Stingel v The Queen

This matter came before the High Court of Australia on an application for special leave to appeal by Michael James Stingel against the Queen. The applicant's counsel argued that there was a critical lack of consistency in the application of the law of provocation within Tasmania and when compared to other Australian states. This inconsistency, it was submitted, led to ongoing injustice and necessitated clarification by the High Court.

The central legal issues before the Court concerned the state of the law of provocation in Tasmania. Specifically, the applicant contended that the authorities in Tasmania were in disarray regarding the principles of provocation, particularly concerning the objective element of the test. This included uncertainty as to which characteristics of an accused should be attributed to the "ordinary man" when a jury considers this aspect of provocation. Furthermore, the applicant sought to clarify the relationship between the common law of provocation and the statutory provisions of section 160 of the *Criminal Code Act* of Tasmania, noting a divergence from the approach taken in Western Australia and Queensland.

The applicant's argument highlighted that Tasmanian decisions appeared to render the common law of provocation irrelevant, contrasting with the approach in Western Australia and Queensland where the common law is considered relevant for determining which characteristics of the accused are attributed to the ordinary person. The applicant drew attention to the fact that the Tasmanian and Canadian Criminal Codes are both "Stephen codes" and are materially identical, suggesting that Canadian authorities, such as the Supreme Court of Canada's decision in *Hill*, could provide guidance on the relevant principles for attributing characteristics to the ordinary man, with the exception of unusual excitability, pugnacity, and ease of loss of control.