Culmer v R
| Jurisdiction | UK Non-devolved |
| Judge | Lord Nicholls of Birkenhead,Lord Steyn |
| Judgment Date | 29 July 1997 |
| Docket Number | Privy Council Appeal No.6 of 1996 |
| Court | Privy Council |
| Date | 29 July 1997 |
Privy Council
Lord Nicholls of Birkenhead; Lord Jauncey of Tulllichettle; Lord Steyn; Lord Hoffmann; Lord Hutton.
Privy Council Appeal No.6 of 1996
Criminal law - Defences — Provocation — Appellant tried for murder — Trial judge gave direction on provocation — Conflict between provisions in Penal Code on provocation and provisions in the Homicide (Special Defences) Act of 1959 — New Trial Ordered.
Lord Nicholls of Birkenhead and 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.”
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.
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.
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] A.C. 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.”
A similar question will have to be considered in the present case.
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.
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.
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.
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.
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.
The appellant made an unsworn statement from the dock. He said that the deceased had said to him “You ain't 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.
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.
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.”
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...
To continue reading
Request your trial
-
Yearwood v R
...jury. A provision in almost the same terms was introduced into the Penal Code of The Bahamas in 1987 as section 325 of that Code: see Culmer v The Queen [1997] 1 WLR 1296. As Lord Jauncey said in Vasquez v The Queen at p 1311H, section 118 of the Belize Criminal Code differs from section 3......
-
Bull v The Queen
...murder - Whether or not the trial judge incorrectly directed the jury about the defence of provocation - Logan v. R. [1996] A.C. 871 and Culmer v. R. [1997] 1 W.L.R. 1296 considered - Court found that the trial judge did misdirect the jury - Conviction quashed. 1 JUDGMENT OF THE COURT. On 2......
- Williams (Cardinal) v R
-
Judicial Committee of the Privy Council
...defence to a charge of murder (reducing it tomanslaughter) which had come down to us from Victorian times. Theissue raised in Culmer v R[1997]1 WLR 1296 has, in consequence, nodirect impact on the present English law of provocation. But the principles163 JournalofCriminal Lawenunciated by t......