R v GEORGOS GEORGATSOULIS Nos. SCCRM 94/118 and SCCRM 94/150 Judgment No. 4580 Number of pages - 13 Criminal law and procedure - evidence - [1994] SASC 4580 - SASC 1994 case summary

R v GEORGOS GEORGATSOULIS Nos. SCCRM 94/118 and SCCRM 94/150 Judgment No. 4580 Number of pages - 13 Criminal law and procedure - evidence - [1994] SASC 4580 - SASC 1994 case summary — Zoe

[15]

The law relating to provocation was examined by the High Court in Stingel v The Queen [1990] HCA 61; (1990) 171 CLR 312. The Court was considering the provisions of s.160 of the Criminal Code of Tasmania and in particular the words "of such a nature as to be sufficient to deprive an ordinary person of the power of self-control". The Court pointed out, however, at page 327 that, "The function of the ordinary person of s.160 is the same as that of the ordinary person of the common law of provocation". The discussion in the judgment of the law of provocation is applicable to the common law. The Court made a clear distinction between two tasks involved in applying the objective test. The first task is to assess the gravity of the insult or affront to the particular accused. The second task is to determine whether the insult or affront of that degree of gravity to the particular accused might be sufficient to deprive an ordinary person of the power of self-control. As to the task of assessing the degree of the gravity of the insult or affront to the particular accused, the Court said at p.326: "Even more important, the content and extent of the provocative conduct must be assessed from the viewpoint of the particular accused. Were it otherwise, it would be quite impossible to identify the gravity of the particular provocation. In that regard, none of the attributes or characteristics of a particular accused will be necessarily irrelevant to an assessment of the content and extent of the provocation involved in the relevant conduct. For example, any one or more of the accused's age, sex, race, physical features, personal attributes, personal relationships and past history may be relevant to an objective assessment of the gravity of a particular wrongful act or insult. Indeed, even mental instability or weakness of an accused could, in some circumstances, itself be a relevant consideration to be taken into account in the determination of the content and implications of particular conduct. For

[23]

As to the third condition, the objective test, His Honor directed the jury as follows: "The third consideration is whether the things said or done by Lisa Mazzone were of such a character as might cause an ordinary person to lose his or her self-control to such an extent as to act as Mr Georgatsoulis acted. Here you are no longer looking so much at him as opposed to an ordinary person of his age and his background. You look at a hypothetical person, if you like, of the age and of the sex of the accused. Not as Mr Jennings told you a man who is unduly quick to anger or to hate. Given the accused's cultural background you may allow in your hypothetical, ordinary man an attitude towards women which would not be ordinarily accepted by most people in the community. But it must be an ordinary man with normal powers of self-control. So that you take as your standard or ordinary person, as your hypothetical person, one with the general characteristics of the accused, himself. Such as his age, sex and outlook on life including outlook towards the opposite sex to the extent that those matters might have affected the conduct of the ordinary person in the circumstances in which the accused found himself on that day. But you exclude any extraordinary excitability or tendency to violence which you might think that this accused has and must exclude also any question of liquor. You look at an ordinary person, unaffected by liquor, but with the essential characteristics of the accused other than those which I have indicated should be excluded. You then put that ordinary person in the context in which the accused found himself when he stood up in the kitchen of the diner that day. Allow for the background of the things that had happened between those two people during the two or three months they had known each other and ask yourself the question whether it is reasonably possible that an ordinary person of that kind in that situation and with that background would have reacted by losing their self-control to the extent that the accused did. That is, by doing what the accused did. Or could possibly have reacted in that way."

[26]

The jury returned later and asked to have the law's definition of an ordinary person. His Honor then gave a further explanation: "Who is an ordinary person. It is a hypothetical person which the law asks you to bear in mind only for the purposes of this third consideration to do with provocation. I put it to you yesterday that it was some sort of yardstick, because the doctrine of provocation does have its limits and we try to define the limit by saying that even if you are satisfied that the accused has had a sudden and temporary loss of self-control, the deed won't be excused by reference to the concept of provocation unless an ordinary person, as defined, standing in his shoes, at the time, would have lost, or could possibly have lost their self-control, and in a way and to an extent that they would have been provoked into doing what the accused did. That ordinary person, as I say, a hypothetical person, is one from whom we exclude any excessive features that might appear in the character or make up of the accused. The ordinary person cannot be one who is prone to over excitability, or prone to excessive violence. If the accused has any of those attributes you rule them out when you create your hypothetical person, so it has got to be a person with normal responses, not extreme or exaggerated responses, such as an over tendency to violence, or excitability, and it's got to be a person with ordinary powers of self-control. It has to be though somebody of the age of the accused, and their general make up. Not the excessive or exaggerated features they may have, but the age and the sex. It must be a man. We endow that hypothetical character also with the background which has been experienced. We put them down in the full setting. We put that hypothetical person down in the full setting. We allow for the background. We allow for what happened immediately. So the context of it is, if you like, the same, so the question then becomes whether the - I used the expression reasonable man, ordinary man is really what I wanted to say - the hypothetical ordinary man, of about the age of the accused and about his sex, with his cultural background. You have heard me say it, I suppose we should allow for perhaps a different attitude towards women for many people in the community because of a cultural background, but not with any of the excessive features that might be thought to apply to the accused. If you saw it that way, not over excitable, not prone to violence, and somebody with ordinary powers of self-control and, given the background, someone who has experienced both the background and the context going back over a few months, and who has experienced the immediate situation in which it all flared up, would such an ordinary person, or could such an ordinary person possibly react in the way that the accused reacted? That's what you have got to ask yourselves, and in reaching that view the only one thing I haven't mentioned yet, which I mention again: He has got to be sober. The ordinary man has to be a sober man and you exclude any possible effects of alcohol."

R v GEORGOS GEORGATSOULIS Nos. SCCRM 94/118 and SCCRM 94/150 Judgment No. 4580 Number of pages - 13 Criminal law and procedure - evidence

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Judgment (46 paragraphs)

R v GEORGOS GEORGATSOULIS Nos. SCCRM 94/118 and SCCRM 94/150 Judgment No. 4580 Number of pages - 13 Criminal law and procedure - evidence (1994) 62 SASR 351 [1994] SASC 4580 (9 June 1994)

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Cases Cited (8)