Stingel

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Citation: Stingel (1990) 171 CLR 312.

This information can be found in the Textbook: Brown et al, Criminal Laws: Materials and Commentary on Criminal Law and Process in New South Wales, (5th edition, Federation Press, 2011), pp. 578-584.

Contents

Background facts

  • Stingel found his former girlfriend, with whom he was still obsessed, engaging in sexual activities in a car with a man (Taylor).
  • When Stingel interrupted them by opening the car door, Taylor said “piss off you cunt, piss off.”
  • Stingel retrieved a butcher’s knife from his car and stabbed Taylor to death.

Legal issues

  • Provocation Defence - The Objective Test
    • To what extent should the personal characteristics of the accused, such as his infatuation with his former girlfriend, be taken into account in the ordinary person test?

Judgement

  • The objective test for provocation is a two stage test:
    1. Assess gravity/degree of provocation the defendant faced.
      • In assessing this, attributes of the accused may be taken into account, since that is putting the provocative insult into context and thus does not undermine the 'objective' test. This includes 'age, sex, race, physical features, personal attributes, personal relationships and past history may be relevant... even mental instability or weakness'.
    2. Asses the response of the ordinary person to that degree of provocation (would an ordinary person lose self control in the face of that degree of provocation).
      • This test doesn't include any personal characteristics of the defendant bar age, because everyone goes through aging and its thus an ordinary process.

Totality of Conduct

  • Relying on Moffa[1] - in applying the first limb of objective test, the 'totality of the conduct' is examined (past/background events as well). This is because acts or words when taken separately may not amount to sufficient provocation but when taken in combination or because of their accumulation, may be enough.

Context

  • The objective test is framed in a contemporary concept (ie, take into account values and attitudes) because it affects the ordinary person.

'Ordinary' v 'Reasonable' Person

  • The test is is of an 'ordinary man', and not a 'reasonable man' as in torts.

Rationale of the Objective Test

  • Quoting Wilson J in Hill that the rationale of the test as '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'.[2]

References

  1. (1977) 16 SASR 309, at 313.
  2. (1986) 25 CCC (3d) 322, 344.
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