When assessing whether to leave provocation to the jury, the trial judge must consider the version of events most favourable to the accused drawn from all the evidence (including Crown evidence), and must not place excessive weight on a record of interview that may not represent the most favourable version. The gravity of allegedly provocative conduct must be assessed by reference to the accused's ethnicity and cultural background, as required by Masciantonio. The broad proposition in R v Borthwick that provocation induced by the accused's own provocative action is inoperative in law is doubted. The question whether conduct that risks or causes a victim to act provocatively precludes the defence of provocation remains open.
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