When directing a jury on provocation under s 23(2)(b) of the Crimes Act 1900 (NSW), the trial judge must use the statutory language 'could have induced' rather than 'would cause' when describing the ordinary person test, as the latter imposes a more stringent standard. Oral directions given in response to jury questions that depart from the statutory language will not be cured by earlier correct written directions, particularly where the oral directions also suggest the burden of proof lies on the accused rather than the Crown under s 23(4).
The full text is available to signed-in members, including the 2 later cases that cite this judgment.
1 of the 2 citing cases carry a classified treatment. How each court treated it is available to signed-in members.