the offence; and (c) every person who counsels or procures another to commit the offence." 20. Section 8 of the Code provides:- "8. OFFENCES COMMITTED IN PROSECUTION OF COMMON PURPOSE (1) When 2 ... persons form a common intention to prosecute an unlawful purpose in conjunction with one another and in the prosecution of such purpose an offence is committed by one ... of them, the other ... is presumed to have aided or procured the perpetrator ... of the offence to commit the offence unless he proves he did not foresee the commission of that offence was a possible consequence of prosecuting that unlawful purpose. (2) Two ... persons form a common intention to prosecute an unlawful purpose in conjunction with one another when they agree to engage in or concur in engaging in any conduct that, if engaged in, would involve them ... or one of them in the commission of an offence or a tort." 21. As noted earlier, it is clear from the evidence that Ron Larry had not personally given Jameson Haywood any provocation. I consider that Jameson Haywood could not have had any reasonable (though mistaken) belief on the facts that Ron Larry had been driving the Police vehicle when it struck him, or had been acting in concert with the constable at the time. There is no evidence which fairly raises that issue. Section 12(1) has no application on the facts; it applies only to offences, and it is not suggested that the constable by his manner of driving committed any offence. Section 8 has no application on the facts; see the observation at p 13 on "wrongful act". 22. As to Jameson Haywood's assault upon the constable with the bottle, I consider that in terms of s.34(1)(d) it is clear beyond doubt that no "ordinary person" (in the sense referred to at p 18) similarly circumstanced to Jameson Haywood at the time would have acted in the same way as he did, or in a similar way, and the excuse of provocation is thereby excluded by virtue of s.34(1)(d) of the Code. 23. For the injury to Jameson Haywood by the Police vehicle to constitute "provocation" under s.34(1) of the Code, the driving by Constable Pritchard off the road for 9 metres, in itself or by the manner in which he drove and in the circumstances which then obtained, had to constitute "an act that (was) wrong by the ordinary standards of the community"; see the definitions of "provocation" and "wrongful act" at pp 4 and 5. I consider that very clearly it was not wrong by the ordinary standards of any community in the Territory. 24. For these reasons, I consider that the excuse of provocation is negatived and Jameson Haywood was rightly convicted on both charges he faced; I dismiss his appeal against those convictions. (2) Peter Corbett Jabarula, Clarrie Haywood Jambajimba and Lennie Corbett Jabarula (a) The appellants' submissions 25. As to the other 3 appellants, Mr Lindner submitted that his Worship had erred in ruling that they could not rely on the excuse of provocation and had therefore erred in proceeding to convict them. He submitted that his Worship's conclusion (p 7) that provocation was not open to these 3 appellants must have proceeded on the basis that they had not themselves been injured by the Police vehicle, unlike Jameson Haywood, and that to rely on the excuse of provocation, the Code required that they themselves had been provoked. That is to say, in terms of the Code, the submission was that the Magistrate had wrongly proceeded on the basis that the excuse of provocation under s.34(1) was only available when the victim "gave him (that is, the accused) that provocation". The question raised by this submission is whether indirect provocation may constitute provocation under the Code. (b) Indirect provocation 26. Mr Lindner submitted that the question for determination, in general terms, was whether the excuse of provocation under Code s.34(1) could be open to A for his assault on B, where there had been an act of provocation by B (or A reasonably believed that there had been an act of provocation by B) in the presence of A which had clearly not been directed at A, but directed at C. In other words, can provocation under the Code be indirect, or must the provocative act of the accused's victim be directed at the accused? Mr Lindner submitted that provocation may be indirect in this sense; he relied on R v Kenney [1983] VicRp 106; (1983) 2 VR 470. I turn to examine that case to see whether it is authority for that proposition; it will be seen that it is not. 27. (His Honour then discussed Kenney (supra) in detail, and concluded:) It can be seen that his Honour was dealing in Kenney (supra) with a situation where the accused's retaliation was misdirected, and not with a situation of indirect provocation. Accordingly, the case does not support the proposition for which Mr Lindner contends. I note incidentally that at common law it seems that provocation was restricted to acts done by the victim; see the discussion in R v Davies (1975) QB 691 (CA) at pp 699-700. 28. The terms of s.34(1) of the Criminal Code, which define the scope of provocation by reference to acts of the accused "committed ... upon the person ... who gave (the accused) that provocation", clearly require both that the victim did the provoking act, and that his provocation was directed to the accused. Thus cases of indirect provocation and misdirected retaliation are not included in the scope of the excuse under s.34(1). 29. However, s.34(1) must be read in the light of the excuse of honest and reasonable mistaken belief in s.32. I consider that the effect of reading both provisions together is that an honest and reasonable, though mistaken, belief by an accused that his victim had done the act which provoked him (an act which was in fact done by another), renders the excuse of provocation under s.34(1) of the Code open to the accused who, provoked by that act and under that mistaken belief, misdirects his retaliation. See in general the observations of Brennan J. on the effect of mistaken belief, in He Kaw Teh v The Queen [1985] HCA 43; (1984) 157 CLR 523 at pp 573-6. 30. The question posed by Mr Lindner in relation to the charge faced by Clarrie Haywood of assaulting Constable Pritchard concerns indirect provocation, not misdirected retaliation; see the discussion of these concepts by R.S. O'Regan in (1968) Crim LR 319. 31. I do not think that indirect provocation, as discussed, is open as an excuse under the Code as it stands. That result was possibly unintended. The use of the words "in the presence" of an ordinary person in the definition of "provocation" in s.1 of the Code, may indicate that substantive provision for indirect provocation was intended to follow. But there is nothing in that definition corresponding to the following provision in s.268 of the Queensland Code, viz. "When such an act ... is done ... by one person ... in the presence of another to a person who is under the immediate care of that other, or to whom the latter stands in any such relation (as earlier set out), the former is said to give the latter provocation ..." (emphasis mine) That provision clearly provides for indirect provocation, caused by provocative acts to restricted categories of persons in the presence of the accused, to be treated as provocation under that Code, an approach which follows the common law, and that of the various States e.g. s.23(2)(a) of the Crimes Act (NSW). The absence of any such provision in the Territory Code means that provocation cannot be indirect, in the light of the language in s.34(1). 32. I consider that if I am wrong on this, and Clarrie Haywood could rely on indirect provocation (constituted by the injury to Jameson Haywood) to excuse his assault on the constable, it is clear in terms of s.34(1)(d) that "an ordinary person similarly circumstanced would (not) have acted in the same or a similar way" as he did. It is necessary to elaborate on what is meant by the "ordinary person" in this connexion. 33. The Territory has developed its own jurisprudence in relation to the "ordinary person", who constitutes the objective standard which an accused must meet, both for loss of self-control in the definition of "provocation" in s.1, and for the nature and degree of retaliation in s.34(1)(d). It stems from the path-breaking judgments of Kriewaldt J., as his Honour gradually adapted the common law of provocation, which then applied in the Territory, to the cultural patterns of Aboriginal life in the Territory. In 1951 in R v Patipatu (1951-1976) NTJ 18 at p 20 his Honour summed up to the jury on provocation in terms of the reactions of "an ordinary reasonable (Aboriginal) person in that vicinity and of that description". In 1953 in R v MacDonald (1951-1976) NTJ 186 at p 190 the summing up was in terms of "the average reasonable (Aboriginal) native of Australia". In 1956 in R v Muddarubba (1951-1976) NTJ 317 at p 322 in his summing up, his Honour said:- "In my opinion, in any discussion of provocation the general principle of law is to create a standard which would be observed by the average person in the community in which the accused person lives. It is clear from the cases decided by Courts whose decisions bind me that in white communities matters regarded as sufficient provocation a century ago would not be regarded as sufficient today. This suggests that standard is not a fixed and unchanging standard, it leaves it open, and I think properly so, to regard the Pitjinjara (sic) tribe as a separate community for the purpose of considering the reaction of the average man. I tell you that if you think the average member of the Pitjinjara tribe (and you must remember these are 'Myall' blacks) would have retaliated to the words and actions of the woman by spearing her, then the act of spearing is not murder, but manslaughter. If provocation sufficient for the average reasonable person in his community to lose his self control exists, then the unlawful killing is manslaughter and not murder. I may be wrong but until put right by a higher court I shall continue to tell juries that the members of the Pitjinjara tribe are to be considered as a separate community for the purposes of the rules relating to provocation. I shall not apply to them the standard applied to the white citizens of the Northern Territory." (emphasis mine) 34. In 1959 in R v Jimmy Balir (1951-1976) NTJ 633 at p 637 as in 1956 in R v Nelson (1951-1976) NTJ 327 at p 335, his Honour made it clear that while the law was the same for everyone, the jury could take the view that an ordinary Aboriginal man might take longer to cool down after being provoked than would a non-Aboriginal, and might retaliate in a different way. 35. The question of the "ordinary person" in the law of provocation with which his Honour grappled, now comes increasingly to the fore as presenting a general problem in Australia's pluralistic society: how to balance individualized justice and cultural pluralism with the need to create a broad sense of community common purpose, and commonly-shared values. While Aboriginal communities in the Territory remain as distinct communities possessing a separate culture and identity and a degree of physical separation from the wider community, so the standard of the "ordinary person" will vary in its application in the Territory. 36. As his Honour said, the standard is not "fixed and unchanging". The lifestyle of many of the Aboriginal inhabitants of the Territory has greatly changed over the last 30 years. However, there are still many Aboriginal communities such as Ali Curung, relatively isolated, oriented in part to traditional ways of life, and still possessing a distinct Aboriginal cultural identity. 37. A similar approach to that taken by Kriewaldt J. has been adopted in Queensland. In R v Rankin (1966) QWN 10 an Aboriginal on a settlement was charged with wilful murder. A question arose as to the manner in which the jury should be directed on provocation. Campbell J. held that the question for the jury's consideration was whether the provocation was sufficient to deprive an ordinary Aboriginal who lived on an Aboriginal settlement, of his power of self control. I respectfully agree with that approach, which has, I believe, been the consistent approach of the judges of this Court. It may be noted that in Rankin (supra) "a cross-section of such Aboriginals appeared before the jury and gave evidence". Presumably, this afforded the jury a better opportunity to decide the question whether the provocation met this objective standard as to loss of self-control. Direct evidence directed to establishing the standard is not in my view admissible; see Phipson (supra, p 6). 38. Following Kriewaldt J., I consider that an "ordinary person" for the purposes of s.34(1)(d) of the Code means, in the circumstances of this case, an ordinary Aboriginal male person living today in the environment and culture of a fairly remote Aboriginal settlement, such as Ali Curung. He is neither drunk nor affected by intoxicating liquor, does not possess a particularly bad temper, is not unusually excitable or pugnacious, and possesses such powers of self control as everyone is entitled to expect an ordinary person of that culture and environment to have. He possesses such of the appellants' general cultural characteristics as might affect their reaction to the injury to Jameson Haywood caused by the constable's driving, in the atmosphere and context in which that accident occurred. 39. Adopting that standard for the "ordinary person" I consider, as noted earlier, that the 3 appellants' actions went well beyond the reactions of an ordinary person. I have no doubt his Worship was quite correct, in ascribing their actions on this occasion largely to drunkenness. 40. Since Lennie Corbett, Clarrie Haywood and Peter Corbett are unable to rely on s.34(1) to excuse their admitted assaults, they were rightly convicted, and their appeals against their convictions are dismissed.