The Judicial Committee of the Privy Council Decisions

Privy Council Appeal No. 6 of 1996

 

Robert Sheldon Culmer Appellant

v.

The Queen Respondent

 

FROM

 

THE COURT OF APPEAL OF THE

COMMONWEALTH OF THE BAHAMAS

 

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JUDGMENT OF THE LORDS OF THE JUDICIAL

COMMITTEE OF THE PRIVY COUNCIL,

Delivered the 29th July 1997

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Present at the hearing:-

Lord Nicholls of Birkenhead

Lord Jauncey of Tulllichettle

Lord Steyn

Lord Hoffmann

Lord Hutton

              ·[Delivered by Lord Nicholls of Birkenhead and Lord Steyn]

 

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1. Until 1959 the Penal Code of The Bahamas allowed the partial defence of provocation to a charge of murder to be raised only in severely limited circumstances.  Words by themselves were regarded as incapable of constituting provocation: section 322.  The law was that provocation offered by a third party could never reduce murder to manslaughter: section 320(1).  Even if the defendant was in truth provoked to lose his self-control, the judge was entitled on the basis of rules of law to withdraw the case from the jury: section 322.  For example, if the judge took the view that there had been a sufficient "cooling off" period or that the weapon used by the defendant was disproportionate, he was entitled and obliged to withdraw the defence of provocation from the jury: section 322(1)(c) and (d).  Moreover, section 320 provided that there will be a reduction from murder to manslaughter only:- "... if any of the following matters of extenuation are proved on his behalf, namely - (1) that he was deprived of the power of self-control by such extreme provocation given by the other person as is mentioned in section 321."

 

2. The words "as is mentioned in section 321", read with four extreme classes of provocation (e.g. adultery committed in the view of the accused) in section 321, did not allow the defence of provocation in circumstances outside the four specific cases.  The words "matters of extenuation ... proved on his (the accused's) behalf" lie at the heart of this appeal.  Frequently, evidence of a loss of self-control as a result of a provoking event emerges as part of the prosecution case.  Such matters cannot be said to be "proved on his behalf".  Section 320 contemplated that the defendant must produce some evidence of provocation.  Lastly, and most importantly, section 320 placed the burden of proving provocation on the defendant.  These features of the Penal Code were based on common law principles dating from Victorian times and reflected the ideas of harsher times.

 

3. By 1959 it was obvious that the provisions of the Penal Code of The Bahamas required modernising.  A drastic revision of the relevant sections of the Penal Code would have been a complex legislative task.  Fortunately, there was at hand the recently enacted measure which radically reformed the English law of provocation.  That was section 3 of the Homicide Act 1957.  By the Homicide (Special Defences) Act of 1959 a provision based word for word on section 3 of the English Act of 1957 was enacted.  The Act of 1959 expressly provided that there would be an additional defence of provocation under the new provision.  But the old sections of the Penal Code were left unrepealed and unaltered.

 

4. The new additional defence of provocation was inconsistent with much of the old law contained in the Penal Code.  The inconsistency between the new provision and the old law must in general terms have been plain to the legislature in 1959.  Why then was the curious drafting technique adopted of leaving in place inconsistent statutory provisions?  Their Lordships are satisfied that on a realistic appraisal the curiosity disappears.  Rather than embark on a complex exercise of rationalising the Penal Code the legislature took the simple course of enacting the new reforming  measure  while  leaving  the old sections in place, leaving it to the court to decide what parts of the old law were as a matter of construction devoid of effect since 1959.  This is a legislative technique that has been adopted on other occasions.  The approach, in order to get legislative business done, is to say "We know we are not spelling out all the implications.  We will leave this to the court to work out".  And it is not essentially different from the technique sometimes used in the drafting of commercial contracts of saying "We will not try to solve this problem; we will leave it to the decision of a neutral judge; and we will conclude the transaction".  In any event, reverting to the present case, the legislature enacted a new provision on provocation which on any objective view was plainly in a number of respects in conflict with the old law of provocation.  The legislature must be presumed to have acted in the expectation that the courts would resolve the difficulty.  The approach to be adopted in such a case was well stated by the House of Lords in Institute of Patent Agents v. Lockwood [1894] AC 347.  Lord Herschell, L.C., said (at page 360):-

"... there is a conflict sometimes between two sections to be found in the same Act.  You have to try and reconcile them as best you may.  If you cannot, you have to determine which is the leading provision and which the subordinate provision, and which must give way to the other."

 

5. A similar question will have to be considered in the present case.

 

6. Against this background their Lordships are now confronted with an appeal in which the Crown submitted that, notwithstanding the reform of 1959, the burden still rests on the defendant to prove a defence of provocation.  The Crown submitted that in the light of the decision of the Privy Council in Vasquez v. The Queen [1994] 1 W.L.R. 1304, given in respect of similar provisions of the Criminal Code of Belize, no other conclusion is as a matter of precedent open in this case.  The Crown further argued that substantively the old sections still prevail according to their original meaning.  If the Crown's submissions are well founded, they must prevail.  That would mean that in respect of the burden of proof, as well as the substantive rules of provocation, The Bahamas would be the only country in the Caribbean in which the reform of the law of provocation  has  achieved very little.  That would be a great set back for the administration of justice in The Bahamas.  It would be an unjust result.  And it would complicate the task of judges.  In these circumstances it is necessary to examine the arguments with great care.

 

The trial.

In May 1993 the appellant stood trial on a charge that he had on 17th September 1991 murdered Gregory Rahming.  Kermit Mackey was a bus driver.  On the day in question he drove his bus on its usual circular route in New Providence.  The deceased was on the bus to keep him company.  The appellant got on the bus.  At some stage there was an altercation over the appellant's fare.  What then happened is in dispute.  At the end of the incident the deceased sustained a fatal stab wound to his neck which was inflicted by the appellant.

 

7. The principal prosecution witness was Mackey.  His evidence was that the appellant had pushed the deceased out of the bus and that the deceased had pushed him back, telling him to "stop playing".  He said that immediately after this scuffle the appellant pulled out the knife and stabbed the deceased.

 

8. The prosecution led evidence from a police officer that the appellant came to the police station the day after the killing.  The appellant showed the police the knife he had used.  The police officer said that the appellant told him that he had been involved in a fight with a man on the bus, and two men attacked him and that he then stabbed one.  Through this officer the defence introduced in evidence, without objection, a written statement in which the appellant described an argument on the bus about his fare.  He said that when he was about to get off the bus the deceased pushed him out and the driver hit him with a bottle.  He then stabbed the deceased.

 

9. Arnold Lloyd was tendered for cross-examination by the Crown.  He said the driver asked the appellant for his fare.  When the appellant was about to get off the bus the appellant pushed the deceased and the deceased then pushed the appellant.  The appellant then stabbed the deceased.

 

10. The appellant made an unsworn statement from the dock.  He said that the deceased had said to him "You aint paying".  The  deceased  pushed  him.  He fell.  As he tried to get up somebody struck him on the head.  Lloyd then came towards him with a broken bottle.  He got his knife out to frighten Lloyd.  He said "I didn't know no one get jook".  He then went home.

 

The summing up.

In his summing up the judge gave correct general directions of law.  He described the ingredients of murder.  He then dealt with the principal issue, viz. self-defence, in detail both as to the law and the facts.  He explained that the Crown needed to prove that the appellant had not acted in self-defence.  All these directions, as well as the judge's summary of the evidence, were correct, balanced and fair.

 

11. Having explained to the jury the need for the Crown to prove that the killing was intentional, the judge left to the jury the issue of provocation.  The judge said:-

"Section 320 says, `A person who intentionally causes the death of another person by unlawful harm shall be deemed to be guilty only of manslaughter and not of murder if any of the following matters of extenuation are proved on his behalf'.  And there are several matters of extenuation, but I will confine myself to the one which I think is relevant to the facts of this case and the first one is that he was deprived of the power of self-control by such extreme provocation given by the other person, as is mentioned in Section 321."

 

12. He then turned to section 321 and recited what he called statutory "examples" of provocation.  He continued:-

"... if you take the version of the accused, he was assaulted by two of them and he was actually hit by one, the accused's version.  But on the prosecution's version the deceased retaliated to being pushed down the steps of the bus by pushing the accused when he passed by and causing the accused to fall down in a sitting position.  So, what you would have to decide then is whether that is sufficient provocation that a person of ordinary character would lose the power of self-control so as to reduce the offence from murder to manslaughter.  Now, there is one other provision which I think I will bring to your attention and that is that even if you find, even if there is provocation, extreme provocation, that notwithstanding proof on behalf  of  the  accused  person of such matter of extreme provocation as in Section 321 is mentioned, his crime shall not be deemed to be thereby reduced to manslaughter if it appears either from the evidence given on his behalf or from evidence given on the part of the prosecution that the act was in respect either of the instrument or means used or of the cruel or other manner in which it was used greatly in excess of the measure in which a person of ordinary character would have been likely, under the circumstances, to be deprived of his self-control by the provocation.  In other words, if you come to the conclusion that there was extreme provocation, notwithstanding that that would not reduce it because either of the cruel manner or the nature of the instrument used, you think you are of the view that a person of ordinary character would not have been likely under the circumstances to be deprived of his power of self-control."

 

13. These passages show how the judge left the defence of provocation for the jury to consider.

 

The issues on this appeal.

One issue can be disposed off summarily.  Contrary to the submissions on behalf of the Crown on this appeal, their Lordships are satisfied that the judge was bound to leave provocation as an issue for the jury to decide.  That was the judge's view and on the evidence he could have taken no other course.

 

14. On behalf of the appellant counsel submitted that the judge, by reading sections 320 and 322 of the Penal Code to the jury, in effect left the issue to the jury on the basis that the burden was on the defendant to prove the defence of provocation.  He submitted that the judge erred in law in doing so.

 

15. Initially, it was thought that the appellant might be able to rely on a constitutional presumption of innocence.  Such an argument prevailed in respect of a constitutional issue under the Criminal Code of Belize: see Vasquez v. The Queen [1994] 1 W.L.R. 1304.  On examination it became clear, that the Constitution of The Bahamas rules out such arguments.  Specifically, section 30(1) of the Constitution provides that nothing in the Constitution would invalidate "an existing law", which includes the Penal Code.  Counsel for the appellant rightly accepted that there was no argument which he could advance in reliance on the Constitution. The principal issue was therefore simply whether, notwithstanding the reform of 1959, the burden of proof in respect of provocation remained on the defendant.  For reasons already given their Lordships do not see this issue as one of an implied repeal of the old law.  In their Lordships' view the legislature, appreciating in 1959 that there was an inconsistency between the old law and the reforming measure, left it to the courts to work out the impact of the new dispensation on the old law.  That involves complex issues which must be examined in detail.

 

The old law.

The old law of provocation, which was left on the statute book, is contained in a number of sections.  Section 311 provides for the reduction of murder to manslaughter on the ground of extreme provocation.  Section 320 reads as follows:-

"A person who intentionally causes the death of another person by unlawful harm shall be deemed to be guilty only of manslaughter, and not of murder, if any of the following matters of extenuation are proved on his behalf, namely -

 

  (1) that he was deprived of the power of self-control by such extreme provocation given by the other person as is mentioned in section 321; or ..."

 

16. Section 321 provides that certain matters, listed in four categories, may amount to provocation.  By way of illustration "an act of adultery committed  in the view of the accused person ... by his wife or her husband" can be mentioned: section 321(3).  It is sufficient to say that those categories are confined to cases of truly extreme provocation.  Section 322(1) must be set out in full:-

"322.-(1) Notwithstanding proof on behalf of the accused person of such matter of extreme provocation as in section 321 is mentioned, his crime shall not be deemed to be thereby reduced to manslaughter if it appears, either from the evidence given on his behalf or from evidence given on the part of the prosecution –

 

(a)that he was not in fact deprived of the power of self-control by the provocation;

 

 

(b)that he acted wholly or partly from a previous purpose to cause death, or harm or to engage in an unlawful fight, whether or not he would have acted on that purpose at the time or in the manner in which he did act but for the provocation;

 

(c)that, after the provocation was given, and before he did the act which caused the harm, such a time elapsed or such circumstances occurred that a person of ordinary character might have recovered his self-control; or

 

(d)that his act, was in respect either of the instrument or means used or of the cruel or other manner in which it was used, greatly in excess of the measure in which a person of ordinary character would have been likely under the circumstances to be deprived of his self-control by the provocation".

 

17. The remaining provisions of the old law on provocation do not affect the issues on this appeal.

 

The reforming measure.

By the statute of 1959 the legislature introduced two additional special defences to a charge of murder, viz. provocation and diminished responsibility.  Both are now contained in the Penal Code.  For convenience their Lordships quote section 325, which was introduced into the Penal Code in 1987, in full:-

"Where on the charge of murder there is evidence on which the jury can find that the person charged was provoked (whether by things done or by things said or by both together) to lose his self-control, the question whether the provocation was enough to make a reasonable man do as he did shall be left to be determined by the jury; and in determining that question the jury shall take into account everything both done and said according to the effect which, in their opinion, it would have on a reasonable man."

 

18. The Crown has submitted that the introduction of section 325 into the Penal Code was effected by something less than a  true  legislative  act,  and  that  no significance should be

attached to what was done in 1987.  Their Lordships are content to approach the matter in this way.  The focus must therefore be on the impact of the Act of 1959 on the old law of provocation in the Penal Code.

 

The purpose and reach of section 325.

Section 325 falls into three parts: (1) provoking conduct; (2) causatively relevant loss of self-control; and (3) the objective criterion whether the provocation was enough to make a reasonable man do as the defendant did.  The purpose of the corresponding provision in section 3 of the Homicide Act 1957 is plain.  It was summarised by the House of Lords in Reg. v. Camplin [1978] AC 705 and again recently in Reg. v. Acott [1997] 1 WLR 306.  First it abolished the previous rule that words alone could not constitute provocation.  It made clear that anything said or done, which causes a loss of self-control in the defendant may constitute provocation.  The provoking conduct does not have to be unlawful.  Moreover, the provoking conduct does not have to be that of the victim: it may come from a third party.  Secondly, section 3 abolished all previous rules of law as to what may constitute provocation.  Thus it abolished the rules that the defence is not available where the defendant used disproportionate means or where there had been a "cooling off" period: Reg. v. Camplin [1978] AC 705, at page 716C, per Lord Diplock.  At the same time section 3 abolished the power of the judge to withdraw provocation as an issue on the ground that there was no evidence on which the jury could find that a reasonable man would have been provoked as the defendant: Reg. v. Camplin.  Henceforth the objective enquiry was to be regarded as an issue of fact, or as a matter of opinion, in the sole province of the jury: Reg. v. Camplin; Reg. v. Acott.

 

19. In 1959 section 3 of the Homicide Act 1957 was enacted verbatim by section 3 of the Homicide (Special Defences) Act, No. 22 of 1959 for The Bahamas.  Section 4 therefore provided that "The defences provided in this Act shall be in addition and without prejudice to and notwithstanding the provisions of the Penal Code".  It therefore provided for an additional and free-standing defence of provocation.  If the requirements of the new provision were satisfied, the defence prevailed.  The words "without prejudice to the Penal Code" do not detract from that view.  The Penal Code contained other somewhat related defences which had to be saved, e.g. a defence of moderate excess of lawful force under section 320(2).  The new provision was intended as a reforming measure fulfilling the same purposes as section 3 of the Homicide Act 1957.  So far as it was inconsistent with the old law the new provision (section 325) was in the words of Lord Herschell the leading provision to which the old law was intended to be subordinate.

 

The inconsistencies between section 325 and the old law.

It is now necessary to examine not exhaustively but in some concrete detail how section 325 can be reconciled with the old law and how far there is inconsistency.  A preliminary and general point must be addressed.  Sections 311, 320, 321 and 322, in combination, only allow the defence in cases of "extreme" provocation.  When this language is read with the four specific cases of classic provoking situations in section 321, their Lordships cannot avoid the conclusion that the word "extreme" is intended to be meaningful and to set a minimum threshold of what can constitute provocation.  It follows that the stipulation of this threshold requirement in the relevant sections is inconsistent with section 325 and must give way to section 325.

 

20. Now it is necessary to examine separately the sections comprising the old law of provocation.  Section 311 makes provision for the verdict if the defence prevails: a verdict of murder is reduced to manslaughter by reason of extreme provocation.  Subject to the qualification that the word "extreme" must give way to the general wording of section 325, it follows that section 311 is not inconsistent with section 325.

 

21. That brings their Lordships to consider restrictions in the old law as to what may constitute provocation.  It will be recalled that the defence of provocation is allowed where it is proved on behalf of the defendant that he was deprived of the power of self-control by such extreme provocation given by the other person "as is mentioned in section 321".  Section 321 is not illustrative of conduct which may constitute provocation: it is a closed category of cases which may qualify as provocation.  In Vasquez v. The Queen the Board commented on the equivalent sections in the Criminal Code of Belize.  The Board said that it (the equivalent of section 321) "defines what can amount to extreme provocation": 1308F.  The defence is not available outside the categories of cases described in section 321.  That becomes even clearer upon  an  examination  of the individual classes of cases listed in section 321.  The first category is expressed to be unlawful assault accompanied by a battery: an assault unaccompanied by a battery, i.e. an unlawful act causing an apprehension of immediate personal violence, does not qualify.  The second is "the assumption by the other person, at the commencement of an unlawful fight, of an attitude manifesting an intention of instantly attacking the accused person with deadly or dangerous means or in a deadly manner".  Plainly an attack with fists, or a mere taunt, does not qualify.  The third class is "an act of adultery committed in the view of the accused person with or by his wife or her husband".  A confession of recent adultery, or the discovery of incontrovertible circumstantial evidence of recent adultery, does not qualify.  The fourth category relates to an assault and battery upon a wife, husband, child, and so forth, in the view or presence of the accused person.  A subsequent discovery of such an assault and battery does not qualify.  Plainly these provisions are inconsistent with section 325.  If section 325 is to fulfil its purpose one is compelled to say that as a matter of construction the relevant part of section 320(1), read with section 321, is now as a matter of construction devoid of practical effect.

 

22. That leads to a consideration of section 322 which in subsection 1(b), (c) and (d) sets out rules of law which a judge may invoke in order to withdraw a case from the jury.  Counsel for the Crown argued that those rules are still in operation in accordance with their original meaning.  But counsel for the Crown accepted that where there is evidence of provoking conduct resulting in a loss of self-control section 325 requires that the question whether provocation was enough to make a reasonable man do as the defendant did should always be left to the jury to decide.  The first proposition, if correct, largely invalidates the second proposition.  After all, the old common law rules enshrined in section 322(1)(b), (c) and (d) allowed a judge to withdraw, for example, a defence of provocation if in his view of disputed facts and in his opinion the defendant used disproportionate means.  The same applies to the other rules.  To say that the rules in section 322(1) survive the enactment of section 325 is to drive a juggernaut through the reforming measure.  The conclusion is inescapable that the relevant provisions of section 322(1) are as a matter of construction devoid of effect qua rules.  That the matters contained in section 322(1)(b), (c) and (d) point to common sense criteria relevant to provocation can readily be accepted but that is a different matter altogether. Now it is necessary to consider whether section 320 can be reconciled in its substantive requirements with section 325.  It prescribes as an indispensable condition to the availability of the defence that the defendant was deprived of the power of self-control "by the other person as is mentioned".  The words "by the other person" is a reference back to deceased victim in the opening words of section 320.  It follows that provocation by a third party is excluded.  Under section 325 there is no such limitation.  The question is simply whether the defendant was provoked to lose his self-control: see Smith and Hogan, Criminal Law, 8th edn. (1996), 363-364.  Section 320(1) is also in that respect inconsistent with section 325.  As a matter of construction section 325, as the dominant provision, must prevail over section 320.

 

23. There is yet another respect in which section 320 is in conflict with section 325.  Under section 325 the evidence of provoking conduct and loss of self-control may come from any source.  It may emerge during the evidence in chief of prosecution witnesses.  But section 320 confines the defence to "matters .... proved on his behalf".  The point requires some explanation.  It is not uncommon that a defendant is entirely unresponsive in police interviews, and gives no explanation at the trial by way of statement from the dock or evidence from the witness box.  His case may simply be that the Crown has not proved his guilt.  Although he may not rely on provocation at all there may nevertheless be some evidence of provoking conduct coming, for example, from an eye witness, e.g. that the killing was preceded by a quarrel.  Another case may be where the defendant puts forward an alibi in interviews and in evidence at the trial.  He may not rely on provocation at all.  But one witness called by the prosecution may testify that the defendant was taunted before the killing.  In both cases there is no evidence of provocation produced on behalf of the defendant.  Nothing of relevance has been "proved on his behalf" with the meaning of section 320.  That this construction of section 320 is inevitable is reinforced by section 322, which, so far as relevant, provides:-

"(1)Notwithstanding proof on behalf of the accused person of such matter of extreme provocation as in section 321 is mentioned, his crime shall not be deemed to be thereby reduced to manslaughter if it appears, either from the evidence given on his behalf or from evidence given on the part of the prosecution ..."

 

and then follows the four "cases in which benefit of provocation is excluded" to quote the marginal note.  Section 322 refers back to the foundation requirement under section 321 ("proof on behalf of the accused person") and provides that even if that requirement is satisfied provocation is nevertheless excluded in four cases, i.e. the judge must withdraw the case from the jury in those cases.  And, in that context it does not matter whether the evidence comes from the defendant or the prosecution.  It is impossible to treat the foundation requirement in section 320 ("matters ... proved on his behalf") as unnecessary verbiage.  Indeed in Vasquez v. The Queen, in considering an argument in respect of similarly worded provisions in the Criminal Code of Belize, the Board expressly stated that the words "on his behalf" in a section corresponding to section 320 cannot be treated as unnecessary: 1309B.  It is therefore plain that, whatever the practice may have been, as a matter of strict law there is an inconsistency between the requirement "matters .... proved on his behalf" in section 320 and section 325.  As a matter of construction section 325 must prevail.

 

24. It is now possible to examine whether in respect of the free-standing defence under section 325 the burden of proof is placed on the defendant by section 320.  The Act of 1959 expressly placed the burden of proof in respect of diminished responsibility on the defendant: section 2.  It was open to the legislature in enacting this special legislation to have made a similar provision in respect of provocation.  It did not do so.  Having concluded that the legislature was aware of the obvious inconsistencies between the old law and section 325, and left it to the courts as a matter of construction to work out the consequences, it would be quite wrong to assume that the legislature intended the words "proved on his behalf" in section 320 to place the burden on the defendant under section 325.  The new free-standing defence of provocation was modelled on section 3 of the Homicide Act 1957 which in turn was predicated on the principle that the burden of proof is on the prosecution to prove the ingredients of the offence of murder and to controvert the defence of provocation.  Having not expressly dealt with the burden of proof in a legislative exercise fraught with uncertainty, it seems right to conclude that the burden of proving that the killing was unprovoked must rest on the Crown.  This conclusion becomes compelling  when  one  turns  to section 320 on which the Crown rely for their submission that the burden rests on the defendant to prove his defence.  Their Lordships have already held that in three interwoven substantive respects section 320 is inconsistent with section 325, viz. (1) the restricted categories of provocation permitted by the words "as is mentioned in section 321"; (2) the exclusion of provocation emanating from a third party; and (3) the restriction of the enquiry to matters "proved on his behalf", which excludes evidence not put forward by the defendant but emerging during the course of the prosecution case.  If those rulings are correct, as their Lordships believe them to be, section 320 has as a matter of construction been found to be inconsistent with section 325 in every material part.  Is the elliptical provision ("matters ... proved on his behalf") in section 320 nevertheless extant and capable of being reconciled with section 325?  Their Lordships believe that there can only be one answer.  The cumulative effect of inconsistencies between sections 320 and 325 make it impossible to say that section 320 effectively places the burden on the defendant in respect of the free-standing defence under section 325.  Moreover, for the reason already explained, the very provision in section 320 on which the Crown relies ("matters ... proved on his behalf") is inconsistent with section 325 and therefore devoid of practical effect.  It is a surreal suggestion to say that the relevant words can nevertheless continue to operate for the purpose of placing the burden of proof under section 325 on the defendant.  Orthodox principles of construction compel the conclusion that the words of section 320 cannot apply to the new special and additional defence under section 325.  The burden is therefore on the Crown to prove that the murder was unprovoked.

 

25. In coming to these conclusions their Lordships have kept in mind the decision of the Privy Council in Vasquez v. The Queen [1994] 1 W.L.R. 1304 upon which the Crown so strongly rely.  In Vasquez the Privy Council ruled (1) that section 116(a) of the Criminal Code of Belize - the equivalent of section 320 of the Penal Code of The Bahamas - placed the burden of proof of provocation on a charge of murder on the defendant and (2) that section 116(a) was therefore in conflict with the Constitution of Belize and had to be modified to place the burden to disprove provocation on the prosecution.  The second ruling is not relevant to the issues presently under consideration but, it is right to add, was the major issue in Vasquez.  The first ruling is partly relevant.  Counsel argued that  section  116(a) did  not in truth place the burden of proof on the defendant.  For this purpose the defence of provocation under 118 (a provision corresponding to section 325) was not brought into play.  In a detailed discussion the Board rejected this submission: 1308H-1311C.  This part of the judgment is also irrelevant to the issues under consideration: section 320 plainly placed the burden on the defendant.  Then Lord Jauncey of Tullichettle turned to the impact of section 118 (the provision corresponding to section 325 in the present case) on the old law.  After quoting the section and a passage from Reg. v. Camplin [1978] AC 705 at page 716, Lord Jauncey dealt quite shortly with this part of the case.  He said (at page 1312A-C):-

"It was argued by the defendants that section 118 implicitly placed the burden on the prosecution to negative provocation.  Their Lordships do not agree.  As Lord Diplock stated in relation to section 3 of the Homicide Act 1957, section 118 achieved two results, namely first it allowed words alone to constitute provocation and secondly it provided that if there was any evidence, however slight, that an accused had lost his power of self-control as a result of some provocation, the question of whether a reasonable man might have so acted must be left to the jury.  Section 118 has nothing to do with burden of proof and its introduction into the Code cannot affect the construction of section 116(a).  This same conclusion was reached, correctly in their Lordships' view, by the Court of Appeal of Belize in Bowers v. The Queen."

 

26. This is the reasoning which the Crown submits is decisive in the present case.

 

Vasquez is, however, distinguishable.  In Belize the legislature, unlike the Bahamian legislature, inserted the word "extreme" immediately before the word "provocation" in the reforming provision.  That is important: it provided an express link between the new defence and the old law.  That by itself made an argument based on implied repeal of the old law difficult.  Moreover, it is of cardinal importance to appreciate that in Belize in 1981 the new provision and the old law were enacted and re-enacted at the same time and by means of the same legislative text.  This fact made an argument based on implied repeal of the old law implausible.  When it was subsequently argued in Logan v. The Queen [1996]  A.C.  871  that  the new provision impliedly repealed the old law this argument was rejected on this ground.  (In passing their Lordships draw attention, however, to the fact that by a process of construction their Lordships in Logan were able to hold that the substantive requirements of the relevant old law did not prevail over the new defence.)  The cardinal difference between the new provisions in Belize and in The Bahamas is that in the case of Belize there was no special enactment which provided that the new provision would be an additional and free-standing defence. 

 

27. But their Lordships feel compelled to point out that the issues considered in this judgment were never examined in Vasquez.  Moreover, counsel for the Crown in the present case stated that in saying at page 1312A that section 118 "achieved two results" the Board in Vasquez telescoped the aim and effect of section 118.  The quoted passage certainly did not fully describe the aims and effect of the new provision as set out in this judgment.  Moreover, it was never argued before the Board in Vasquez that all or any substantive requirements of the old law were inconsistent with the new defence.  Lastly, the Board never considered the question whether the words "matters ... proved on his behalf" in section 116(a) were inconsistent with the new defence.

 

28. In these circumstances their Lordships consider that the decision in Vasquez is entirely distinguishable.  Their Lordships would decide the present case on the different basis already outlined which was not placed before the Board in Vasquez.

 

The effect on the administration of justice in The Bahamas.

The effect of their Lordships' judgment is that the reform introduced by section 325 can in future be given full force and effect in The Bahamas. The task of trial judges, and the Court of Appeal, will be greatly simplified.  In cases where there is some evidence of provoking conduct, which possibly resulted in a loss of self-control, judges will be able to sum up in terms of section 325, ignoring the historic ballast of the old law.  It will, of course, be necessary for the judge in every such case to direct the jury that the Crown must prove killing was unprovoked.

 

The effect on the instant appeal.

The judge is not to be blamed for discussing the old law of provocation.  But,  by  quoting  sections  320  and 322 in  his

summing up, he in effect directed the jury that the burden was on the defendant to prove the defence of provocation.  That was a material misdirection.  The conviction ought to be quashed.

 

29. This was, however, a strong case.  The murder was committed in September 1991 and the trial took place in May 1993.  In these circumstances a retrial might be practicable and just.

 

The disposal of the appeal.

Their Lordships will humbly advise Her Majesty that the appeal ought to be allowed, the conviction and sentence quashed and the case remitted to the Court of Appeal in The Bahamas to decide whether a retrial should take place.

 

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