrow,

if it please the Court, one finds this type of

occurrence in these authorities.

The reason I referred to MCGREGOR was because

there was an attempt to limit characteristics but

this case of TAAKA seems to take, certainly as far
as the New Zealand Court of Appeal is concerned,

the law much further than they did in MCGREGOR.

TOOHEY J: Well, as you read the judgment to us, it looks,

apparently, to the individual and the characteristics

that the individual possesses. Well, it is a bit

difficult to apply that test, and only that test,

in re1.ation to the code when you have the notion of

ordinary person, whatever that might mean.

1:1R KABLE:	Why I say that becomes important, Your Honour,
is for the reason I was just seeking to state it,
that certainly in England what the New Zealand
Court of Appeal has said about its section has, in a case called NEWELL, been interpreted as the
common law. And that is referred to in Victoria
in DINCER's case and Mr Justice - - -

HlT2/6/LW	17	15/3/90
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DAWSON J: Just before you leave TAAKA, what was decided there

was that the evidence went to whether there, in fact,

was a loss of self-control. That is all it went to,

did it not, not whether there was provocation?

MR KABLE:  That is correct, Your Honour, but the fact

that Their Honours were prepared to embark upon

a consideration of the peculiar vulnerability -

DAWSON J:  But only in relation to that question, whether

there was, in fact, a loss of self-control.

MR KABLE:  Can I put it this way, Your Honour: as to whether

there was a lack, there was no suggestion that
in considering the objective part of the test

or the characteristics, that this should

not be taken into account. That is the way I would put

it to Your Honour.

MASON CJ:  Mr Kable, so far we have been ftalking, as it were,

in the abstract, without relating your propositions

to the particular facts of this case. Now, could

you succinctly indicate for us what you say was

the wrongful act or insult in this case and to what
extent you are contending that characteristics of
the applicant are to be taken into account in

assessing the gravity of the provocation.

MR KABLE:  The wrongful act or insult was the uttering of the

words described in the judgments, in circumstances

where - I am conscious Your Honours have

read the judgments - _irmnediately

prior to or at the time - let me not be oblique.

The accused has come to the car. There is sexual activity going on in the car and the deceased

says, "Piss off you cunt, piss off", and continues
with sexual activity at the time of and
subsequent to the uttering of those words.

That is what is alleged to be the wrongful act

or: insult.

MASON CJ: First of all, you are saying that the words

constituted an insult?

MR KABLE:	Yes.
MASON CJ:	You are not suggesting that the activities constituted

an insult?

MR KABLE:  No, I am not relying on that argument that I put

to the Court of Criminal Appeal that there was an

offence contrary to section 122 of the CRIMINAL CODE.

TOOHEY J: That is not necessarily the entirety of the argument.

That is only an aspect of it. Conduct might

constitute provocation in particular circumstances.

H1T2/7/LW	18	15/3/90
Stingel·

MR KABLE: Sorry, I just wanted to make clear - I was not relying

on that point. What I say about the conduct is

that the continuation of sexual conduct at the time
of, and subsequent to the utterance, which by
definition meant that the deceased knew the accused

was there, could be seen by the jury to constitute

a continuing insult by conduct, could be found to be
a wrongful act within the meaning of the sections

in the POLICE OFFENCES ACT that I referred to, but

that is a very minor point.

MASON CJ:  So we can take it, can we, that you are not really

relying on wrongful acts as much as - - -?

MR KABLE:	As insult.
MASON CJ:	As insult.
MR KABLE:	Insult by the utterances and the continuing sexual

activity, knowing the accused was there with the

door open.

MASON CJ: Yes.

MR KABLE:  That is by far the most - if that insult, as

articulated by myself, does not persuade the Court

that an ordinary man could have lost control in

those circumstances, the fact that there was a

minor breach of the POLICE OFFENCES ACT is unlikely

to. I am saying it is important to remember there

were minor breaches but the gravamen of the conduct

is as I have articulated it.

The second part of Your Honour the Chief Justice's

question is, given that, how do I say provocation

should have been left; that facts in the case

succinctly raise the issues that I am seeking to

raiseZ

TOOHEY J: There is a question before you get to that and that

is when the judges invited to leave provocation to

the jury, 'OU have to be persuaded in terms of

section 160, that it is a proper case to leave to the

jury. Now, what is the notion of'brdinary person"

have to say in this situation?

MR KABLE:  My submission is that the ordinary person, in this

situation, is endowed with all the characteristics

of the accused and they are the ones that I was just

about to refer to.

TOOHEY J: Well, is it too simplistic to say that your argument

is that "ordinary person" in the code, in this

particular provision, equals the accused?

HlT2/8/LW	19	15/3/90
Stingel

MR KABLE:  I cannot take it that far because - - -

TOOHEY J: Well it would be difficult to because it would mean

simply blurring two concepts in the section.

MASON CJ:	You do not want to take it that far, do you?
MR KABLE:	No, I do not.
MASON CJ:	You do not want to take that far?
MR KABLE:	No, I do not want to and I do not need to.
MASON CJ:	You have got to take an ordinary man with his

capacity for self-control.

MR KABLE:  Yes, and I have not sought to argue to that.

It is really important to distinguish. There

are two steps in the process, in my respectful

submission. There is the attributing of the

characteristics to the ordinary man and then

the assessment of the potential reactions

of that character thus created. It is really

important not to blur those two steps, as I submit,

happened in the Court of Criminal Appeal in

Mr Justice Underwood's judgment in the last page of it, but I will come to that.

As I understood Your Honour the Chief Justice

what you wished me to do was to go through the

factors that I would be submitting ought to be

endowed upon the ordinary man, which would then

have required the leaving of provocation.

MASON CJ: Yes, I wanted you to indicate what particular

characteristics you were attributing to the

ordinary man here.

MR KABLE: Yes, if I could answer Your Honour. Implicit in

the submission I make is that the general life

experiences of the accused are to be taken into

account. There is as follows: an undisputed,
either strong love for, and/or infatuation,

existing for in excess of two years, so strong

that the accused tried to take his own life,

That that was not at the relevant times

reciprocated, may or may not increase the

intensity of the feeling, in so far as the

accused is concerned. There was a perception

by him that the person for whom he had this

affection was being used and that perception

grew given the relationship he described himself

having with the girl, that is, that she had confided

in him that she had been sexually abused and he had

respected that confidence and conducted himself without engaging himself in sexual intercourse.

HlT2/9/LW	15/3/90
Stingel

That on the night in question she was distressed,

crying, to a sufficient degree that others were
required to console her; that he considered

helping her but was frightened and that it is

inevitable that a major cause of such distress,

if not the sole, was the activities of the deceased.

That the accused raised the issue of the distress

of the girl with the deceased, who at that stage

was either in the character of the victor, that is,

the girl was "with him" or the hunter, that is,

he was seeking her out. That he came upon the

car in the Scottsdale football ground, that he saw

the male only and that,upon opening the door,

he observed sexual activity; that he was told

"Piss off you cunt, piss off"; that he had an

uncertain state of mind as to how the sexual activity

came about, that is, that she was being used;

that the sexual activity continued after they knew
he was there and that the insult, in terms of the
spectrum of insults - if we are going to have a

ladder about things that you can call people, the

insult was right toward the top of the ladder,

particularly if his perception of himself was that

it was partially or wholly justified, that is,

that he really was someone who just was a low life.

MASON CJ:  Now to what extent did the Court of Criminal

Appeal exclude these characteristics or

circumstances?

MR KABLE:  The Court of Criminal Appeal, in terms of analysis

of the chacteristics - if Your Honour will just

bear with me for a moment - Mr Justice Nettlefold

did not give any consideration to this issue at all.

His Honour resolved the matter. His Honour gave no

consideration to the question of wrongful act

under the POLICE OFFENCES ACT. He utilized the

proportion test to ground His Honour's decision.

There was no analysis of "insult" or what it meant and quoted from his own judgment in JEFFREY

which His Honour had recognized in argument was

contrary to every other judgment that has been

written as to this area, and there was nothing about

characteristics.

(Continued on page 22)

H1T2/10/LW	21	MR KABLE	15/2/90
Stingel

MR K.ABLE (continuing):  Mr Justice Underwood accepted that

the undisputed evidence was that he was in love and

or infatuated with the -

MASON C.:Jf:  Did he draw a distinction between being"in love"and

being"infatuated',' in terms of attributing the

characteristic to the ordinary man?

MR K.ABLE:  No, Your Honour, and the trial judge said that it

was only prepared to go as far as "in love". The

trial judge was not prepared to go to the stage of

being "infatuated" or "obsessed". "Obsessed"was

probably a bad word on my part and I have sought

to avoid it today. Intensely or strongly or

consumingly "in love" and Mr Justice Wright agreed

'	with Mr Justice Underwood, respectfully in my
submission, put his own view on the facts and put
a value judgment on insult. So this critical
question was not dealt with per se. Can I just
come back - - -

MASON CJ: What do you mean by that?

MR K.ABLE: Well, Mr Justice Nettlefold just avoided, if I

might respectfully say so, the issue of answering

the argument, "What characteristics do you attribute

to the ordinary man and therefore which ones of the

accused will we attribute to the ordinary man in

this case?" There was just nothing. Mr Justice Underwood

found that the accused was in love. I should say this:

none of the submissions that I am putting here are

other than were put to the trial judge or put to the
Court of Criminal Appeal. There are no new submissions

in what I put to this Court. There was no analysis of

whether the continuing sexual activity at the time of

or subsequent to the insult was likely to increase its

likely response or increase the degree to which

somebody was insulted - - -

MASON CJ: But that is not a question of characteristic or

attributing a characteristic to the ordinary person,

is it? I mean, that is part of the setting in which	one assesses what is the gravity of the insult, or
what is the nature of the insult.

MR K.ABLE:  Yes. His Honour Mr Justice Underwood,of Their Honours,

in his narration of the facts at page 583

noted at line 6 that:

the undisputed evidence disclosed that the

appellant remained infatuated with Miss Goss.

And then the critical passage in His Honour's judgment

is to be found at page 603 where -and it is a passage

I wanted to refer to for a number of purposes. If I

can take Your Honours to the sentence beginning:

HIT3/l/CM	22	15/3/90
Stingel

But the objective nature of the threshold

test would disappear 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.

So His Honour has rejected it and it is the

critical characteristic. In fact as has been

observed in many cases there may be a characteristic

on which the whole case will be determined and that

is the characteristic in this case.

MASON CJ: Yes, I had intended to put that to you before when

I said that Mr Justice Underwood had not attributed

to the ordinary man this depth of infatuation, which

you contended was a characteristic that should have

been taken account of.

J:1R KABLE:  Yes. His Honour has gone further. His Honour has

gone to the stage where His Honour was not prepared

to attribute the strength of feeling. So again, if

we are looking at the state of mind of the actor,

His Honour has said even the strength of feeling is

not a characteristic.

MASON CJ:  Now could I ask you a question about the expression

"exterior circumstances"?

J:1R KABLE:	Yes.
MASON CJ:	Now that seems to connote or denote some difference

between external characteristics and, for example,

mental attitudes. Is that what it is designed to

convey?

J:1R KABLE:  In as much as I can answer for His Honour

Mr Justice Cosgrove who created this shorthand phrase~ ---

MASON CJ: Yes, in the earlier case.

J:1R KABLE:  - - - yes. One assumes, for example, it would not

include stuttering and impotence, of course, was

the example that filled the cases. Of course,what is

exterior circumstance going to do with impotence?
it is physiologically caused then,no doubt,it comes
within and if it is caused because of some mental
difficulty then, no doubt, the accused in the

relevant case would not be entitled to the direction.

I mean it is a phrase with which, in my respectful

submission, severe criticism can be lodged because

again it fails to understand the nature of an insult.

HIT3/2/CM	23	15/3/90
Stingel

McHUGH J:  But are not all these matters that you are putting

irrelevant? I have difficulty in seeing that

this is an.insult. These words might be offensive,

but you have got-to get.it out of the word "cunt",

have ],OU not? ·

MR KABLE:  Yes, that is the only word you can get it out of,

yes, Your-Honour.

McHUGH J:  So, if he had said "clear off" or "get going" you would have no casE

MP_ KABLE : Absolutely. Except for the conduct, can I just be assumed

to leave the conduct?

i.vicHUGH J: Yes. So, it is the contz:nptuous nature of that word in the

setting, is it not?

:MP. KABIE: Yes.

McHUGH J: 1~ell, does it add anything to be adding these other characteristics?

If it is something that is said contemptuously - - -

MR KABLE:	It does,Your Honour, because of the prior relationship.
It is the victor using that word to the man who he,

by definition, knows, inescapably on the facts,knew had a strong feeling for this girl that he is with.

So it must. Here, in that setting, having had her

distressed and said - I mean its - - -

McHUGH J:  We are talking about whether it would make the

ordinary man, the ordinary person, lose his self-control.

MR KABLE:  It is unlikely to make the ordinary man - this is why

the characteristics of the accused become critical

and the scene in which it occurred.

McHUGH J: Another question is, what is meant by losing the

·power of self-control? Do you really have to go so far

as to take the sort of action that the accused did, or

is it sufficient that you would lose your self-control

that an ordinary person might swear back in?

MR KABLE: This raises the notion of proportionality, as I

understand Your Honour's question, and it is the

loss of self-control that the section focuses upon.

Surely it is a loss of self-control causing death, but it is a loss of self-control and - - -

.

DAWSON J:  In other words the ordinary man may lose his

self-control, but not go on to kill?

MR KABLE:  The ordinary man may lose his self-control so that

he does the act.

DAWSON J: It does not have to be a loss of self-control by

an ordinary man leading to a killing?

HIT3/3/CM	24	15/3/90
Stingel

MR KABLE:  Not as the section is articulated. It is the

loss of control with the factual consequence.

DAWSON J:  The ordinary man may have lost his control but may

not have stabbed the man to death. Nevertheless the

test is satisfied.

MR KABLE:  Yes. Yes, that is the way I have put it, Your Honour.

Can I come back to Your Honour? The question of

proportionality is bound up in that question, but

could I just go back, Your Honour, to - surely the

kernel of this case is the use of that word. What

that is going to - - -

McHUGH J:  By the way, who carries the onus of proof under

this?

MR KABLE:  The Crown carried the onus of proving beyond

reasonable doubt that it was an unprevoked killing.

I was going to come to that. What the trial judge

has said is that no jury, - sorry to digress while

answering Your Honour's question, but it is the

second question, Your Honour - could conceivibly

come to the view that an ordinary man could ever so

react. That is the trial judge's ruling. It is

a series of negatives that it is an impossibility.

Back to Your Honour's question: surely it is that -

McHUGH J: Well,if there is no proportionality involved in

subsection (2)then the decision below amounts to
finding that the jury could not be satisfied beyond

reasonable doubt that an ordinary person would not

react, in effect.

MR KABLE: That is right, yes, that is it, and that is why

it is criticized~ That is why I am quarrelling with

it.And I woµld submit it is clear there is no

proportionality involved for three reasons: certainly

the code in Canada has ruled that proportionality has

no place; Western Australia Full Court in SRECKOVIC -

Chief Justice Burt, Mr Justice Brinsden in two cases,

SRECKOVIC and CENSORI, both ruled that there was no

place for proportionality in the code and the words

of the code make it abundantly clear.And,in fact,the

common law now has been decided by this Court, as

Your Honour well knows, in JOHNSON's case,said that

there is no place. S-o navhere	do we find proportionality.
But back to Your Honour's critical question.	The fact

that we debate what the meaning of that word may or

may not had upon an ordinary man is the soundest
argument as to why it is a critical jury question.
In that circumstance what that word would mean to

an ordinary person - if somebody used it here th~ case would go on; we would.not be involved in that

situation. Where at Scottsdale: ·

HIT3/4/CM	25	15/3/90
Stingel

at two o'clock in the morning, a person who has

such a strength of feeling that he has been going

to take his own life, because of his feeling to
this girl, and he has come upon her surprisingly

and then he is called that. And, as I say, it

may be - who knows whether her lack of reciprocity

increases it or decreases it. Who knows whether

if his perception of himself is that that is what

he might be, increases it or decreases it.

McHUGH J:  Now must it be taken into account against you

that an ordinary man in that situation having come

up to the car would know that he was intruding where

he should not have been and therefore if that

remark had been said to him he would not have reacted

because he knew he was doing the wrong thing putting -

MR KABLE:  The answer to that is that the reasonable man would

do that, Your Honour, but the ordinary man may or

may not. The reasonable man certainly would adopt

the approach that Your Honour has just articulated.

The reasonable man would, because he would think

through. The ordinary man, we do not know. That

highlights it and - - -

McHUGH J:  In PACKETT Mr Justice Dixon at page 218 of the

report referred to, and seemed to equateureasonable man"

with "ordinary man".

MR KABLE:  His Honour did. All the authorities at about that

time seemed to take that step. Certainly

Chief Justice Barwick and Mr Justice Gibbs in

MOFFA expressed the opinion that the phrase "ordinary

man" was far preferrable.

GAUDRON J: Well the section predicates that the ordinary man

may, in certain circumstances, lose his power of

reason to the point of losing self-control.

MR KABLE:  This is the point I am obliged to Your Honour, and this is

the point I come back to,that we are all taught at

a very early age that "sticks and stones will break

your bones and names will never hurt you", but the

code had an insult in 1924 that was recognized as

having the capacity to prevoke an act which in fact

caused death, because it was necessarily dealing with

a murder trial. So there is an apparent illogicality

in the enactment, but once we recognize that it is

there,then the submission I make is that real meaning

is to be given to it.

McHUGH J: Well it may be that it has got a limited meaning~

For instance, if,in 1942,you had said to somebody that

he was a Japanese sympathizer, that might have been

an insult; that would make any ordinary person in

the Australian community lose his control.

HIT3/5/CM	26	15/3/90
Stingel

MR KABLE:  Yes. I am right with Your Honour on that, and

that is the reason that I put the submission that

the time becomes important and we are now dealing

with this time in this age and maybe aberrative

conduct - aberrative is the wrong word - but what

is an ordinary man today, when we are using that

phrase? Which of the people who cross Flinders

Street at five o'clock on a Friday night are the

ordinary and what are the extentions of their actions,

when in this situation?

McHUGH J: Well unfortunately for the operation of this

section we now live in a pluralistic society.

MR KABLE:  And my submission would be therefore that the

conduct comprehended by the section increases in

the sense that it becomes ultimately and critically

a jury function, because the jury in the location - - -

DAWSON J: Of course, the difficulty is compounded by the fact

that really, if one is honest with oneself, one

would recognize that the ordinary man just does not
lose his self-control to the extent of killing,

whatever the insult, short of self-defence, so we

are really in cloud-cuckoo land. And when you say

does not lose his self-control to the extent of

killing, you mean really, does not lose his self-control.

MR KABLE:  Your Honour that is the point I was seeking to make

in answer to a question to - - -

DAWSON J: It is not a helpful remark faced with ,the section.

MR KABLE:  No, but it recognizes that- the point I was making was

Your Honour is making it and the reason I put it as

a submission recognizes that we have got to be very

careful putting logic into looking at this, because

what Your Honour says is exactly correct, but there	is the word 11nsult:1 Once we have got insult, it has
got to be given a meaning, how do we limit it? We
limit it by reference to the statute. The statute
gives us no assistance. We therefore.say, "If there
is an insult which can conceivably give rise to a
loss of control, then the phrase that is frequently
used, "the collective good-sense of the jury are
going to make that yardstick ·determination".

TOOHEY J:	Well that is more or less an argument for handing
it over to the jury in all cases1
MR KABLE:	It is, but I am not trying to put that argument

in this Court, because I am recognizing that there

is a limitation. I mean, philosophicly there may

be an argument that it ought ta have been.

HIT3/6/CM	27	15/3/90
Stingel

TOOHEY J:  I can see the force of that, because what puts

a single judge in a better position to say whether conduct is capable of depriving an

ordinary person of the power of self-control than

anyone else?

MR KABLE:  And that is why, when I answered His Honour

the Chief Justice's question earlier, I sought to

distinguish between the judicial role in ascertaining

whether in fact there is evidence of an actual loss

of self-control or some other element of the defence

and this, which is very much comparing it to the

yardstick. That is why I have sought to draw that

distinction. To come back to Your Honour Justice McHugh,

that word was described by His Honour Mr Justice Nettlefold

in argument, in a manner that I accept and adopt, as universally offensive except among friends, and that

is probably an accurate description -

McHUGH J:	Well,I do not know whether it is; is it?
GAUDRON J:	It certainly is not, from my point of view.
MR KABLE:	But what I would say is that there is no doubt

that, given the dialogue between Your Honour and
myself, when used in that circumstance, it was

no term of endearment and surely if it was not there,

if it would go away we would not be here, but it

was there and its effect is what we are considering.

GAUDRON J:  But,Mr Kable, does not your argument really amount

well, your argument that all the characteristics

of the accused must be attributed to the ordinary

man really does amount to a proposition that every

to the question of loss of control or impacting on the loss of control.

case must be left to the jury, does it not?

MR KABLE:	I do not have to go that far.
GAUDRON J: Weli where does it stop in your - - -

MR KABLE: It stops - I am assuming Your Honour's question

accepts, as a matter of fact, that there has in fact

been a loss of control and that there has in fact

been an insult or -

GAUDRON J: Well, if there is evidence.

MR KABLE: Yes, evidence of a loss of control and evidence of

a wrongful act or insult. Then if you have got actual

evidence of a wrongful act or insult and you have got

actual evidence of a loss of control, then it will be

an extraordinarily rare case. I mean, if somebody

said to somebody -just let me think, it is dangerous

to analogize on your feet - I suppose the answer I

HIT3/7/CM	28	15/3/90
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put to Your Honour is that if there is a role for

the trial judge in adjudicating upon what an

ordinary person will do, there will be some insults

that are so demonstrably outside the range, "You

have got a funny little finger".

GAUDRON J: Yes, well let us take something like that. Say

to a person who is particularly sensitive about their

complexion., and you say well "Look at you, with all

your freckles" for example. The person thereupon

loses control, is insulted by it, but if you attribute

to the ordinary person the characteristic of being

particularly sensitive to recognition that the person

has freckles, you really do come to the point where

you say, every case, where there is evidence of
insult and loss of control must go to the jury. That

is you write out of section 160, your subsection (3).

MR KABLE:  Yes. My submission would be that there will be

occasions where the examples are such that that does

not occur.

GAUDRON J: Well,you have denied that it is proportionality?

MR KABLE:  Yes, it cannot be proportionality.

GAUDRON J: It cannot be proportionality. Well,what is it? It

must be in that event something that you do not

attribute to the ordinary person. Some characteristic-

MR KABLE:  It must be a characteristic that a trial judge or an

appellate court can properly say - no jury could ever

fail<to be satisfied that no ordinary person could lose

self-control in those circumstances.

GAUDRON J: Because the ordinary person is said to be something

other than a person who would regard what has happened

as an insult?

MR KABLE:	Or such a minuscule insult that such a result should -
GAUDRON J: Well,that is proportionality.

MR KABLE: Well, not, with respect,Your Honour, the way I

put it. ·rt is not in this sense, that the way

I have used the phrase proportionality bears upon the mode of retaliation rather than the fact of loss of

self-control. What the debate Your Honour and I are

having is as to the legitimacy of the finding of the

potentiality of loss of control, whereas proportionality
refers to the nature and the mode of retaliation once

self-control is lost, and I distinguish it on that basis.

And I would seek help from Chief Justice King and

Chief Justice Greenand the. various authorities, because

what I am submitting to the Court is that what I am

putting is no novel concept.

HIT3/8/CM	29	15/3/90
Stingel

GAUDRON J:	I do not understand why we attribute to the ordinary person any characteristics of the accused
in this case other than that he is a young man,
love-struck and known to the occupants of the car
to be love-struck.  Why do we have to go beyond that,
that, I should have thought, being a characteristic
that is fairly readily attributible to young people
of a particular age?
MR KABLE:	I want to put "intensely" in front of "love-struck"

Your Honour, and that is the critical issue.

GAUDRON J: Well, I do not know, the lesser question does not

seem to have been answered either.

MR KABLE:	I am sorry.
GAUDRON J:	You put "intensely" in, but there are difficulties

about "intensely", becauee the very moment you bring

in "intensely" it brings in an aspect which impacts

upon notions of self-control, so what you are

hypothe.sizing by that: word "instantly", is an

ordinary person more susceptible to lose control than

the ordinary person? If you leave it out, it still

does not seem that anybody has answered the question

whether an ordinary love-struck young teenager,

known to the occupants of the car to be love-struck -

there was no doubt that that was known - could react

by losing self-control?

MR KABLE:  And my answer to that would be that the answer is inevitably,yes.

GAUDRON J: But has :that question been put and answered in this

case?

MR KABLE:  By definition the Court of Criminal Appeal have

answered Your Honour's question, no, because

Mr Justice Underwood has not attributed, as a

characteristic, the depth of feeling or obsession,

so His Honour has the accused "in love" love-struck,

and His Honour's judgment discloses that His Honour

is of the view that such a person could not so react,

but my quarrel with His Honour is that His Honour
really has said "would not" not "could not", so the

answer is the question has been answered, but it has

been answered "would not", not as I submit it ought to

have been answered,"could not". One of the matters I

was going - it is very difficult, I am conscious of

time and things like that. but we are dealing with an

everyday occurrence. I looked in literature to see

if I could find some observations that might be of

helf to the Court, and not having had significant

training in that area, but a book came to my attention

over the Christmas period, and I have in fact extracted

HIT3/9/CM	30	15/3/90
Stingel

some quotations which have been made available to

the Court, because they are quotations from authors, - there are two pages of them -and they say things much

better than I can about logic and emotion.	And we
are dealing with emotion.	And they come from a book

by Dr Brian Roet, who was perhaps better known for

his football prowess in early days, but he collects

together some quotes from Lawrence, George Bernard

Shaw, Chesterton and his own and I would not seek

to - I mean I was lucky to find them in the sense that

they were all in the one place - but they distinguish

between logic and emotion and this case is about emotion.

And I would adopt, if the Court were to find those

observations to be of any help, those observations.

Now,I am conscious that I have been answering questions,Your Honour the Chief Justice,and have not

still been speaking as to special leave, but I have

soughtto answer the questions as - - -

MASON CJ: Quite obviously we have taken you into the main

thrust of your argument and that is largely to

identify what you wanted to put in support of the

appeal and to assess, as it were, the consequences

and nuances of those submissions. But what else do

you want to say in support of the application for

special leave?

MR KABLE:	Your Honour, before I commenced answering the last series of questions I had taken Your Honour through
a series of facts and we arrived at the car, when
the utterance had been made and there was continuing
activity.  The next point I was going to make as to
the facts were that the jury could have found the
response to have been provoked jealousy or provoked
anger or out of love, care or protection. As to the
facts, there are two other observations I wish to
make:  the Crown made much of the restraining order,
which is a domestic restraint order that the Court
would have read about and the fact that this accused
had no legal right to be where he was. There are
two answers to that. Firstly, earlier in the evening
he had, when not provoked, directed his attention
to that inhibition on his conduct, and secondly, the Parliament of this State, if it wished to disentitle
people who were subject to those orders, could easily
have enacted a section which said that if somebody
is the subject of such an order then the defence of
provo~ation will not apply, so, in my respectful
submission that is not a factor which is going to be
determinative in this matter.

As to the question of special leave,

I have indicated what I submit are the legal difficulties

in this State.

HIT3/10/CM	31	MR KABLE	15/3/90.
Stingel

MASON CJ:  And we have the benefit of your outline of

submissions.

MR KABLE:  There are three other matters that I would wish

to raise with the Court briefly. Firstly, that

we are dealing -

MASON CJ:	You do not need to put the whole of your case - - -
MR KABLE:	No, I understood that Your Honour did not want me

to put the whole of the case. Your Honour was only

asking me if there was anything else I wish to say

as to special leave. And Your Honours have page l,

which sets out the matters,I submit,are relevant.

The only final matter that I would wish to lead the

,	question of special leave on, is this Your Honours,
that Your Honours are obviously familiar with the
state of the law in this State. It is my submission
that the facts as expounded do raise the questions.
The law of provocation centres on the mind of the actor,
not on the worth of the victim and secondly, the
fact that the defence is excusatory in nature, and
not justificatory, leads to the view that for the law
to develop as I submit it ought, does not lead to what
I would call a floodgates argument, and I submit
that has been documented in the various other cases.
As to special leave, I do not refer Your Honours to
anything else. The cases that disclose that the law
here is not in accord with the other code States and the colIIlilon law States are set out and Your Honours
have had the chance of reading the submissions I make as to the substance of the appeal and as Your Honours
asked me to deal only with special leave, I do not
make further submissions as to that.

MASON CJ: Very well. The Court will take a short adjournment

at this stage to consider the course it will take

in this matter.

AT 11.47 AM SHORT ADJOURNMENT

UPON RESUMING AT 11.51 AM:

MASON CJ: Yes, Mr Bugg.

MR BUGG:  Thank you, Your Honour.

MASON CJ: What we want to hear you on at this stage is the

question of special leave.	Why should not special
leave be granted?

HIT3/ll/CM	32	KABLE	15/3/90
Stingel

MR BUGG:	Thank you. Your Honour, I suppose ~-primarily,
I would submit that the decisions of this Court
in LIBERATO and MORRIS's cases give a fair
indication of the strict guidelines which the
court applies in considering applications for special
leave without embarking upon the specific relevance of those guidelines to this particular case.

(Continued on page 34)

HIT3/12/CM	33	15/3/90
Stingel

MR BUGG (continuing): It would be my submission, firstly,

that there is no confusion to be gleaned from all
the judgments of the individual judges of the

Supreme Court of this State - and I say that not

at all smugly because the exercise will take some

little time for me to develop; secondly, that

this Court has never held - that is, the Supreme

Court of this State has never held that

proportionality is a separate threshold test but

that it does have relevance in an evidentiary

sense in considering the primary question which

must be answered by a judge before he leaves the

issue of provocation to the jury.

In so far as the question of any wrongful

act is concerned, my learned friend did canvass

that in his affidavit in support of the application

for special leave. He seems, this morning, to

some extent anyway, to have abandoned that and I would submit that the force of that argument and

the weight of the submission would indicate that

that by itself would not be a sufficient basis

for this Court to grant special leave.

If I could just deal, I believe, Your Honour,

fairly simply with the question of proportionality.

My learned friend says that the submissions that

were advanced this morning do not differ in any

sense to the submissions which were advanced to

first of all the trial judge and, secondly, to the

Court of Criminal Appeal. I would invite

Your Honours to examine page 517 of volume II of

the appeal book and you will see that my learned

friend in fact asked His Honour to apply

proportionality in satisfying himself as to that

primary test. Line 4 on page 517:

As I said -

this is my learned friend making submissions to His Honour the trial judge as to whether or not

provocation should be left, of course his submission	As I said to Your Honour earlier, the question is could a jury be satisfied beyond reasonable
doubt, can Your Honour state unequivocally
that a jury can be satisfied beyond reasonable
doubt that no provocation exists which could
have caused an ordinary man to react as the
accused did.

being that it should.

In my submission, His Honour was quite correct in

saying that proportionality does apply - His

Honour the trial judge - and, of course, other

HlT4/l/DR	34	15/3/90
Stingel

judges of the supreme court in various judgments

to which I could refer Your Honours have said on a

number of occasions that proportionality is a

factor to be taken into account. It is not a

of the response and that.is to react as the accused

separate threshold test but there my learned friend,
in his submissions to the trial judge - the

decision of whom he complains of now - invited

did. As Your Honour Justice Gaudron quite correctly

put, there you have proportionality, when my learned

friend was asked that series of questions by you.

GAUDRON J:	Yes, that is not what the section says.
MR BUGG:	No, it is not, Your Honour, and I could, by taking
you through the authorities which I referred to
in the outline of submissions, highlight the basis upon which this Court has said there is room for
taking into account the proportionality of the
response and that comes from the word "sufficient".
Of course that has had wide acceptance in this
Court.  The word "sufficient" connotes, in my
submission, was that provocative act or stimuli
sufficient to deprive the ordinary person of the
power of self-control and react as the accused did?
McHUGH J:	I do not see how you get that out of "sufficient".

I can imagine many situations where an ordinary

person might lose his self-control to the extent

that he becomes angry and wild and yet still

retains sufficient control not to murder somebody -

or not to kill somebody.

MR BUGG: Well, it does not become a relevant consideration then,

does it, Your Honour, because - - -

McHUGH J: No, but that is the question, you see. Does that then

simply pose the question whether an ordinary

person must be deprived of his self-control

generally or does it pose the test that the

ordinary person must be deprived of his power of	self-control to the extent that the accused was?
arguably reflected in the response to the provocation. That is fundamentally the submission I make: that
we are not talking about a loss of control, we are
talking about a deprivation or loss of power. It
is the loss of power of self-control. People lose
control in certain circumstances. The casual and
perhaps colloquial connnent, "He's out of control",
but he is out of control because he may have thrown
away or shed his inhibitions at a particular
moment but when someone blows the whistle he stops
and he is back in control.

MR BUGG: Well, the loss of power of self-control would be

HlT4/2/DR	35	15/3/90
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DAWSON J:  But that is not quite the question. The question - - -

MR BUGG:  No, I know.

DAWSON J: Really, what is being put to you is that loss of

self-control is a matter of degree, it is not an

absolute thing and a person may lose to some

extent his self-control but certainly not go to the

length of killing someone. Well, now, if a person
has not lost totally his self-control he has not

perhaps, in the sense of the section, lost his

self-control.

MR BUGG: That is right, because the section deals with the

loss of power of self-control, that is, a

deprivation of the power of self-control. You have

no power of self-control. A qualified loss, that

is, as Your Honour predicates - well, let us put it,

banging the fist on the table or shouting obsenities

when that person may not do so under normal

circumstances, that is a partial loss of control

but it is not a loss of the power of self-control.

It is only a partial loss.

DAWSON J: Well, then, it must mean that the ordinary man

would have lost control to the extent of killing.

MR BUGG:	That is right. So, then you adopt a consideration
when you are examining all these issues: what was
the response? If the response was a fatal blow or a series of fatal blows - or a series of blows
which had a fatal consequence - then, of course,
you are taking that into account and assessing
just how far that person has lost - - -
DAWSON J:	The ordinary man just does not, by reason of insults,

lose his power of self-control to the extent of

killing.	We know that the majority of people just
do not.

McHUGH J: And on your view of that limb, he would have to

lose his power of self-control completely in every

aspect, not just about killing or losing his temper

but he would just have to - - -

MR BUGG:	Yes, well, the old classic definition~ the blood
boils and whilst it is still on the boil, not on the simmer, you have the reaction on the sudden so
that you - a blind rage where the consequences,
the reaction of the person, is just totally out of
control. There is no consideration of witnesses
who may see what has occurred. Actually you have the classic situation of the man who returned and
stabbed his assailant in a bar in front of a crowded
room - albeit a crowded room of drunks but some of
them were able to give evidence when the matter came
to trial. That was a factor that was taken into account in determining just how much his blood was
boiling at the time, if the consequences, the controls

HlT4/3/DR	36	15/3/90
Stingel

had all gone and that really is what the section

examines, in my submission. But the authorities

are referred to and I can take Your Honours to

them if you wish but the passages are referred to,

the pages are numbered, in the outline of submissions
but that, as I say, I thought it would be the
simpler of the two matters I perceived I would have

to meet in so far as the special leave point was

concerned and I therefore took Your Honours to that

passage of my learned friend's submissions to

His Honour the trial judge. He took those up and

said proportionality applies. This response is

so out of proportion with the insult which I found

was offered or given to the accused that it is a

factor I can take into account.

Your Honours, the other matter, of course, is

the question of whether or not there has been an
inconsistency of approach from the bench of our

supreme court to the application of an ordinary

person test and an.interpretation of what an

ordinary person means for the purposes of section 160.

I have, in general terms, referred to the cases.

It will take me some time to outline that argument

but it would be my submission at the· conclusion

of that that all the judges of the Supreme Court of

this State, all seven, have adopted the exterior

circumstances, shorthand description.

McHUGH J:  But does that not raise a special leave point

in itself as to whether that is the correct approach?

MR BUGG: Well, Your Honour, in my submission, I suppose what

must follow from that is: has the code been

correctly interpreted by the judges of the Supreme

Court of this State. We are faced with a code

situation, not as Your Honour's former jurisdiction

had with the CRIMES ACT, section 23 which, of course,

was clearly pointed out it did not amount to a total

c·ode and therefore there was room to incorporate

common law principles. Our submission, which you

see from the written outline, is that the code

stands by itself. It does not require assistance

from the common law in 1989, or for that matter

since CAMPLIN's case, to shed any light on the

meaning of the words contained in section 160.

That meaning is plain. It has been plain

since His Honour Mr Justice Dixon, in PACKETT's case,

layed down the oft-quoted phrase - to use my

learned friend's terms from his affiuavit in support -

which, in my submission, has been considered,

applied, followed and in no way overruled, certainly

as far as the High Court is concerned and certainly

its consistency in application in this State is

beyond question. My learned friend has highlighted

the decision of the present Chief Justice in

HlT4/4/DR	37	15/3/90
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BEDELPH's case but, of course, His Honour has since

then indicated that what he said in BEDELPH should

be taken only as obiter. From the cases I have

referred the Court to, in my submission, he can be

taken to have adopted a surrounding circumstances

test to determine what the reaction of the ordinary
person would be to satisfy that first threshold
objective test that of course the trial judge must

consider.

Before I embark upon that, Your Honours,

perhaps if I could examine just some of the other

factual material because, in my submission, some of

the matters that my learned friend put to you,

albeit on the run because the question came to him

out of sequence, were not factually correct to some

minor extent. That is that the accused had not

opened the door of the car and had the words uttered

to him before he saw the object of his affection in

the car and I take that from the unsworn statement

which must be the high-water mark, in my submission,

of the view of the facts most favourable to the

accused. That unsworn statement which was read out

to the jury by my learned friend sets out the

accused's no doubt considered version of the facts

and account of what occurred,but in that account

he says that he saw Taylor in the car; approached

the car and then saw Miss Goss in the car; he then

opened the door, having previously said that he

could see that some sexual activity was going on

in the car.

McHUGH J:  I do not think he did, did he? At page 569, he

said:

Just before I opened his door I saw Tania.

. MR BUGG:  Half-way down the page, yes:

Just before I opened the door I saw Tania.

I could see her head across his lap.	I
noticed he had not trousers on.	I then
opened the door.

McHUGH J: And then he says:

I saw her giving him a head job.

He sees the sexual activity after the door is opened.

MR BUGG:	Right. Now, my learned friend put that he did not
see the girl, Goss, in the car until he had opened
the door. That was of some significance both in relation to the submissions made to His Honour the
trial judge by the Crown and to His Honour the
trial judge in the conclusions he reached because you cannot, in those circumstances, overlook the

HlT4/5/DR	38	15/3/90
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comment which he made, on page 4 of his unsworn

statement, line 3, which is page 568 of the

appeal book. When speaking earlier in the evening

of this, in my submission, which must, on any

account of the facts, have been a provocative
incident as far as he was concerned and that is to

see this public fight or argument between Taylor

and his girlfriend:

I was a bit frightened about what would

happen about the restraining order.

Which is his explanation for not intervening whilst this public fight was going on. That restraining

order - there had been evidence about it before His Honour the trial judge, I believe it is at

page 19 of the appeal book - was to the effect that

he could not approach within a certain distance of

Miss Goss. The restraining order had been imposed

in September 1987. It had been breached and he had

spent three days in custody and been sentenced to

a suspended term of imprisonment for 14 days for a

breach of that restraining order involving an

attack upon a vehicle being driven by Miss Goss'

father when he was driving Miss Goss and her then

boyfriend home at Christmas time.

So, the evidence of the restraining order was

significant to this extent, that here he was

approaching the car an~ on the version put that he

does not see her until he opens the door and the

words are uttere~ there can be seen to be a quite a

coloured difference too. If he sees her in the car

before he opens the door - and I am sorry to be

spending so much time on the facts on a special

leave question, but it is significant because it is

part of the matters which His Honour had to take

into account in considering what the reaction of an

ordinary person would be in those circumstances,

that is, the ordinary person approaching the car;

seeing Miss Goss in it; knowing he cannot approach

within 250 metres radius of her presence and he still

goes ahead and opens the car door - an act that he
had no lawful or social authority to undertake which

was a submission made to the learned trial judge -

and he then has uttered to him those words.

Of course, we submitted before the trial judge that the words were not insulting and I take up the

point made by you, Justice McHugh, about that because

when His Honour Mr Justice Nettlefold put the

proposition in the Court of Criminal Appeal that

the words apart from "close friends" would be

universally offensive or insulting. I responded,

of that response.

"Perhaps not with teenagers who play football in

HlT4/6/DR	39	15/3/90
Stingel

Of course that is precisely what the Court

was considering here: the conduct of teenagers who
play football in Scottsdale and, in fact, that is,

of course, a relevant matter for His Honour to take

into account. Now, there are other aspects of the

facts which I could canvas& There were undisputed

incidents of violence from the accused directed at

boyfriends - if I could use that term - of the young

lady after their romance had broken down. We are

talking about a romance which survived six months

whilst Miss Goss was in her last year of high school.

It started in May 1986; terminated in November 1986;

they got back together for about a fortnight around

Christmas time 1986; they then went their separate

ways. Thereafter Miss Goss had difficulty with the

excessive attention she received from the accused
to such an extent that when a violent incident
occurred, that is, when he had thrown a glass at
she and her then boyfriend at a social function

for which medical treatment was required and whilst

seeking that medical treatment he pursued them or

followed them around the town in his car.

A restraining order was obtained. That

restraining order was breached and at the time of
this fatal stabbing, we are talking about a

the basis that the accused's affections were not wanted and she did not want them visited upon her;

separation from a six month romance of 18 months. on

she did not want him following her around and she

obtained an appropriate court order. Now,

His Honour Mr Justice Underwood, in his judgment,

part of which, as I understand the submissions

of my learned friend this morning, is criticized

and particularly that part which appears on page 603

of the appeal book. In applying and by coming

to this "external circumstances", if you say that
the ordinary person must be situated as the accused

was and place the ordinary person in the same

circumstances as the accused, give the ordinary

person some colour that you can absorb from the

accused~then the logic and the persuasive force of

what His Honour says there is the final knot in
the string of the interpretation that has been

given to this section by our supreme court.

Because what His Honour Mr Justice Cosgrove

said, and to some extent has been criticized for

here this morning, about external circumstances has a very persuasive logic about it because if

you want to put the ordinary person in the same

place as the accused, if you want to consider what

the ordinary person's reactions would be, how do

you colour that ordinary person. Well, you say,

could an ordinary person who had, at the age of 17,

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accompanied a young lady of 15 years of age for

six months - there had been no close sexual

contact - had then been separated from her for

18 months and had been forcefully separated by the

law and knew what his position was and, in fact, had

observed the restraints of that order from January 1988

until June 1988 when he delivered this fatal blow, be

attributed with not the - as my learned friend put

it today - depth of love but depth of feeling that

he claimed at trial? In other words, what attributes

would you give the ordinary person that experience?

Now, take the ordinary person and put him for 15 years tending daily at the bedside of his wife,

who maybe has a lingering illness which has kept

her confined to bed for that period of time, and

consider the extent of the devotion and attention

that that person gives to his wife, then consider

the affect of a gibe which went to that particular

relationship or that particular illness or

infirmative that his wife had. You say, "Put an

ordinary person in that where day after day for 15 years he has been attending devotedly to his wife, how would the ordinary person respond if there

was a cheap, nasty, vindictive gibe about his

wife?" Then, you say, "Well, we now know what the

ordinary person is. He has got the ordinary

person's power of self-control, but what depth of

feeling can you attribute to the ordinary person

if you put him in that situation.

So, when His Honour Mr Justice Underwood says,

at page 603, that:

the objective nature of the threshold test

would disappear 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.

He says, in.that environment the ordinary person - the ordinary man - would not have possessed that claimed depth of feeling which was the foundation for this justification - I should say, excuse -

sought by the accused for the delivery of this

fatal wound on the night in question. Now, it is

that consideration of the exterior circumstances.

Take ENRIGHT's case - it is referred to in both sets

of authorities - there you have the person who had -

and I adopt Justice Gaudron's consideration of

the freckled face self-consciousness. This person

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had a self-consciousness about the word "bastard11

because he had a strong·belief that he was

illegitimate but there the court would not permit

that characteristic being attributed to the ordinary

person for the purposes of considering the responses

of an ordinary person to that provocative assertion,

"you bastard".

Now, here, the offensive words used - the

insulting words used - and the Crown has never

accepted that they were of that category which

could be classified as insulting - were not directed

at any characteristic - by that I do not mean

intentionally directed, but they could not be seen

to apply to any characteristic of the accused:

"Piss off you cunt, piss off" -

'

when he has opened the door of a car that he has

no title or interest in that is parked in the car park of a sports or recreation ground, at three in the morning when the last person, on any

account of the evidence, to have left that social

function at that recreation ground had left at

approximately 1 am.

McHUGH J: But, I know the argument for the applicant seemed

to confine the insult to the words, but why is not
the course of conduct capable of being an insult?

Take a case like PARKER, where the wife goes off on the bike with her lover and the husband sees

them. Would a case like PARKER fall within
section 160, no wrongful act? Surely the insult

there is the fact that the deceased took the wife

away from the husband and flaunted the fact that

he was taking her away. That was an insult to him.

MR BUGG:	Yes, and that has been recognized throughout the
ages that the matrimonial bond and the cause of
insult that may flow from a deliberate infraction
of that bond by either party and the persons perceived to be responsible for that, as being a
qualifies - or in most cases, immediately qualifies -
classic condition precedent which immediately
the accused person to the shelter of this particular provision. There you have some foundation for it but, of course, to come to VAN DEN HOEK, I would not
concede that my learned friend's submissions in relation to VAN DEN HOEK as being authority to the
proposition that the range of conduct is expanding all the time. What Your Honour the Chief Justice
in VAN DEN HOEK was considering was the question of
whether or not fear could be incorporated within
the defence of provocation as an emotion giving rise to a loss of self-control and, of course, that
is precisely what you did.

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But a number of the judges of the High Court

and of t,his Supreme Court said that as society

becomes more sophisticated, as society develops,

the tolerance to certain indiscreet social conduct,

howev~r you wish to describe i 4 should be

regarded as being greater than it was even at the
time the Code was enacted. But, yes, I do not

not be a problem, in my submission, and the

have any difficulty with PARKER's case, Your Honour. would

words have obviously got to be looked at in the

circumstances in which they were uttered. I do not

shrink from that at all, but the circumstances in

which they were uttered were of no surprise to the

accused because he said, in his unsworn statement,

that he knew that the deceased was "one-night

standing", this former girlfriend of his, and that

was one of the matters that annoyed him.

After fo0tbalI ana social. functions

at the recreation hall, he would then go off with
her in his car wherever and use her, sexually.

So that it was not as if what he came across was any shock to him as, of course, in PARKER's case, the sudden realization that the.wife was heading

off and some offensive gesticulation or whatever

from the paramour gives rise to a loss of self-control.

That is not the situation here at all and by suggesting, as I do, as to the applicability of

the external circumstances test of His Honour

Mr Justice Cosgrove, I would not be in any way

shutting the door to that proposition.

You see, the starting point of a consideration of one of the special leave issues and that is,

does the argument or submission of the applicant

show that there is an inconsistency of approach in

this 8upreme Court, must go, not to the authorities

to which my learned friend has adverted in his
outline of submissions, but to ASKELAND's case.

In ASKELAND's case, which is referred to in the

Your Honours wish me to go through the passages outline of submissions - I do not know whether from these cases - - -

MASON CJ: There is no occasion to do that, Mr Bugg.

MR BUGG:	Thank you, Your Honour. I would submit that you
can trace, from ASKELAND's case, where the trial judge was His Honour Mr Justice Cosgrove, and one of the appeal points to the Court of Criminal Appeal
in this State was the adequacy of the direction of
His Honour Mr Justice Cosgrove and in his direction
in ASKELAND's case he adopted the external
circumstances test that he.natl adverted to in JEFFREY' s
case. His Honour Mr.Justice Neasey was the

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President of the Court of Criminal Appeal. He

delivered the only judgment of that court and his

reasons were agreed with by both His Honour

Mr Justice Nettlefold and His Honour Mr Justice Everett

and you will see from the outline of submissions from

my learned friend that Mr Justice Everett was a

consenting - he assented to the general propositions

that were outlined by the Chief Justice and

the former Mr Justice Crawford in BEDELPH' s case but he

TS	agreed completely with His Honour Mr Justice Neasey
when he connnented that His Honour Mr Justice Cosgrove's
exposition of the ordinary person test, in his direction to the jury in ASKELAND's case was the
law in Tasmania.and, of course, His Honour
Mr Justice Nettlefold agreed with that as well.
So, at that point, you have four judges of the supreme court adopting the Cosgrove test - I
am using shorthand to assist in just explaining the thread that one must follow from the supreme
court decisions of this State. There is
absolutely no doubt from the judgment of the
Court of Criminal Appeal in this case that both
His Honour Mr Justice Underwood and His Honour
Mr Justice Wright adopt the external circumstances
as, of course, did the learned trial judge.
The only other judge of the supreme court then who has not considered the matter in that category is the Chief Justice and I suppose you
could also add His Honour Mr Justice Cox. But
in the judgments to which I have referred this Court, you will find, first of all, that
His Honour Mr Justice Cox applies a test that can
be said to be the external circumstances test.
His Honour the Chief Justice, in HUTTON's case,
in considering what the circumstances were that
the ordinary person would be placed in for considering the effect of the provocative connnent, or 'sniggering laugh!' in HUTTON's case, His Honour
outlined a set of circumstances which were all external.

In JEFFREY's case there was no prior

history - this is the reference my learned friend

has made to the judgment of His Honour

Mr Justice Nettlefold - there were no external

circumstances that needed to be considered as far

as any prior relationship between the accused and
the deceased was concerned because there all you

had was the consequences of a bar room disagreement.

When I say, "all you had" I do not belittle the

fact that there was a fatality out of it but there

was no long-standing emotional relationship between

the two drinkers in a public bar so that there was

not any need to cloth the ordinary person in that

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particular case with any significant individual

characteristics of the accused person relevant to

his relationship with the deceased man. So, in

my submission, it is seen from the analysis which

is contained in the outline that there is no

confusion in our supreme court that the test which

has been propounded and applied since PACKETT's

case has ample authority, or ample support, from

this Court in JOHNSON's case. And I would submit

that once CAMPLIN arrived upon the scene the relevance

of what might loosely be called "common law authority"

from England ceased to apply, certainly to

Tasmania, because of the peculiar provisions of the

legislation that was under consideration in

CAMPLIN's case.

Your Honours, I could go into further detail

about those aspects of the matter but, in my

submission, this is not a case which is deserving

of special leave. It does not raise any question

of law where there has been, in my submission,

either an error in law in the trial process or the

appeal process and there has not been demonstrated

any reason on a broader base for this Court's

intervention to either redefine or clarify any

aspect of the interpretation that this Supreme Court

has given to section 160 of our CRIMINAL CODE.

MASON CJ: Yes, thank you, Mr Bugg. Yes, Mr Kahle.

MR KABLE:  Your Honour. Two matters by way of reply. I

would respectfully submit that the law in Victoria

has significantly changed since ENRIGHT's case and

that can be gleaned from SHEA, DINGER and,

lastly, O'NEILL, and I do not pause to go through

them in detail but that that denotes that ENRIGHT's

case is no longer authoritative as to the matters

raised by my_ friend. Secondly, I draw issue with

my friend when he says there is a consistency of

approach in this Court. The record discloses,

for example in SMITH's case in 1984, that in the

first trial there was a hung jury; provocation was

left; in the second trial it was not left and the

Court of Criminal Appeal upheld the ruling that it should not be left.

An analysis of the decisions of the Court of

Criminal Appeal disclose three threads of argument.

Their Honours', Mr Justice Neasey and Mr Justice Cosgrove,

adherence to the exterior circumstances thread of

argument; Mr Justice Nettlefold to the original

United Kingdom position and, in fact, His Honour

Mr Justice Crawford, the trial judge in this case,

said during argument, "And, yes, Mr Kahle, I might

have another, as it were, school of thought to add".

BEDELPH's case has never been overruled by the

HlT5/2/DR	45	15/3/90
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Chief Justice; His Honour has never resiled from

his judgment in that; it is not dependent upon the
statutory provision; Mr Justice Everett concurred

in it; Mr Justice Crawford concurred in it and the

start of the exterior circumstances school of thought

was Mr Justice Cosgrove's comment as appears in

JEFFREY's where he said of Their Honours in BEDELPH

that Their Honours made some incautious remarks as
to the effects of CAMPLIN. There was the genesis

of exterior circumstances. It grew from there to

SMITH which was Their Honour Mr Justice Cosgrove and

Their Honour Mr Justice Neasey. It was adhered to

in the present case by Mr Justice Underwood with

whom Mr Justice Wright concurred.

In my respectful submission, a distillation of

principle from the judgments in this Court disclose

that they go in three different directions as I

have articulated.

MASON CJ: Yes, thank you, Mr Kable. Now, Mr Kable, the Court

is minded to grant special leave but the questions

to be agitated on the appeal are of such importance

which, obviously, we are not in a position to do

that the Court is minded to sit a Full Bench - the

now.

MR KABLE:	Yes, if it please Your Honours.
MASON CJ:	Do you have anything you want to urge upon us not

to follow that course? I am not suggesting that

you should ask us not to grant special leave.

MR KABLE:  Your Honour, there is a standing joke in this

State that my telephone has an STD bar to TAA on

it and I am pleased to travel to argue it.

MASON CJ: Very well. Well, the Court will grant special

leave to appeal in this case and, as I have

indicated, it will not proceed further with the
argument in it today.

MR KABLE: If it please Your Honours. If it please the Court.

AT 12.30 PM THE MATTER WAS ADJOURNED SINE DIE

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