(Antigua and Barbuda) The appellant had been convicted of murder, with his defence of self-defence rejected by the jury. His defence was self-defence. No defence of provocation was advanced at trial and the trial judge gave no direction to the jury on provocation. It was accepted that there was some evidence of provocation, but this had not been left for the jury. On appeal, the court had said that this should have been left for the jury, but would also have been rejected. Statute in Antigua required evidence of provocation, once raised to be left to the jury. In the circumstances the appeal court had been wrong to pre-empt what the jury might have decided. A conviction of manslaughter was substituted, and the matter was remitted for sentence on that basis. The clear effect of s9C was to deny to trial judges the power previously exercisable to withdraw the issue of provocation from the jury where there is evidence potentially capable of satisfying the subjective condition, even if the judge considers that there is no evidence which could lead a reasonable jury to conclude that the provocation was enough to make a reasonable man do as the particular defendant did. As to the application of the proviso allowing a conviction to stand despite a misdirection: ‘The Board would accept that there will be cases where the proviso may properly be applied even where the objective issue should have been but was not left to the jury.’
Lord Bingham: ‘In the opinion of the Board, the reasoning of the Court of Appeal in R v Cox, above, does not give adequate weight to the intention of Parliament expressed in section 3 of the 1957 Act and its overseas equivalents. The starting point must always be that in a trial on indictment the jury is the body to which the all-important decisions on the guilt of the accused are entrusted. This does not mean that every deviation from procedural regularity and legal correctness vitiates a jury’s verdict of guilty. That would impose an unattainable standard of perfection and frustrate to an unacceptable extent the effective administration of criminal justice. But it does mean that an appellate court, which is not the trial tribunal, should be very cautious in drawing inferences or making findings about how the jury would have resolved issues which, for whatever reason, were never before it. This is particularly so in the context of section 3, since Parliament has gone out of its way, unusually, to stipulate that resolution of the objective issue, where it properly arises, should be exclusively reserved to the jury. To the extent that an appellate court takes it upon itself to decide that issue it is doing what Parliament has said the jury should do, and section 3 cannot be read as applying only to the trial court. ‘
Lord Bingham of Cornhill
Times 11-Oct-2001, [2001] UKPC 38, Appeal No 70 of 2000
PC, Bailii, PC, PC
Citing:
Cited – Regina v Duffy CCA 1949
The court approved Devlin J’s direction to the jury on the defence of provocation to a charge of murder which had described provocation: ‘Provocation is some act or series of acts done or words spoken by the dead man to the accused which would cause . .
Cited by:
Cited – Van Dongen and Another, Regina v CACD 5-Jul-2005
The defendant brothers appealed convictions for murder. They had pleaded self defence. The injuries on the deceased suggested a substantial number of wounds were inflicted when he was in a curled up defensive post.
Held: The provocation . .
Cited – Serrano, Regina v CACD 1-Dec-2006
The defendant had been convicted of murder in 1972. He now appealed on a reference by the Criminal Cases Review Commission questioning the failure of the judge to direct on provocation. He had killed a girl after they tried but failed to have . .
Lists of cited by and citing cases may be incomplete.
Crime, Commonwealth
Updated: 13 December 2021; Ref: scu.163306
