When directing a jury on provocation under s 304 of the Criminal Code 1899 (Qld), a trial judge must not direct the jury that they must be positively satisfied of the truth of evidence supporting provocation before considering it; the onus lies on the prosecution to disprove provocation beyond reasonable doubt, and it is sufficient if the jury considers the evidence may be true. Directions requiring the jury to engage in 'fact finding' in relation to provocation are apt to mislead the jury as to the prosecution's burden. The standard Burns v The Queen direction regarding confessions or admissions is inapplicable to evidence of provocative conduct by the deceased.
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