Masciantonio V. R Summary

In McHugh J’s dissenting judgment in Masciantonio v R he argues that the characteristics of an ordinary person of the same age, race, culture and background as the accused should be implemented when applying the law of provocation preventing the likelihood of discrimination and injustice. Further, he goes on in saying that in a multicultural society such as Australia, the notion of an ordinary person is pure fiction and that cases heard by juries of predominantly Anglo-Saxon-Celtic origin would almost certainly result in the accused being judged by the standard of self-control of a middle class Australian of Anglo-Saxon-Celtic heritage. We explore the law of provocation and the requirements (tests) to satisfy the partial defence, changes to the tests over time and the difficulties that arise from the lack of understanding from the Australian Anglo-Saxon-Celtic origin judiciary, the standard of an ordinary person in Australia and difficulties of applying and also omitting the subjective characteristics of the accused.
Firstly, for a murder charge to be reduced to manslaughter provocation must be established, whereby the accused is found to be sufficiently provoked by his victim (deceased). The partial defence of provocation will succeed if the both …show more content…
Nonetheless, to reduce the criticism of such inference one would have to agree that characteristics of an ordinary person of the same age, race, culture and background as the accused should also be implemented to a degree, the process of randomly selecting jurors, ensuring diversity, should also reduce this scrutiny of the judiciary in Australia amongst the