Where the provocative conduct relied upon by the defence is not itself an act to end or change the domestic relationship, the trial judge must direct the jury to determine as a question of fact whether the sudden provocation was 'based on' something done by the deceased to end or change the relationship under s 304(3)(c) of the Criminal Code (Qld). Failure to do so, and instead directing the jury to assume s 304(3) is engaged, constitutes a misdirection resulting in a miscarriage of justice. The burden of proving that s 304(3) is not engaged (or that circumstances are of a most extreme and exceptional character) rests on the defence under s 304(7).
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