When directing a jury on provocation where the accused is of a particular ethnic or cultural background, the accused's ethnicity must be brought to the jury's attention as relevant to assessing the gravity of the provocative conduct for the purposes of the objective test, not merely the subjective test. A chart or document given to the jury that confines ethnicity to the subjective test is positively misleading. The correct formulation of the objective test uses 'could' or 'might', not 'would'. Where provocative conduct emanates from a person other than the victim, the concepts of 'acting in concert' and 'aiding and abetting' should generally be avoided in favour of the concept of participation, adoption, or association by the victim in the provocative conduct.
The full text is available to signed-in members, including the 6 later cases that cite this judgment.