5.0 Objective Ordinary Person Test

Would an ordinary person in D’s position be provoked into losing self-control to such an extent?

5.1 Reasonable or Ordinary Person - An ordinary person in the position of the accused.

The jury must consider whether the facts of D’s position were such that a hypothetical ordinary person placed in the same position might have been similarly provoked into losing their self-control to such an extent as to kill the deceased - s23(2)(b)

5.2 Characteristics of Ordinary Person

Characteristics attributed to the hypothetical ordinary person - DPP v Camplin (1978)

“Ordinary man referred to… a person knowing the power of self control to be expected of an ordinary person of the sex and age of the accused, but in other respects sharing such of the accused’s characteristics as they think would affect the gravity of the provocation to him.”

The Facts: A 15-year-old boy kills a middle aged Pakistani man. Accused states the victim abused him and laughed at his shame. He claims he was provoked to hit him over the head with a pan.
The Decision: A plural set of objective standards for race, age, gender, etc, is applied to the question of whether a typical person in the position of the accused would have lost control.

Characteristics of an ordinary person - “A person possessing all characteristics and idiosyncrasies of the accused; age, sex, race, colour, physical defects etc., that would have affected his conduct in the circumstances the accused found himself.”  Dutton (1979)

- The provocative conduct must have been capable provoking an ordinary person not merely to some retaliation but to retaliation to the degree and method of continuation of violence, which produces death. Stingel v R (1990).

The facts: The 19yr old accused was convicted of murder by stabbing a man who was in a relationship with a woman he liked. His basis for provocation was that the deceased had used insulting words.

Issue: What is the relevant standard to be applied to assessment of provocation?
The decision: The objective standard is “a person with powers of self control within the range or limits of what is “ordinary” for the person of the relevant age.

- The ordinary test embodies the “ordinary or common range of temperaments” and thereby delineating the boundaries of what the law considers a reasonable reaction to provocation.

- Thus: would a 19yr old person generally have lost control to the extent that he would form an intention to kill or do so? The wrongful act or insult must have been capable of provoking an ordinary person to retaliation to the degree and method and continence of violence, which produces the death.

Masciantonio (1994) - The attributes or characteristics of the accused are relevant in assessing the gravity of the conduct is said to constitute the provocation.

The Facts: Son-in-law is married to accused daughter: their marriage is unhappy, with the son-in-law abusing his daughter. Attempts by the accused are to solve the issue but are rejected. Accused attempts for talks again but is refused, a scuffle breaks out and the accused stabs the son-in-law. Accused had head injuries which causes disassociate state when under stress.

The decision: The Majority stated, “the question is whether the provocation, measured in gravity by reference to the personal situation of the accused, could have caused an ordinary person to form an intention to kill or do GBH and to act upon that intention, as the accused did, so as to give effect to it”.

Green (1997) - It was held in this case that regard should be given to the defendant’s family history in establishing the ordinary person test.

The facts: D & V were friends out drinking. D stayed out at V’s place. D beat and stabbed V while in bed. (He claimed V came on to him in bed).
The Decision: 3:2 Majority concluded that the trial judge had erred in not allowing evidence of the history of violence and sexual abuse in the accused’s family, as this was relevant to the question of the gravity of the provocative conduct.

Gravity of Provocation

It must be established that an ordinary person in the position of the defendant could or might have been provoked into losing self-control and forming an intention to kill or inflict grievous bodily harm - Masciantonio v R; Green v R; Stingel v R

The objective test is two tiered

1) What is the gravity of the provocation faced by the Accused (Factors include age, sex, race, ethnicity, physical features, personal relationships and personal history)

2) Could/would provocation of that degree or gravity cause an ordinary person to lose self control and form an intention to kill or cause grievous bodily harm? (Factor is only Age)

Assessing Gravity

The gravity of the provocation must be assessed from the viewpoint of the defendant Masciantonio v R;  Green v R.

In assessing the gravity all of the defendants characteristics that are relevant to the
gravity of the provocation may be taken into account. Ie ethnic background etc. Masciantonio v R Immature age Stingel v R. Given these factors the gravity of provocation is high.

Dincer [1983] - Permanent characteristics of the accused should be taken into consideration for the ordinary man test.

The facts: A girl in a sexual relationship with an older man. Her Turkish father confronted and stabbed the girl out of religious reasons.
The decision: It was held that permanent characteristics, which distinguished the defendant from the ordinary man, might be taken into account in determining the ordinary person test.

5.3 Provocation would or might cause an ordinary person to react as D reacts.

1. Would the typical ordinary person lose self-control in response to the victims conduct?

- DPP v Camplin, Green, Stingel v R (Previously discussed)

2. Would the typical ordinary man have been provoked to the extent of the accused such as to form illegal intent as to death or GBH?

- Masciantonio,

5.4 Conduct must be capable of provocation retaliation of a relevant degree.

The provocative conduct must have been capable provoking an ordinary person not merely to some retaliation but to retaliation to the degree and method of continuation of violence, which produces death. Stingel v R (1990).

Facts: Previously stated in Characteristics of ordinary person.

5.5 Intoxication

Intoxication cannot be attributed to the ordinary man. s428F prohibits imputing intoxication to the hypothetical reasonable (or ordinary) person when applying a reasonable (ordinary) person test.

5.6 Actual Loss of Self Control

Masciantonio - it must be such that it is capable of causing an ordinary person to lose self-control, and did actually cause the accused to lose self-control and act in the way in which the accused acted while he was deprived of self-control.

Also, The court held that it was not the question to ask whether an ordinary person would have regained control. The question was whether they would have lost self control in the first place.

(Facts: As discussed previously)
OR
Arguably defendant lost self-control and stabbed plaintiff whilst deprived of self-control. We are told that by gritting his teeth in fury as he reached for his knife following which he stabbed plaintiff repeatedly. This frenzied nature of attack Is consistent with a loss of self-control Masciantonio v R.

Stingel v R - “any wrongful act or insult of such a nature as to be sufficient to deprive an ordinary person of the power of self-control and which in fact deprives the offender of the power of self-control is provocation”. (Facts: As discussed previously)

However, it was held in, Osland - It was held that there was no loss of self control, as the victims death was obviously planned

The facts: Wife and son of V plan his murder. They dug the grave on the day they planned to carry out the murder. The son struck his father on the head with an iron pipe and killed him. He buried him in the grave. The wife was charged with murder, the son was acquitted.
 
Act of Retaliation need not be proportional to provocation - Johnson v R (1976)

The Facts: The Accused and his brother were convicted of the murder of their father as a result of a fight and they plead provocation. The Trail Judge stated the accused bore the onus of establishing that the act of retaliation was commensurate with the provocation offered.

Held: There is no separate requirement either at common law or under the Crimes Act (NSW) that the retaliation be proportionate to the provocation.

Battered Wives

There is no requirement that the killing immediately follow the provocative act or conduct of the deceased. The loss of self-control can develop after a lengthy period of abuse and without the necessity for a specific triggering incident, as seen in R v Chhay.

The Facts: Accused was convicted of the murder of her husband after a long history of domestic violence. She chopped him up with a meat cleaver, whilst he was asleep.

6. 0 Self defence and provocation defence can be used concurrently - Perks (1986)

Procedural Aspects s23(4)

a)      Judge

Judge must direct the jury, iner alia, that the accused bore the onus of establishing all the elements necessary to constitute provocation - Johnson v R

- Webb (1977)
- Van den Hoek (1986)

b)      Jury

If evidence of provocation emerges from the evidence, it must be put to the jury as a possible defence, as seen in Parker No. 2

Moffa v R - Once the issue of provocation was before the jury, the onus was on the crown to establish beyond a reasonable doubt that the killing was unprovoked.

c)      Evidential Onus

Johnson v R - The burden of proof in establishing provocation rested on the accused.

When D discharges the evidential onus, with the result that the defence of provocation is left with the jury, then, supposing that it can in the first place prove murder, the prosecution must negative the elements of defence beyond reasonable doubt - Johnson v R

Parker(No 1) (1963) - If the evidence contained some reasonable evidence of provocation, then it must be left to the jury even though the issue had not been specifically raised by the defence.

-         Lee Chun-Chuen v R [1963]
-         Da Costa v R (1968)
-         R v Camplin [1978]