Mr. Abergel, this is the second time I've heard concerns over the non-exhaustive permissive list in subclause 34(2), where advocates and barristers have been concerned about how that might be interpreted. I wasn't convinced last time that it's improperly drafted, but maybe you'll have a better chance at me.
In your opening you talked about jury instructions and that all the factors in subclause 34(2) really come down to gravity and immediacy. But do you not agree that if you removed paragraphs (a) to (h) and only had the words “gravity” and “immediacy”, it would provide a jury with absolutely no benchmarks to measure a defendant's conduct against?