Burnett v The State of Trinidad and Tobago (Trinidad and Tobago)

On a murder charge, provocation must be left to the jury where the evidence discloses a reasonable possibility of provoking conduct causing loss of self-control. The possibility need not be proved by the defendant’s own evidence and must not be treated as speculative merely because that evidence presents a different account. A trial judge must not decide disputed credibility or draw contested inferences that belong to the jury. Where the evidence permits the jury to conclude that the defendant responded disproportionately to provocation, it may infer loss of self-control even if the defendant asserts that he acted deliberately and in self-defence.

A police officer was convicted of murdering two men after shooting them during an altercation at a large public event. He maintained that he had acted in self-defence against men armed with knives. The trial judge refused to leave provocation to the jury, finding no evidence of loss of self-control, and the Court of Appeal of the Republic of Trinidad and Tobago upheld that ruling. The Board granted leave and, having announced that it would allow the appeal and remit the case, considered whether the evidence disclosed a reasonable possibility that provoking conduct had caused the appellant to lose his self-control.

1. Appeal allowed and case remitted. The Board held that the trial judge erred in refusing to leave provocation to the jury, and that the Court of Appeal erred in upholding that decision.
2. Provocation comprises provoking conduct, causatively relevant loss of self-control, and the objective question whether the provocation was enough to make a reasonable person do as the defendant did. Under Offences against the Persons Act, s 4B, the issue must be left to the jury where there is evidence on which a reasonable possibility of the necessary elements arises.
3. The evidence accepted by the Court of Appeal established provoking conduct. The remaining question was whether the possibility that this conduct caused loss of self-control was reasonable rather than merely speculative. The trial judge and Court of Appeal wrongly resolved that question by accepting parts of the appellant’s evidence that portrayed his response as measured and controlled.
4. Credibility, reliability and the proper inferences from the evidence as a whole were matters for the jury. It was open to the jury to reject the appellant’s account, to find that he acted in self-defence but used disproportionate force, or to infer that provocation caused loss of self-control despite his evidence that he had acted deliberately. The possibility of loss of self-control was at least as reasonable as the possibility that he had acted in a measured way.
5. The Board did not consider the appellant’s other grounds of appeal, because its conclusion on provocation was sufficient. The case was remitted to the Court of Appeal.

• Privy Council: Appeal allowed and case remitted to the Court of Appeal.
• Court of Appeal of the Republic of Trinidad and Tobago: Appeal against the murder conviction dismissed on 19 July 2007.
• Trial court: The appellant was convicted of murder and sentenced to death after trial before Brook J and a jury.