Tabeel Lewis v The State (Trinidad and Tobago)

Under section 4B of the Offences Against the Person Act, provocation must be left to the jury where evidence could support a finding that the defendant was provoked into losing self-control. Provoking conduct and loss of self-control are closely connected aspects of the first, subjective limb. Loss of self-control may be inferred from the circumstances despite the defendant’s account or denial. The sufficiency of the evidence is a fact-sensitive judgment for the trial judge. In borderline cases, a direction is prudent, especially where requested, but speculative evidence does not require one. Probative evidence of mental abnormality is admissible. The matter was remitted because fresh expert evidence could affect the issue and had not been tested by the respondent.

The appellant was convicted of murdering Dayah Ramsook after a nine-day trial before Mohammed J and a jury at the San Fernando Assizes. He was sentenced to death. The Court of Appeal of Trinidad and Tobago dismissed his appeal, which had concerned the directions on jury disagreement.

Before the Privy Council, the sole issue was whether the trial judge should have left the partial defence of provocation under section 4B of the Offences Against the Person Act to the jury. The appellant also sought to adduce fresh evidence from a clinical psychologist and a forensic psychiatrist concerning his loss of self-control and mental characteristics.

1. Disposition. On the trial evidence alone, the Board would have been disposed to dismiss the appeal. Fresh expert evidence could materially affect whether there was a triable issue of provocation. The matter was therefore remitted to the Court of Appeal of Trinidad and Tobago.
2. Provocation threshold. Section 4B of the Offences Against the Person Act was identical to section 3 of the Homicide Act 1957. The first limb required evidence on which the jury could find that the defendant was provoked into losing self-control. The evidence of provoking conduct and loss of self-control should be considered as one composite issue. The objective questions concerned the gravity of the provocation and whether it was enough to make a reasonable person do as the defendant did.
3. Assessment of evidence. The Board applied the approach in R v Acott [1997] 1 WLR 306 and R v van Dongen (Anthony Gerrard) [2005] EWCA Crim 1728. A speculative possibility of provocation was insufficient, while the judge had to avoid deciding the objective issue reserved for the jury. Loss of self-control could be inferred from the circumstances. Under Lee Chun-Chuen v The Queen [1963] AC 220, an accused’s denial or detailed recollection did not prevent such an inference. The trial judge was generally better placed to assess the quality and effect of the evidence than an appellate court, as recognised in R v Miao [2003] EWCA Crim 3486.
4. Fresh evidence. Following Attorney General for Jersey v Holley, Appeal [2005] UKPC 23, [2005] 2 AC 580, all evidence probative of whether the defendant lost self-control was potentially admissible, including evidence of mental or other abnormality. The respondent had not had a proper opportunity to test the reports, challenge admissibility or adduce contrary evidence. The Court of Appeal was directed to consider those matters and whether the fresh evidence disclosed a case fit for consideration by the jury.
5. Proviso. No question arose as to the proviso because, without the fresh evidence, the appeal would have been dismissed without reliance on it.

• Privy Council. The Board remitted the matter to the Court of Appeal of Trinidad and Tobago to consider the fresh evidence and its effect on the provocation issue.
• Court of Appeal of Trinidad and Tobago. On 10 May 2007, the court dismissed the appellant’s appeal against conviction.
• San Fernando Assizes. On 29 March 2006, Mohammed J and a jury convicted the appellant of murder and imposed the mandatory death sentence.