Whether the act causing death occurred 'during or immediately after' the commission of the foundational offence for felony murder under s 18(1)(a) Crimes Act 1900 (NSW) is a question of fact and degree for the jury, not a question of law for the trial judge. The phrase has both a temporal and contextual component, and the whole of the circumstances must be considered. Where a trial judge erroneously removes this question from the jury, the proviso may still apply if the appellate court is satisfied beyond reasonable doubt of guilt on the whole record. The removal of an element of the offence from the jury does not constitute a class of error that precludes the proviso's application, though it makes it harder for the Crown to satisfy the proviso.
The full text is available to signed-in members, including the 4 later cases that cite this judgment.
2 of the 4 citing cases carry a classified treatment. How each court treated it is available to signed-in members.