If the issue of provocation arises on the evidence it must be left to the jury even if the defence counsel does not wish it raised: Van Den Hoek v The Queen (1986) 161 CLR 158. It can be raised at committal: Kolalich v DPP (1991) 173 CLR 222, 57 A Crim R 237, 66 ALJR 25.

An act that otherwise would be murder will be reduced to manslaughter if there is ‘extreme provocation’, which is defined as

  • the act of the accused causing death was in respone to conduct of the deceased towards or affecting the accused;
  • the conduct of the deceased constituted a serious indictable offence
  • the conduct of the deceased was such that it could have induced an ordinary person in the position of the accused to have so far lost self control as to form an intention to kill or inflict gbh (s. 23(2) Crimes Act).
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