Set aside the order of the Full Court of the Supreme Court of Victoria and appellant's conviction be quashed and a new trial held.

BRENNAN, DEANE, DAWSON AND GAUDRON JJ The appellant, Giovanni Masciantonio, was convicted of the murder of his son-in-law, Maurizio Femia. The offence occurred on 19 June 1991 and took place outside a yard occupied by Grollo Constructions Pty. Ltd. in Chifley Drive, Preston. Both the appellant and the deceased were employed by Grollo Constructions Pty. Ltd. The learned trial judge left provocation to the jury, but complaint is made by the appellant of the manner in which he did so. In the Court of Criminal Appeal (Crockett, Marks and Ormiston JJ) Crockett and Marks JJ held that the trial judge correctly left provocation to the jury in relation to the first stage of the events in question and disclosed no error in apparently withdrawing that issue in relation to the second stage. Ormiston J was of the view that provocation ought not have been left at all so that any error on the trial judge's part with respect to that issue did not occasion any substantial miscarriage of justice. The Court of Criminal Appeal dismissed the appeal and it is from that judgment that the appellant now appeals to this Court.

2. In order to understand the provocation relied upon by the appellant, it is necessary to set out certain facts by way of background. The appellant was born in Italy in 1936 and migrated to Australia in 1955. He completed only five years schooling in Italy and worked in this country as a concreter. His family consists of his wife, Concettina, his daughter, Lia, who was married to the deceased, his son, Achille, and a younger daughter, Pina.

3. The appellant suffered a head injury in 1956 which required treatment to relieve a haemorrhage inside his skull. There was no evidence that the appellant suffered any brain damage as a result of the head injury. However, there was evidence that since suffering the injury, he reacted overtly to stress. A psychiatrist gave evidence that the appellant had a predisposition to a dissociative state when under stress and that such a dissociative state had occurred on 19 June 1991. There was evidence that the appellant had been referred to a psychiatrist in 1988 in relation to depression, which seemed to have been brought on by his wife's absence during a two month visit to Italy. The appellant received treatment for this depression and gave evidence that he felt better after the treatment.

4. The daughter Lia and the deceased married in 1980. The couple had two children, a son and a daughter. They originally lived in the appellant's house, using a separate kitchen which he had built for them. There was a history of matrimonial difficulties. The couple first separated in May 1990. Lia, who was pregnant with her daughter at the time, went to live with her aunt. The deceased went to live with his stepfather. Lia and the deceased sold the family home which they had bought and divided the proceeds equally between them, despite the fact that Lia had contributed most of the money to the mortgage repayments. In November 1990, there was a reconciliation and the deceased moved in with Lia and her aunt. The daughter was born soon after. The deceased then bought a block of land which he registered in his name only, despite the fact that Lia contributed most of the purchase price.

5. The relationship between the deceased and Lia continued to deteriorate. The deceased had a gambling problem and a poor work record and Lia received little financial support from him during their marriage. There was a history of violence on the part of the deceased. Evidence was given of incidents which occurred over a number of years. Of these, it seems that the appellant was aware of the following events.

6. Before Lia and the deceased were married, they had an argument about invitations to the wedding during which the deceased "gave Lia a back-hander". This incident was not witnessed by the appellant, but was reported to him by his wife and Pina. Twelve years before his death, the deceased had been involved in an incident at a party in which he had tried to strangle Lia's brother, Achille. Again, the appellant did not witness this event, but was informed of it by members of the family. The appellant said that during the time Lia was married to the deceased he had noticed "black marks" on her arms. He said that he discussed the matter with his wife and that they thought it could have been as a result of the deceased's behaviour. There was also an incident in which John, Lia's son, told the appellant that the deceased had kicked Lia while she was lying on the ground. The appellant said he had asked Lia about this, but that she told him not to worry about it. The appellant gave evidence that about three years before the death of the deceased, he had seen a hole in the wall of Lia's bedroom "like something had been thrown". The appellant asked Lia about it, but she told him not to worry.

7. The appellant also gave evidence that he had had occasion to speak to the deceased about "being out of the home at night" and his gambling habit. The appellant was also aware of Lia's financial difficulties and had lent her money in the past. There was evidence that whenever the appellant approached the deceased to speak about any of these matters, the deceased would withdraw and avoid confrontation.

8. On the morning of 17 June 1991, the deceased demanded that Lia give him several thousand dollars of her money to enable him to travel to Italy. Lia refused to give him the money. There was an argument and the deceased left the house. He returned in the afternoon and repeatedly demanded that Lia withdraw the money and give it to him. That evening the couple were expected at a family function. Lia went with her children, but the deceased went to an espresso bar in Thornbury instead.

9. The appellant and his wife attended the function. They left the gathering at about 9.00 p.m. and, as they were driving home, they saw the deceased inside the cafe. The appellant's wife pointed out to him that the deceased was at the cafe "having fun" rather than attending the family function with Lia.

10. When Lia returned home that night she found that the deceased had left her and taken various items, including a stereo and a television set for which she had paid with her own money. Lia telephoned her father and told him what had happened. The appellant and his wife went to Lia's house. She told her parents that the deceased had wanted money from her and that was the reason he had left. The appellant was upset upon hearing about this. On 18 June 1991 the appellant was still upset and was crying. He said that the deceased was not doing the right thing and "Poor Lia, he has taken everything and left her with the children."

11. On 19 June 1991, the appellant went to work on a construction site in the city. He left at about 3.30 p.m. He intended to go to the yard in Chifley Drive, Preston, where employees of Grollo Constructions Pty. Ltd. would go after work to change and sign off. The appellant decided to speak to the deceased, whom he knew he would be able to find at the yard. At about 4.00 p.m., the appellant drove to Chifley Drive where he saw the deceased crossing the road to his Fiat motor car which was parked a short distance from the yard. The appellant stopped his car and approached the deceased. The appellant said: "Can't you do something better than what you are doing?" The deceased told the appellant to "piss off". The appellant gave sworn evidence that the deceased aimed a kick at him which missed and that he fell or was pushed by the deceased and that as a result, his elbow was injured. A struggle took place. At some point, the appellant obtained a knife from his car and stabbed the deceased a number of times. One or more of the wounds inflicted was fatal.

12. Witnesses gave evidence that they heard loud screaming coming from the street and went out to investigate. According to their evidence the appellant and the deceased were struggling against the driver's side of the deceased's motor car. The appellant was punching the deceased repeatedly with one hand as he was trying to stab him with a knife which he held in the other. The appellant and the deceased appeared to be struggling over the control of the knife. The deceased managed to break away from the appellant and make his way around the rear of his car on to the footpath where he collapsed. A number of persons attempted to assist the deceased, but the appellant threatened them with the knife and they kept back. Two witnesses each threw a brick at the appellant and one struck him on the shoulder. The appellant said: "Come on, come on."

13. The appellant then went over to the deceased who was lying on the footpath. He lunged forward and stabbed the deceased in or about the throat. One witness said to the appellant: "Go away, go away, he's already dead." In fact, the witness could see that the deceased was still breathing. The appellant replied: "Is he dead? Is he dead?" The witness said that he was and told the appellant not to stab him any more. The appellant then returned to his own motor car and drove away. The deceased was taken to hospital and died on the way.

14. The deceased suffered stab wounds to his neck, chest and leg. One stab wound, referred to as wound no.5, was to the chest and extended through the heart and severed the aorta. This would appear to have been the fatal wound but there was some conflict in the medical evidence as to whether it would have prevented the deceased from moving any distance after it was inflicted. The question arose, therefore, whether the fatal wound was inflicted when the deceased was on the ground or previously during the struggle at the side of the deceased's car. There was, however, a photograph which showed that the blood from wound no.5 flowed upwards towards the deceased's shoulder.

15. Shortly after the events in Chifley Drive the appellant went of his own accord to the Heidelberg police station where he said: "I'm in very bad trouble." He was asked whether he had come from the stabbing and he replied: "Yes, in Chifley Drive, oh my God." The police said that on arrival at the police station the appellant had blood stained hands and was in shock.

16. The appellant was interviewed by the police and in his first interview said that he saw the deceased come out of the yard in Chifley Drive and that he had stepped out of his car to speak to him. He said that they were standing on the road when an argument started. The appellant said: "He kicked me, he pushed me. I don't know how he - what he did, but he hurt my arm. He threw something or - I don't know what it was."

17. The appellant was later examined by a doctor who found that he had a laceration to his left elbow which required stitching. The elbow wound was said to have been consistent with having been inflicted with a knife or sharp-edged object and inconsistent with a fall to the ground or striking the edge of a car door unless it had a sharp edge protruding.

18. During a re-enactment at the scene for the police, the appellant said that after he received the injury to his arm, he ended up back near his car and then he lost control and saw the knife. He said: "I started getting nervous. I lost control and I saw the knife (beside) behind the seat. I got the knife and (sic). I was here. And he was there near that door (indicating). I don't know what he wanted to do, hit me here or there. We commenced pushing each other."

19. In his sworn evidence the appellant said that when he fell to the ground, he felt pain in his elbow. He said that when he fell he saw the knife in his car and he took it out to scare the deceased. After that, he said, he could not remember anything except that they were fighting for the knife. The appellant said that he had placed the knife in the car a few days earlier in preparation for a trip to Dromana where he had a property. He said that he intended to use the knife to dig out onions. The trip did not eventuate because of bad weather, but the knife remained in the car and was forgotten.

20. The appellant raised the defences of accident, automatism, self-defence and provocation. The trial judge clearly intended to leave provocation to the jury and he probably intended to do so both in relation to the events which occurred at the side of the deceased's Fiat motor car and the events which occurred when the deceased was lying on the footpath. However, the trial judge directed the jury as follows:

"The dispute between the pathologists is obviously an important matter in terms of the defences relied upon, because, if the deceased received a fatal injury near the Fiat, the defences of accident and automatism and lack of intent, self-defence and provocation would all be very relevant and open. But, if the fatal injury occurred when the deceased had collapsed on the footpath and was still being attacked by the accused, defences of accident, lack of intent, self-defence and provocation, would appear not to be open and to have no relevance whatsoever in this trial. Only automatism would then remain." (emphasis added)

21. Elsewhere in his charge the trial judge drew a distinction between the two stages in events. He said:

"The issue for you to consider is whether the acts which killed the deceased were done during a period of loss of self-control.

Now you will consider carefully the evidence of the eyewitnesses and the expert pathologists. You may take the view that the altercation between the accused and the deceased was a two stage affair. The first stage occurred near the Fiat car and ended when the deceased collapsed on the footpath; the second stage occurred when the accused stabbed the deceased repeatedly as he was lying immobilized on the footpath. You will consider what injuries the deceased sustained at each stage and whether any of these injuries were mortal.

If the accused lost his self-control during the first stage, was he still out of control when he did the acts which you find he did when the deceased man was lying immobilized on the footpath? You will remember the evidence of the eyewitnesses in regard to what they saw done to the deceased man as he lay on the footpath.

If the accused was not out of control then, and he received (sic) a fatal injury at that stage, it may be difficult to conclude that the killing was as a result of the accused being out of control. Then the Crown would have proved the killing was unprovoked."

Later the trial judge referred to the medical evidence in relation to the wounds inflicted upon the deceased:

"in relation to wound 5, it being the fatal wound on any view of the evidence, you must be satisfied beyond reasonable doubt by the Crown as to where that wound was inflicted. Where you determine that wound was inflicted, and the circumstances in which you become satisfied that it was inflicted, are very important because it has consequences in terms of the defences that have been relied upon here.

It is obvious enough that wound no.5, if you find it proved was inflicted by the car, then, of course, many of the defences that are taken here would be open. On the other hand, wound no.5, if you find it is proved occurred on the footpath, then a number of the defences such as self-defence, for example, and accident, and lack of intent, would obviously go by the board."

22. Having regard to the absence of any mention of provocation in the last passage cited from the trial judge's charge, it was perhaps merely a slip on his part when he said that, if the fatal wound was inflicted whilst the deceased was on the footpath, provocation as well as the defences of accident, lack of intent and self-defence "would appear not to be open and to have no relevance whatever in this trial". Be that as it may, the effect of that direction was to withdraw provocation from the jury's consideration in relation to the second stage of events, or at least that is how the jury may well have interpreted it. Thus, if provocation ought to have been left to the jury in relation to the second stage of events, then there was a misdirection of a fundamental kind which was not subsequently corrected.

23. In the Court of Criminal Appeal Crockett and Marks JJ concluded that, in relation to the second stage of events, there was no evidence of provocation fit to be left to the jury. They were of the view that, accepting the version of the facts most favourable to the appellant, "no jury could have been other than satisfied that an ordinary person would not have continued as the applicant ... did namely, to attack the deceased when he was lying helpless on the ground from the stab wounds inflicted at the side of the Fiat motor car". The remaining member of the Court, Ormiston J, concluded that provocation ought not to have been left to the jury in relation to either stage of events. The Court was, therefore, unanimous in concluding that the alleged misdirection upon provocation could not have occasioned any miscarriage of justice(1).

24. This Court recently re-examined the law of provocation in Stingel v. The Queen(2). The re-examination was in the context of s.160 of the Criminal Code (Tas.) and the attention of the Court was focused upon that section, particularly the phrase "wrongful act or insult" which appears in it. However, as the Court observed, there is a large degree of conformity in the law of provocation whether it be common law or statutory. No doubt that is because the codes and various statutory provisions either attempt to declare or to build upon the common law, but it means that almost invariably in any exposition of the law in statutory form, the common law is also expounded. Thus, the Court said in Stingel(3) that it shared the perception "that, in this particular field of criminal law, the common law, the Codes and other statutory provisions, and judicial decisions about them, have tended to interact and to reflect a degree of unity of underlying notions". It is common law provocation which applies in Victoria, but much of the reasoning in Stingel is that of the common law and it is therefore appropriate to set out the basic concepts recognized by that decision which are applicable in this case.

25. Homicide, which would otherwise be murder, is reduced to manslaughter if the accused causes death whilst acting under provocation. The provocation must be such that it is capable of causing an ordinary person to lose self-control and to act in the way in which the accused did. The provocation must actually cause the accused to lose self-control and the accused must act whilst deprived of self-control before he has had the opportunity to regain his composure.

26. It follows that the accused must form an intention to kill or to do grievous bodily harm (putting recklessness to one side) before any question of provocation arises. Provocation only operates to reduce what would otherwise be murder to manslaughter. Since the provocation must be such as could cause an ordinary person to lose self-control and act in a manner which would encompass the accused's actions, it must be such as could cause an ordinary person to form an intention to inflict grievous bodily harm or even death(4).

27. The test involving the hypothetical ordinary person is an objective test which lays down the minimum standard of self-control required by the law. Since it is an objective test, the characteristics of the ordinary person are merely those of a person with ordinary powers of self-control. They are not the characteristics of the accused, although when it is appropriate to do so because of the accused's immaturity, the ordinary person may be taken to be of the accused's age.

28. However, the gravity of the conduct said to constitute the provocation must be assessed by reference to relevant characteristics of the accused. Conduct which might not be insulting or hurtful to one person might be extremely so to another because of that person's age, sex, race, ethnicity, physical features, personal attributes, personal relationships or past history. The provocation must be put into context and it is only by having regard to the attributes or characteristics of the accused that this can be done. But having assessed the gravity of the provocation in this way, it is then necessary to ask the question whether provocation of that degree of gravity could cause an ordinary person to lose self-control and act in a manner which would encompass the accused's actions.

29. It has been said on a number of occasions that it is an element of provocation that the retaliation should be proportionate to the provocative incident. For example, in Mancini v. Director of Public Prosecutions(5) Viscount Simon LC said: "In short, the mode of resentment must bear a reasonable relationship to the provocation if the offence is to be reduced to manslaughter." However, it is now well established(6) that the question of proportionality is absorbed in the application of the test of the effect of the provocation upon the ordinary person. As Lord Diplock said in Phillips v. The Queen(7) Viscount Simon's remark was "an elliptic way of saying that the reaction of the defendant to the provocation must not exceed what would have been the reaction of a reasonable man". And as Barwick CJ pointed out in Johnson v. The Queen(8) in considering whether an ordinary person could have reacted in the way in which the accused did, it is the formation of an intent to kill or do grievous bodily harm which is the important consideration rather than the precise form of physical reaction.

30. The answer to the question whether the trial judge should have left provocation to the jury at either stage of events in this case depends upon whether there was evidence which was capable of constituting provocation. However, because the onus of disproving provocation rests upon the prosecution once there is evidence to raise the question, the actual test must be expressed somewhat more precisely. It is "whether, on the version of events most favourable to the accused which is suggested by material in the evidence, a jury acting reasonably might fail to be satisfied beyond reasonable doubt that the killing was unprovoked in the relevant sense"(9). The question is the same when a trial judge is considering whether or not to leave provocation to the jury as it is when an appellate court is considering whether it ought to have been left, but as a matter of practicality a trial judge is likely to lean towards leaving provocation if he or she can. As was observed by the Privy Council in Lee Chun-Chuen v. The Queen(10):

"there is a practical difference between the approach of a trial judge and that of an appellate court. A judge is naturally very reluctant to withdraw from a jury any issue that should properly be left to them and he is therefore likely to tilt the balance in favour of the defence. An appellate court must apply the test with as much exactitude as the circumstances permit."

31. There was clear evidence of provocation in this case. Upon the version most favourable to the appellant, the deceased told the appellant to "piss off" and attempted to kick him. The deceased also pushed the appellant so that he fell to the ground injuring his elbow. The gravity of this provocation must be seen against the appellant's long-standing concern over the deceased's treatment of his daughter and his emotional response to the situation. His concern might be inferred from the fact that he sought out the deceased to speak with him about the matter notwithstanding the failure of previous approaches to the deceased. In those circumstances, it is possible that a reasonable jury might regard as highly provocative to the appellant the unequivocal rejection by his son-in-law of his approach to him. That rejection was in the form of conduct which was both physically and verbally insulting. Moreover, there was evidence that the appellant, an older man, experienced both fear and anger at the actions of the deceased. Whilst anger is primarily a feature of provocation and fear a feature of self-defence, loss of self-control may be due to a mixture of fear and anger(11).

32. There was ample evidence from which a jury might conclude that the appellant lost self-control as a result of the deceased's conduct. Apart from his statement to the police that he lost self-control, the very ferocity of his actions in stabbing the deceased repeatedly in the presence of a number of onlookers suggests a loss of self-control(12). Nor, in our view, is it possible to draw a distinction in this regard between the two stages of events, the one when the deceased was beside the Fiat motor car and the other when he was lying on the footpath. Indeed, the continuation of the attack by the appellant whilst the deceased was on the footpath, despite the attempted intervention of bystanders, would point to a continuing loss of self-control. Moreover, the whole altercation occurred within a short space of time such that a jury might conclude that there was insufficient time for the appellant to regain his composure and that he acted from loss of self-control at both stages of events.

33. Whether an ordinary person could have reacted in the way in which the appellant did would pose a more difficult question for a jury. However, if a jury were to conclude, as it might, that the provocation offered by the deceased was, in the circumstances in which the appellant found himself, of a high degree (and there was some evidence to support such a conclusion) then it is possible that a reasonable jury might also conclude that an ordinary person could, out of fear and anger as a result of that provocation, form an intention to inflict at least grievous bodily harm and act accordingly.

34. In Stingel(13) this Court quoted with approval an observation by Viscount Simon in Holmes v. Director of Public Prosecutions(14) that the wrongful act or insult must have been capable of provoking an ordinary person not merely to some retaliation but "to the degree and method and continuance of violence which produces the death". Reliance was placed by the respondent upon the use of the word "continuance", it being suggested that an ordinary man would not have continued to stab the deceased repeatedly as the appellant did. But this, we think, is to place a wrong interpretation upon the word "continuance" in the particular context. In that context, the word was not, in our view, intended to indicate more than that the conduct in question must have been capable of provoking an ordinary person to retaliation of the like nature and extent as that of the accused. The question is not whether an ordinary person, having lost his self-control, would have regained his composure sooner than the accused nor is it whether he would have inflicted a lesser number of wounds. It is whether an ordinary person could have lost self-control to the extent that the accused did(15). That is to say, 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 grievous bodily harm and to act upon that intention, as the accused did, so as to give effect to it. The associated question whether, in the sequence of events, an accused, having lost his self-control, had regained it so that the continued infliction of injury was in fact no longer provoked, is not a question to be answered by reference to the ordinary person. It is to be answered by reference to the conduct of the accused himself and to common experience of human affairs. It is the nature and extent - the kind and degree - of the reaction which could be caused in an ordinary person by the provocation which is significant, rather than the duration of the reaction or the precise physical form which that reaction might take. And in considering that matter, the question whether an ordinary person could form an intention to kill or do grievous bodily harm is of greater significance than the question whether an ordinary person could adopt the means adopted by the accused to carry out the intention.

35. In reaching our opinion that a reasonable jury could conclude that the appellant was acting under provocation in the legal sense when he killed the deceased, or at least have a reasonable doubt about it, we are, of course, not expressing any view that a jury should or would reach such a conclusion. Indeed, there are weaknesses in the evidence which are readily apparent. We are merely expressing the view that upon the evidence it was open to a jury, properly directed as to the law, to reach that conclusion.

36. Since the trial judge, whether inadvertently or not, effectively withdrew from the jury's consideration the issue of provocation at the second stage of events and since the appellant's loss of self-control may have continued to that stage, there cannot be said to be no substantial miscarriage of justice. We would allow the appeal and order a retrial.

McHUGH J Giovanni Masciantonio ("the accused") was convicted by a jury in the Supreme Court of Victoria of the murder of his son-in-law, Maurizio Femia. The Court of Criminal Appeal of that State unanimously dismissed an appeal against his conviction. Pursuant to the grant of special leave, he now appeals to this Court. The principal question in the appeal is whether it was open to the jury to find manslaughter on the ground of provocation if the jury found that the deceased had died as the result of a stab wound inflicted after he had broken away from an altercation with the accused and had collapsed on a nearby footpath. The other question in the appeal is whether the trial judge did in fact take this aspect of provocation away from the jury.

2. Although parts of the learned judge's directions indicate that he intended to leave provocation to the jury as an answer to the whole of the Crown case, his comments on the facts make it likely that the jury would have understood that a finding of provocation was not open if they found that the fatal wound was inflicted while the deceased was lying on the footpath. It would be unsafe to proceed upon the basis that the jury thought otherwise. The appeal must be determined, therefore, on the basis that the learned judge's directions took away the issue of provocation if death was caused by a wound inflicted while the deceased lay on the footpath.

3. At common law a jury is entitled to return a verdict of manslaughter instead of murder if it finds that the death of the deceased was the result of a sudden and temporary loss of self-control on the part of the accused that was caused by provocative conduct on the part of the deceased. The issue can be left to the jury although the loss of self-control did not follow immediately upon, or as the result of a specific incident of, provocative conduct(16). Moreover, the issue of provocation is predicated on a finding that the jury has found that the elements of murder have been established and that the accused had acted with reckless indifference to human life or had an intention to kill or cause grievous bodily harm to the deceased(17). However, before the provocation of the deceased can reduce a verdict from murder to manslaughter there must be evidence which could induce the jury to find that the Crown had not proved beyond reasonable doubt that an ordinary person would not have lost self-control as the result of the provocation to "the extent and degree" that the accused did(18). In Stingel v. The Queen(19), this Court unanimously held that the provocative conduct "must have been capable of provoking an ordinary person not merely to some retaliation, but to retaliation 'to the degree and method and continuance of violence which produces the death'". Stingel was decided on the provisions of the Tasmanian Criminal Code, but the Court saw no significant difference between the objective self-control requirement of the Code and the objective self-control requirement of s.23(2)(b) of the Crimes Act 1900 (N.S.W.) considered by the Court in Johnson v. The Queen(20) and the common law doctrine on the point. In Stingel(21), the Court noted that, "in this particular field of criminal law, the common law, the Codes and other statutory provisions, and judicial decisions about them, have tended to interact and to reflect a degree of unity of underlying notions".

4. In determining the extent to which the conduct of the deceased would have provoked an ordinary person, the jury is entitled to consider all "the attributes or characteristics" of the accused(22) and "the totality of the deceased's conduct"(23). The accused's age, sex, ethnicity, personal characteristics and physical features are only some of the matters that the jury can consider in determining the nature, extent and gravity of the provocative conduct of the deceased. Because the doctrine of provocation is the product of "the mercy of the law (interposing) in pity to human frailty"(24), it is natural that the law should regard as relevant any circumstance that throws light on the effect of the deceased's conduct on the accused. Such a circumstance may arise from the personal history of the accused or his or her relationship with the deceased or otherwise. The rationale of the doctrine is the frailty of human nature and the consequent need to make concessions to that frailty. However, neither the common law nor any of the Codes or statutory substitutions has been able to accept all the implications of this rationale of the doctrine of provocation.

5. The requirement that the conduct of the deceased must have been capable of provoking an ordinary person to "retaliation 'to the degree and method and continuance of violence which produces the death'" departs from the rationale of the doctrine of provocation(25). It does so by ignoring the personal idiosyncrasies of the accused and substituting the objective standard of the ordinary person's reaction to the provocation. In Stingel(26), the Court accepted that "the rationale underlying the objective test" was that identified by Wilson J in Reg. v. Hill(27) where the learned judge said:

"The objective standard, therefore, may be said to exist in order to ensure that in the evaluation of the provocation defence there is no fluctuating standard of self-control against which accuseds are measured. The governing principles are those of equality and individual responsibility, so that all persons are held to the same standard notwithstanding their distinctive personality traits and varying capacities to achieve the standard."

As a result, the Court held in Stingel that the age of the accused is the only personal characteristic of that person that can be attributed to the hypothetical person whose capacity for self-control is the criterion of the objective standard of provocation.

6. Thus, a curious dichotomy exists. The personal characteristics and attributes of the accused are relevant in determining the effect of the provocative conduct but they are not relevant in determining the issue of the self-control. The distinction has been strongly criticised on the ground that "it runs counter to human reality"(28). It has been argued that the dichotomy is "inconsistent with the opinion of behavioural scientists that the accused's personality must be taken as a whole and cannot be dissected into the way he or she would view some provocative conduct on the one hand and the way he or she would respond emotionally to that conduct on the other"(29). No doubt there is inconsistency between taking the personal characteristics and attributes of the accused into account on the issue of provocation but not on the issue of self-control. But it is an inconsistency that could be abolished only by abolishing the "ordinary person" test itself(30).

7. The "ordinary person" standard would become meaningless if it incorporated the personal characteristics or attributes of the accused on both the issue of provocation and the issue of self-control. In so far as the courts have incorporated those characteristics and attributes in respect of the issue of provocation, they have acted inconsistently with the rationale of the objective test. To go further and incorporate them in the self-control issue would require the abolition of the objective test, and that test is too deeply entrenched in the common law to be excised by judicial decision. Besides, the Codes and statutory substitutions for the common law of provocation contain objective tests of self-control. It would defeat the considerable unity that exists between the common law and statutory regimes of provocation if the common law rejected its own doctrine and became inconsistent with the statutory regimes.

8. The ordinary person standard would not become meaningless, however, if it incorporated the general characteristics of an ordinary person of the same age, race, culture and background as the accused on the self-control issue. Without incorporating those characteristics, the law of provocation is likely to result in discrimination and injustice. In a multicultural society such as Australia, the notion of an ordinary person is pure fiction(31). Worse still, its invocation in cases heard by juries of predominantly Anglo-Saxon-Celtic origin almost certainly results in the accused being judged by the standard of self-control attributed to a middle class Australian of Anglo-Saxon-Celtic heritage, that being the stereotype of the ordinary person with which the jurors are most familiar.

9. I was a party to the joint judgment of the Court in Stingel. At the time, I thought that the principle of equality before the law, which is the rationale of the objective standard(32), justified rejecting any attribute of the accused to the "ordinary person" except that of age. But after reading Mr Stanley Yeo's criticism(33) of this aspect of Stingel and further reflection on the matter, I have concluded that, unless the ethnic or cultural background of the accused is attributed to the ordinary person, the objective test of self-control results in inequality before the law. Real equality before the law cannot exist when ethnic or cultural minorities are convicted or acquitted of murder according to a standard that reflects the values of the dominant class but does not reflect the values of those minorities.

10. If it is objected that this will result in one law of provocation for one class of persons and another law for a different class, I would answer that that must be the natural consequence of true equality before the law in a multicultural society when the criterion of criminal liability is made to depend upon objective standards of personhood. Moreover, to a large extent a regime of different laws already exists because the personal characteristics of the accused including attributes of race and culture are already taken into account in determining the effect of the provocative conduct of the deceased on the ordinary person. In any event, it would be much better to abolish the objective test of self-control in the law of provocation than to perpetuate the injustice of an "ordinary person" test that did not take into account the ethnic or cultural background of the accused.

11. Neither the ethnicity nor the cultural background of the accused was an issue in Stingel. Prior to the decision in that case, there were statements in the cases(34) to the effect that the ethnic or cultural background of the accused was to be taken into account on the issue of the ordinary person's self-control. Nothing said in Stingel expressly overruled those statements, although they can hardly stand with the general formulation of principle in that case. However, it is open to this Court to re-consider the issue, and I think that it should. Consequently, for the reasons that I have given, I would hold that relevant matters arising from the ethnic or cultural background of the accused can be taken into account in determining whether an ordinary person would have lost his or her self-control as the result of the deceased's provocation.

12. Upon the evidence, it was open to the jury to find:

(1) The deceased had married the accused's daughter, Lia, in 1980. They had two children.

(2) The accused believed that for many years the deceased had treated Lia badly, that on occasions the deceased had acted violently towards her, and that the marriage had been plagued with financial difficulties arising from the deceased's gambling activities. The deceased had ignored all attempts by the accused to discuss the deceased's financial problems.

(3) On 17 June 1991, two days before the killing, the deceased and Lia were expected at a family function but the deceased had not attended it. Later that evening the accused had seen the deceased at a cafe "having fun".

(4) On returning from the function, Lia had telephoned the accused and he and his wife had gone to see her. Lia told the accused that the deceased had demanded money from her to go overseas, had ended the marriage, and had taken household property which had been paid for by Lia. The accused became upset on hearing this news.

(5) The accused had a history of suffering from a depressive illness. On the day after the accused learnt that the deceased had left home, he cried and said that the deceased was not doing the right thing by Lia.

(6) At about 4.00 p.m. on 19 June the accused drove to a street near the deceased's place of work where he saw the deceased near his own motor vehicle. The accused stopped his vehicle, got out, leaving the door open, and said to the deceased: "Can't you do something better than what you are doing?" The deceased told the accused to "piss off", attempted to kick him, and pushed or shoved him causing the appellant to hurt his arm. The accused saw a knife that he had in his car, got it, and struggled with the deceased before stabbing him fatally.

(7) The actions of the accused in the course of stabbing the deceased indicated that he had totally lost his self-control.

13. Upon these facts, it was open to the jury to conclude that the Crown had not proven beyond reasonable doubt that the fatal wound was not inflicted while the accused had temporarily lost his self-control as the result of the provocative conduct of the deceased. But that was not enough to allow the accused to have the issue of provocation left to the jury. He bore an evidentiary onus to point to evidence which could enable the jury, acting reasonably, to find that the Crown had not proven beyond reasonable doubt that an ordinary person would not have lost self-control to "the extent and degree" that the accused did. Determination of that question requires an examination of the Crown case concerning the circumstances of the killing.

14. Eight witnesses gave evidence that they saw part of the struggle between the accused and the deceased. None of them saw the commencement of the struggle. They had heard loud screaming and, on going into the street, saw the accused punching the deceased repeatedly in the head with one hand while he was attempting to stab the deceased with a knife in his other hand. The two men were struggling against the driver's door of the deceased's car. One witness saw blood in the region of the abdomen of the deceased. Others spoke of deceased calling out for help. One witness said that someone called out, "Leave him alone, he's had enough." The deceased broke away from the accused, ran or perhaps staggered around the rear of his car, and crossed a grass verge to the footpath where he collapsed.

15. The first stage of the struggle must have gone on for some time. Not only did a number of witnesses gather but one witness said that, after hearing the screaming and seeing two men fighting near the front of the car, she went inside to ring the police. When she came out, the two men had moved down to the other end of the car and she noticed that there was blood on the door. She then went inside to ring an ambulance.

16. Some of the witnesses tried to assist the deceased after he had collapsed on the footpath, but the accused brandished his knife at them. One of the witnesses said that he threw a brick or a stone at the accused who came towards him and said: "Do you want it too?" The witness said that at this stage the accused was a few feet from where the deceased was lying and that the accused "was moving towards the people that were distracting him". Another witness said that someone before him had thrown a brick at the accused "so I picked up mine and threw it". He said that the brick hit the accused in the shoulder area and that the accused had said to him and another man: "Come on, come on". As they moved away, the accused "turned back and stabbed the victim again". It was put to this witness in cross-examination by counsel for the accused:

"Giovanni then came up to where Maurice was and stabbed him just below the chin? - No, he ran after us first and we moved away and then he returned.

I see. So, at that time Maurice had been lying on the footpath for some appreciable period of time? - Yes.

About how long was he lying on the footpath before Giovanni stabbed him near the chin? - It wasn't a long time.

Could it have been half a minute? - I don't know, half a minute, one minute, I can't say.

But there was an appreciable amount of time that he was lying on the footpath, other people were trying to distract Giovanni and then Giovanni went up and administered a stab? - Yes, well, we were going away, we were trying to get away and then Giovanni went back."

Another witness got an iron bar to attack the accused. But before the witness could do so, the accused lunged forward and commenced to stab the deceased while he lay on the footpath.

17. One witness said that he saw the accused stab the deceased once in the throat and twice in the chest. Another said that he saw the accused stab the deceased several times in the throat area. Other witnesses said that they saw the accused stab the deceased once. When a witness said: "Go away ... he's already dead", the accused replied: "Is he dead? Is he dead?" After this witness told the accused not to stab the deceased any more, the accused went to his car and drove away.

18. Although the details in the evidence of one or more witnesses were challenged, the general effect of their evidence does not seem to have been substantially challenged at the trial. Indeed, the attempts of the bystanders to stop further attacks on the deceased seem to have been relied on in support of a defence of automatism.

19. In all, the deceased was stabbed eight times. He was stabbed in the neck, chest and right leg. He had other wounds that were consistent with him fending off a knife and/or grabbing the knife blade. The neck wounds could not have been fatal although they could have been a contributory cause of death. One of the wounds to the chest extended through the heart and severed the aorta. One medical witness said that this wound would have been fatal and its infliction would have meant that the deceased could no longer struggle with the accused or walk or stagger for any distance. A photograph which showed that the blood from this wound flowed upwards towards the deceased's shoulder supported the conclusion that this wound was inflicted after the deceased had collapsed on the footpath. But two pathologists for the defence said that, notwithstanding the wound, the deceased could have moved at least the distance between the side of his car and the place where he fell. One of these pathologists thought that it was more likely that the wound through the heart had occurred at the side of the car than when the accused was on the ground.

20. The Crown did not accept that the struggle had commenced in the way that the accused claimed. The theory of the Crown case was that the accused had the knife with him when he approached the deceased, that the attack commenced when the deceased was sitting in his car, and that the accused had dragged the deceased out of his car. The presence in the deceased's car of the ignition keys, of blood on the driver's seat and cuts on the deceased's leg and the bending of the driver's side headrest supported this theory. So did the presence of blood on a towel and other places inside the car. The presence of the blood inside the car was quite inconsistent with the accused's case that the deceased was not in his car at any relevant stage. Support for the prosecution theory was also contained in a statement of the accused that "I should not have done it. It's been coming for a while. I have two daughters and this one I have to look after him, give him money to live." The injury to the accused's elbow was also more consistent with a cut from a knife or being struck by the edge of a door than a fall to the roadway. Thus, the jury might well have been satisfied beyond reasonable doubt that there was no provocation on the part of the deceased or, that if there was, the accused had not been pushed to the roadway. The jury might also have found it hard to accept that the accused's "really big knife"(35) had been thrown behind the driver's seat of his car two days before the killing and forgotten about and that in the struggle he had gone backwards and fortuitously noticed it because his car door was open.

21. A majority of the Court of Criminal Appeal (Crockett and Marks JJ) held that provocation could not be relied upon if the fatal wound was inflicted while the deceased was on the footpath. Their Honours said that "no jury could regard the stabbing of the deceased by the (accused) when he was on the ground in a state of collapse as other than wholly disproportionate to what the deceased previously said and did." Ormiston J, however, thought that the issue of provocation should not have been left to the jury at all. His Honour said that the accused's manner and means of retaliation were "quite disproportionate to the slight insults, the rebuff and minor assault which he received from his son-in-law." His Honour said that "although the deceased's conduct was capable of provoking an ordinary person such as the (accused) to some retaliation, it was not ... capable of provoking such a person to retaliation to the degree and method of continuance of violence exhibited by the (accused's) savage knife attack which resulted in the death of his son-in-law".

The trial judge did not err in withdrawing provocation in respect of the stabbings that occurred when the deceased was on the footpath

22. Notwithstanding the very real weaknesses in the accused's case, I think that the issue of provocation should have been left to the jury in respect of the first part of the struggle. But I am unable to accept the conclusion that the provocation of the deceased could be used to reduce murder to manslaughter if the fatal wound was inflicted while the deceased was lying on the footpath.

23. The accused was entitled to have the evidence pointing to provocation considered from the viewpoint that was most favourable to him. The evidence indicated that the deceased had treated Lia badly for many years and that the accused knew of this mistreatment of his daughter. The acts of the deceased two days before the killing - refusing to accompany Lia to the family gathering, demanding money from her to go to Italy, taking household effects which she had purchased and walking out of the marriage - were, no doubt, merely a continuation of a pattern of conduct by the deceased that had gone on for years. But to a person who had a history of depression and who, in the trial judge's words, was "obviously an emotional man when a matter affects his family", these latest acts of the deceased must have been a source of great emotional strain. Against such a background the conduct of the deceased in contemptuously rejecting the overtures of the accused to treat his daughter better might easily cause an ordinary person to lose his or her self-control. When there is added to that the claim that the deceased attempted to kick the accused and caused him to fall and injure himself, the case for concluding that an ordinary person might have attempted to retaliate with the nearest weapon at hand cannot be dismissed as unreasonable. Indeed the learned trial judge and Marks and Crockett JJ in the Court of Criminal Appeal accepted that this was so. That means that it was open to the jury to think that an ordinary person might have retaliated by attempting to stab the deceased while they struggled at the side of his car.

24. That being so, if it had not been for the presence and actions of the bystanders, I would have found it difficult to conclude that the jury could not also find that the loss of control and mode of retaliation of the ordinary person would not continue simply because the deceased had staggered away and fallen to the footpath. In the law of provocation, the ordinary person is not the reasonable person. In the present context, the hypothesis is that the ordinary person was so provoked that he might have retaliated by stabbing the deceased while they struggled by the car. It seems a large step to conclude that that loss of control and the mode of retaliation would not have continued simply because the deceased had retreated some yards to the footpath and collapsed. Once there is evidence of provocative conduct, the evaluation of that conduct and its effect on an ordinary person is almost invariably a question for the jury. A judge who takes the issue away from the jury assumes a grave responsibility(36). In the present case, however, the actions of the bystanders and the interruption to the accused's pursuit of the deceased add a new dimension to the case.

25. It is one thing to conclude that an ordinary person with the accused's background who had been told to "piss off", kicked at, and pushed over might lose self-control to the extent that he or she would grab a knife that was nearby and retaliate with it. But the case for the accused requires the conclusion that a jury could have a reasonable doubt as to whether the provocation would cause an ordinary person to lose self-control to the extent that that person would stab a defenceless person lying unconscious or nearly so on the footpath after:

(1) the initial retaliation had continued by the car for some time during the course of which the deceased had been stabbed several times with considerable bleeding;

(2) the ordinary person had been told during the course of the initial retaliation that the deceased had had enough;

(3) the deceased had managed to break free and stagger some distance to the footpath where he had collapsed as the result of his injuries;

(4) a bystander had thrown a brick or stone at the ordinary person;

(5) a second bystander had thrown a brick at the ordinary person which had hit him in the shoulder area;

(6) a third bystander had got an iron bar to prevent further attacks on the prostrate person;

(7) the ordinary person had at least twice interrupted his pursuit of the deceased to deal with the bystanders;

(8) an appreciable period had elapsed after the deceased had collapsed on the footpath.

26. The central idea of the law of provocation has always been that of a sudden and temporary loss of control that results from the provocative conduct of the deceased. When that loss of control results in an intention to kill or cause grievous bodily harm to the provoker and the intention is accompanied by action that causes the death of that person, the law has been prepared to forego the ultimate penalty for the taking of a human life that is done with the requisite intent. But the doctrine of provocation was never intended as a general licence to kill or wreak havoc. The concept of suddenness negatived any question of premeditation. The concept of temporariness ensured that an intentional killing would be excused as manslaughter only when it was committed while the killer's capacity for self-control had been overwhelmed by the desire for retribution that often arises when an interest or relationship that a person values is harmed or threatened by the conduct of another person(37). The concept of the ordinary person incorporated the notions of suddenness and temporariness and ensured equality of treatment for offenders by insisting that the mode of retaliation be objectively proportionate to the provocation and continue for no longer than the period that would elapse if an ordinary individual had received that provocation. To what extent, if any, and for how long would the ordinary person have lost self-control if he or she had been provoked in the circumstances that confronted the accused are key questions if society is "to maintain objective standards of behaviour for the protection of human life"(38).

27. A jury might reasonably think that the provocation in this case was not trivial. But it was by no means extreme. In my opinion it was not reasonably open to the jury to have a reasonable doubt as to whether the deceased's conduct was "capable of provoking an ordinary person not merely to some retaliation, but to retaliation 'to the degree and method and continuance of violence which produce(d) the death'"(39) of the deceased. No jury in my view could reasonably hold that the alleged provocation of the deceased might cause an ordinary person to lose self-control to the extent and for such a period that that person would plunge a knife into a helpless person at the time and in the circumstances that the accused did.

1 Lee Chun-Chuen v. The Queen (1963) AC 220 at 235; Moffa v. The Queen [1977] HCA 14; (1977) 138 CLR 601 at 617.

2 [1990] HCA 61; (1990) 171 CLR 312.

4 Johnson v. The Queen [1976] HCA 44; (1976) 136 CLR 619 at 639 per Barwick CJ

5 (1942) AC 1 at 9; see also Da Costa v. The Queen [1968] HCA 51; (1968) 118 CLR 186 at 215.

6 See Johnson v. The Queen (1976) 136 CLR at 639, 640, 659.

10 (1963) AC at 230; see also Moffa v. The Queen (1977) 138 CLR at 617.

11 Van Den Hoek v. The Queen [1986] HCA 76; (1986) 161 CLR 158 at 167.

15 Moffa v. The Queen (1977) 138 CLR at 613 per Gibbs J and Stingel v. The Queen (1990) 171 CLR at 325.

17 Johnson v. The Queen [1976] HCA 44; (1976) 136 CLR 619 at 633-634; Stingel v. The Queen [1990] HCA 61; (1990) 171 CLR 312 at 328.

18 Parker v. The Queen [1963] HCA 14; (1963) 111 CLR 610 at 641; Johnson (1976) 136 CLR at 637-638, 658, 666; Stingel (1990) 171 CLR at 325.

19 [1990] HCA 61; (1990) 171 CLR 312 at 325 citing Holmes v. Director of Public Prosecutions (1946) AC 588 at 597.

20 [1976] HCA 44; (1976) 136 CLR 619.

23 Moffa v. The Queen [1977] HCA 14; (1977) 138 CLR 601 at 606; Stingel (1990) 171 CLR at 326.

24 East's Pleas of the Crown, (1803), vol.1 at 239.

25 Yeo, "Power of Self-Control in Provocation and Automatism", [1992] SydLawRw 1; (1992) 14 Sydney Law Review 3 at 6.

30 Fisse, Howard's Criminal Law, 5th ed. (1990) at 89; Yeo, op cit at 8.

31 In Reg. v. Jeffrey [1967] VicRp 51; (1967) VR 467 at 478, Sir John Barry described the ordinary person as "a mythical person".

34 Kwaku Mensah v. The King (1946) AC 83 at 93: "the ordinary West African villager"; Moffa (1977) 138 CLR at 606: "an ordinary man of his ethnic derivation"; Saliba v. The Queen (1986) 10 Crim LJ 420 at 421: "the same social and ethnic background as the accused".

36 Packett v. The King [1937] HCA 53; (1937) 58 CLR 190 at 220.

37 cf. Posner, The Federal Courts: Crisis and Reform, (1985) at 5-6: "Part of our biological inheritance is the sense of indignation, and its complement the desire for retribution (by violent means if necessary), that is aroused when someone invades an interest that we value highly".