Where a trial judge misdirects the jury by applying the wrong version of a statutory defence (here, the 2017 amended provocation defence to a pre-amendment offence), and the misdirection is apt to have prevented the jury from considering the defence at all, the proviso cannot be applied because doing so would substitute trial by appeal court for trial by jury. The case also provides obiter guidance on how the amended s 304 (unwanted sexual advance provocation) should be directed upon.
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