The use of the word 'expected' in conjunction with 'could' in provocation directions under s 23(2)(b) of the Crimes Act 1900 (NSW) does not elevate the test from possibility to probability, provided the word 'could' is consistently maintained. Standard consciousness of guilt directions requiring the evidence to relate to the crime charged (murder) rather than 'some crime or other' remain appropriate even where the only live issue is provocation, because provocation only becomes relevant after the jury is satisfied that murder is otherwise proved. However, the dissent raises a substantial question about whether such directions are misleading where the accused cannot be expected to appreciate the legal distinction between murder and manslaughter.
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