Burnett v the State of Trinidad & Tobago
| Jurisdiction | UK Non-devolved |
| Judge | LORD SAVILLE |
| Judgment Date | 04 November 2009 |
| Neutral Citation | [2009] UKPC 42 |
| Docket Number | Appeal No 0043 of 2009 |
| Court | Privy Council |
| Date | 04 November 2009 |
[2009] UKPC 42
Privy Council
Lord Phillips
Lord Saville
Lord Rodger
Lord Walker
Lord Mance
Appellant
Lord Thomas of Gresford QC
Gilbert Blades
(Instructed by Wilkin Chapman Epton Blades)
Respondent
Howard Stevens
(Instructed by Charles Russell LLP)
On the night of Saturday 24th January 2004, a group of young people, including Kevin Cato and Ryan Solomon, joined a crowd of approximately 20,000 at the "Outrageous in Red" Carnival Fete in Chaguaramas, Trinidad.
The Appellant, Dave Burnett, was one of a number of armed police officers providing security at the fete. He was in plain clothes. He was 30 years old and had been a regular police officer for 7 years.
At about 4 am, some of the group of young people were locked in a circle and were jumping up and down. They were bumping into and throwing water over other people at the event. One of them had identified the Appellant as a policeman and said that he had warned his friends not to bounce into him or throw water at him for that reason. However, members of the group did bump into the Appellant on two or three occasions. Slaps were exchanged between the Appellant and Ryan Solomon.
According to the Appellant he was attacked by at least six people, two of them armed with knives, and he feared for his life. He drew his revolver and shot Ryan Solomon and then Kevin Cato, both in the chest at short range. Kevin Cato was mortally wounded. The Appellant immediately made a report to his superior officer at the fete, Inspector Lezama, showing him a knife and telling him that he had been attacked by some "knife wielding patrons inside the fete" and that he believed that he had shot one of them, who had lunged at him with the knife.
Inspector Lezama observed that the left side of the Appellant's face appeared to be swollen, that there appeared to be a small blood stained injury to the back of his neck and that there was a small hole on the left side of his jersey. The Appellant told Inspector Lezama that the hole had been made by the knife, which had become entangled in his clothing.
The Appellant was medically examined at the Port of Spain General Hospital and found to have a swollen left cheek, a 3cm abrasion to the back of his neck and a soft tissue injury to the left side of his chest.
Other witnesses, including Ryan Solomon, gave a different account of what happened before and as the Appellant fired his revolver, and disputed his account of two people coming at him with knives. Their evidence was that neither Ryan Solomon nor Kevin Cato was armed.
The Appellant was committed by the Magistrates' Court to stand trial for manslaughter at the Port of Spain 3rd Assize. His trial commenced on an indictment laid for murder before Brook J and a jury on 14th February 2006 and concluded on 21st March 2006, when the jury returned a verdict of murder and the Appellant was sentenced to death. His appeal to the Court of Appeal was dismissed in a judgment delivered on 19th July 2007. He appealed with leave to this Committee, which on 15th July 2009 announced that the Board would allow the appeal and remit the case to the Court of Appeal. The reasons for the Board taking this course are as follows.
At the trial the Appellant gave evidence. His case throughout was that he had acted in self-defence, fearing for his life. The prosecution case was that that there had been no more than a minor altercation after people had accidently bumped into the Appellant, who for no good reason had drawn his revolver and shot two of them. However, some of the prosecution witnesses gave accounts that indicated that there had been more than a minor altercation; and that there had been a struggle or fight, during which Ryan Solomon had got hold of the Appellant.
Right at the end of the trial and immediately before the judge began his summing up, prosecuting counsel submitted that the issue of provocation should be left to the jury; a submission that was strongly opposed by counsel for the defence.
Section 4B of the Offences against the Persons Act (similar to Section 3 of the United Kingdom Homicide Act 1957) provides as follows:
"Where on a 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 done and said according to the effect which, in their opinion, it would have on a reasonable man."
The judge, in his ruling on this point, considered that on the authority of R v Acott [1997] 1 All ER 706, there could only be an issue of provocation to be considered by the jury,
"if the judge considers that there is some evidence of a specific act or words of provocation resulting in a loss of self-control. It does not matter from what source that evidence emerges or whether it is relied on at trial by the defendant or not. If there is such evidence, the judge must leave the issue to the jury. If there is no such evidence, but merely the speculative possibility that there has been an act of provocation, it is wrong for the judge to direct the jury to consider provocation. In such a case there is simply no triable issue of provocation."
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Richard Anthony Daniel v The State
...of loss of control, the Board agrees that it may do but not that it inevitably will, for the reasons given above. In Burnett v The State of Trinidad and Tobago [2009] UKPC 42 a policeman on security duty at a carnival had shot two patrons in the chest at close range, one of whom had died a......
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Daryeon Blake Vaughn Blake v R
...Mr Knight referred us to the decision of the Privy Council, on appeal from the Court of Appeal of Trinidad and Tobago, in Burnett v State of Trinidad and Tobago6. In that case, the appellant was a police officer who had been deployed as part of the security detail at a carnival fete. The de......
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Ramdeen (A/C J-Lo) and Abraham v The State
...degree and an intense focus on the circumstances of a particular case”. 18 In the recent Privy Council decision in Burnett v. the State [2009] U.K.P.C. 42 the Board followed the learning set out in Acott. There, the appellant, a police officer was attacked by a group of young men while at a......
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Nedd (A/C Terry) v the State
...man do as the defendant did. This learning in Acott was followed in the recent Privy Council decision of Burnett v. The State [2009] U.K.P.C. 42. 21 It was made clear in Acott that section 3 places distinct and separate duties on the judge and on the jury. It is the responsibility of the ju......