Judicial Committee of the Privy Council
| Published date | 01 January 1960 |
| Date | 01 January 1960 |
| DOI | http://doi.org/10.1177/002201836002400106 |
| Subject Matter | Article |
Judicial
Committee of the
Privy
Council
PROVOCATION AS A DEFENCE: BURDEN OF PROOF
Bharat v. The Queen
THIS case (1959, 3 W.L.R. 406) provides another instance
of an appellate court having to point
out
that
the
trial
judge
had failed to give a proper direction as to
the
defence of
provocation on a charge of murder.
With
regard to
the
possibility
th~t
the
offence might be
manslau~hter
the trial
Judge had said :
"You
would have to be satisfied beyond
reasonable doubt
that
it might be
that
the
Crown was wrong
as to
that
aspect, and you would have to believe
that
the
accused received such provocation
that
he was justified in
resisting force by using force". On behalf of
the
Crown it was
said
that
the misdirection did
not
matter, because
the
judge
disbelieved the appellant's story altogether, and there was thus
no foundation on which an issue of provocation could be
raised.
The
Judicial Committee (Lords
Tucker
and Denning
and
the
Rt. Hon.
L.
M. D. de Silva) could not accept this
contention. Apart altogether from
the
appellant's evidence,
there was some evidence of a struggle having taken place before
the
deceased
met
his death.
The
question of provocation
should have been considered and
the
burden
of proof properly
explained: see Bullard v. The Queen (1957
A.C.
635).
At the trial of
the
appellant in Fiji on a charge of murder,
at which he gave evidence which raised issues of self-defence
and
provocation,
the
judge wrongly directed
the
assessors
that
the
burden
of proofwas on
the
appellant, and also gave them a
wrong description as to what amounted in law to provocation.
Each assessor gave his opinion
that
the
appellant was guilty of
murder, and
the
judge subsequently gave judgment to
the
same effect.
The
appellant's appeal to the Court of Appeal
45
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