Where the defendant bears the onus of proving provocation on the balance of probabilities under s 304 of the Criminal Code (Qld), the test for whether a trial judge must leave provocation to the jury is whether, on the version of events most favourable to the accused suggested by the evidence, a jury acting reasonably might be persuaded on the balance of probabilities that the killing was provoked. This is a higher threshold than the test applicable where the Crown bears the onus of disproving provocation. The duty to leave provocation to the jury regardless of defence counsel's position survives the 2011 onus change, but the origin of the obligation is the integrity of the decision-making process, not fairness to the accused.
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