The purely objective test in s 23(2)(d) Crimes Act 1900 (NSW) does not permit attribution to the ordinary person of any personal characteristics of the accused, including diagnosed mental disorders, vulnerability to overreact, or personal sensitivity to the provocation. The same conduct of the deceased must satisfy all four elements of s 23(2). Intimate partner homicide motivated by relationship separation or infidelity alone cannot ground the partial defence because such conduct is not capable of constituting a serious indictable offence under s 23(2)(b). The question left open is whether the partial defence of extreme provocation can succeed in any case involving domestic violence where the accused initiated the physical altercation.
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