Richard Anthony Daniel v The State

Provocation remains a two-stage enquiry into actual loss of self-control caused by provocative conduct and the objective reasonableness of the reaction. There is no separate rule excluding provocation merely because the accused helped to generate the provocative conduct. That conduct is relevant to both stages and ordinarily remains for the jury.

Where the only basis of murder is the statutory felony/murder rule, provocation has no application because death caused in the course or furtherance of the violent offence is murder irrespective of intention. The judge must decide whether the evidence raises an issue, but must leave provocation if a properly directed jury could reasonably find manslaughter. The contrary obiter approach in DPP v Camplin was not to be followed.

The appellant was convicted of murder in Trinidad and Tobago after the trial judge left murder to the jury on alternative bases: murderous intent and killing in the course or furtherance of a violent arrestable offence under section 2A of the Criminal Law Act 1979. Provocation was not left to the jury.

The Court of Appeal upheld the conviction. It held that provocation was unavailable because the appellant had induced the alleged provocative conduct and because provocation could not apply to felony/murder. Before the Privy Council, the central questions were whether the evidence raised loss of self-control, whether self-induced provocation was a rule of law, whether provocation could apply to felony/murder, and what role the judge had in deciding whether provocation arose.

1. Conviction. The appeal against conviction was dismissed. Although the appellant’s statements provided some evidence of provocative conduct, there was no evidence that he had lost self-control. His account described a struggle and firing, not loss of control, and the eyewitness evidence described a deliberate and controlled sequence. Anger or struggle does not necessarily establish loss of self-control.
2. Self-induced provocation. There is no absolute rule that an accused cannot rely on provocation because he generated the provocative behaviour. The approach suggested in Edwards v The Queen [1973] AC 648 was fact-sensitive and should not justify withdrawing provocation as a matter of law. The accused’s conduct is relevant to both the subjective question whether he lost control and killed as a result of the provocation, and the objective question whether a reasonable person might have reacted similarly. Whether the reaction was predictable is ordinarily for the jury.
3. Felony/murder. If the killing occurred in the course or furtherance of the antecedent violent offence, the statutory felony/murder rule made it murder without more. Provocation could not reduce that offence to manslaughter. If independent provocation or a disproportionate response by the victim caused the roles to reverse, the killing might cease to be in the course or furtherance of the antecedent offence; the issue would then be whether felony/murder had been proved.
4. Judicial gatekeeping. The judge decides whether, taking the evidence at its most favourable to the defendant, an issue of provocation arises. Provocation must be left if a properly directed jury could reasonably find it, even if it is not the defendant’s primary case and even if the judge considers the answer obvious. But the judge may withdraw it where no properly directed jury could find manslaughter on that ground. The contrary obiter observation in DPP v Camplin [1978] AC 705 should no longer be followed.
5. Sentence. The mandatory death sentence was unconstitutional and was quashed. The appeal against sentence was allowed and the case remitted to the Court of Appeal for imposition of the appropriate sentence. The appellant was to remain in custody meanwhile.

• Privy Council: The appeal against conviction was dismissed. The appeal against sentence was allowed, the mandatory death sentence was quashed, and the case was remitted to the Court of Appeal for imposition of the appropriate sentence.
• Court of Appeal of the Republic of Trinidad and Tobago: The conviction was upheld. The court held that provocation was unavailable because the appellant had induced the provocative conduct and because provocation had no place in felony/murder.
• Trial court: The trial judge left murder to the jury on alternative bases of murderous intent and killing in the course or furtherance of a violent arrestable offence, but did not leave provocation.