The Court held that the partial defence of extreme provocation under s 23 Crimes Act 1900 (NSW) should be left to the jury even where the accused's act may have been motivated by a combination of conduct constituting a serious indictable offence ('category A' — here, intimidation under s 13 Crimes (Domestic and Personal Violence) Act 2007) and conduct not meeting that threshold ('category B' — infidelity, financial disputes, drug supply to a child). The availability of an inference that the accused acted wholly in response to non-qualifying conduct does not exclude the competing inference that the act was in response to qualifying conduct; that is a question of competing inferences for the jury. The evidentiary onus on the accused can be satisfied entirely from evidence in the Crown case, and the trial judge should adopt a liberal approach tilting in favour of leaving the defence.
The full text is available to signed-in members.