A trial judge must leave provocation to the jury where it is reasonably open on the evidence, even where defence counsel has expressly disclaimed the defence. The ferocity of an attack on the deceased is itself evidence from which a jury may infer loss of self-control. Where the accused was the initial aggressor but a significant period of time elapsed before the deceased's retaliatory conduct, the jury may find the deceased's conduct constitutes fresh provocation. The question whether self-induced provocation is capable of constituting a defence to murder remains open in Victoria.
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