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- Title
NORMATIVITY AND THE ORDINARY PERSON FORMULA: COMPARING PROVOCATION AND DURESS IN AUSTRALIA.
- Authors
NISBET, TOBY; LARSEN, ANN-CLAIRE
- Abstract
This article revisits the formulation of the 'ordinary person' test, the long-established normative test in criminal law in Australia. The 'ordinary person' test, where it applies, sets an 'objective' and uniform standard or legal norm: would (or might) an ordinary person have done the illegal act when confronted with similar circumstances as the accused? Although much debate has ensued as to who the 'ordinary person' is in Australia, in this article, we explore from a normative perspective, the possibility of reworking the test to achieve uniformity across two defences. We argue that although the justification for the defences of provocation and duress differ, constructing a minimum objective standard for the ordinary person test would promote law's principle values such as fairness, impartiality, and predictability. The purpose of this article is thus to add a further voice lamenting the divergence in approaches to the ordinary person formula and arguing that normativity is given priority over other necessary considerations such as equality, human relations, or community protection.
- Subjects
NORMATIVITY (Ethics); PROVOCATION (Behavior); DURESS (Law)
- Publication
University of Western Australia Law Review, 2019, Vol 45, Issue 2, p249
- ISSN
0042-0328
- Publication type
Article