For provocation under s 281 of the Criminal Code (WA), the provocative conduct must be something done to, or at least in the presence of, the accused; evidence of the deceased's conduct on prior occasions not in the accused's presence is not admissible as provocation itself, though it may be relevant to the ordinary person test. Anger alone is not provocation and does not require a separate direction. The DPP cannot claim legal professional privilege in correspondence between the accused's own counsel and the DPP as against the accused.
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