Normativity and the ordinary person formula: Comparing provocation and duress in Australia
University of Western Australia Law Review
University of Western Australia
School of Business and Law / School of Arts and Humanities
This article revisitsthe formulation of the ‘ordinary person’test, the long-established normativetest in criminal law in Australia. The ‘ordinary person’test,where itapplies, setsan ‘objective’ anduniform standard or legal norm: would (or might)anordinary person have done the illegal act when confronted with similarcircumstances as the accused?Althoughmuch debate has ensued as to whothe ‘ordinary person’ is in Australia, in this article, we explore from a normativeperspective, the possibility of reworking the test toachieve uniformity across twodefences. 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 valuessuch asfairness, 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 normativityisgiven priority over other necessary considerations such as equality, human relations, or community protection.
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