253 Baptiste v The State COURT OF APPEAL OF TRINIDAD AND TOBAGO KELSICK acting CJ, BRAITHWAITE and BERNARD JJA 23rd NOVEMBER 1982, 4th FEBRUARY 1983 Criminal law ~ Pleas in defence ~ Self-defence ~ Burden on prosecution ~ Failure to discharge burden ~ Effect of intention to kill Criminal law — Pleas in defence ~ Provocation ~ Burden on prosecution — Failure to discharge burden ~ Effect of intention to kill Criminal law — Pleas in defence — Accident ~ Burden on prosecution — Failure to discharge burden ~ Effect of intention to kill Criminal evidence ~ Circumstantial evidence — Prosecution relying substan- tially on circumstantial evidence ~ Whether guilt of accused need be only possible explanation of evidence At the trial of the appellant for murder, he pleaded self-defence, accident and provocation in reply to the charge. Whilst the trial judge dealt impeccably in his summing-up with the burden of proof and the standard of proof, he repeatedly referred to the matters pleaded by the appellant as “defences” and did not make it clear to the jury that the question of self-defence had actually arisen in the case, nor that a plea of provocation might succeed even had the appellant formed an intention to kill or to inflict grievous bodily harm. The appellant was convicted of murder and appealed to the Court of Appeal Held, allowing the appeal and ordering a retrial — (a) in every case where a plea of self-defence, provocation or accident was raised in defence the trial judge must (in addition to giving general directions as to the onus of proof) give a special direction that a further burden rested on the prosecution to negate beyond reasonable doubt the existence of those pleas; if in a trial for murder that onus were not discharged by the prosecution, the accused must, where he had pleaded self-defence or accident, be acquitted or, where he had pleaded provocation, be convicted of manslaughter; Rv Wheeler (1967) 52 Cr App Rep 28 applied. (2) in such cases, the judge should direct the jury that an intention to ill negated a plea of accident; but a plea of self-defence or provoca~ tion might succeed even though the accused had formed an intention to kill; further in relation to a plea of provocation, the judge should avoid making any reference to the accused being or not being “master of his own mind”.254 (1983) 34 WIR Antoine and Bass v R (1968) 13 WIR 289 and Julien v R (1970) 16 WIR 395 followed. a R v Bunting (1963) 8 WIR 276 applied. Cases referred to in the judgment of the court Antoine and Bass v R (1968) 13 WIR 289, Trinidad and Tobago CA. ‘Chan Kau v R [1955] AC 206, [1955] 1 All ER 266, [1955] 2 WLR 192, b PC. Julien v R (1970) 16 WIR 395, Trinidad and Tobago CA. ‘McGreevy v Director of Public Prosecutions [1973] 1 All ER 503, [1973] 1 WLR 276, 57 Cr App Rep 424, HL. Maniram Lalloo v The State (1978) 30 WIR 342, Trinidad and Tobago ¢ CA. Palmer v R [1971] AC 814, [1971] 1 AILER 1077, [1971] 2 WLR 831, 55 Cr App Rep 223, PC. Powell v R (1963) s WIR 557, British Caribbean CA. Rv Abraham [1973] 3 All ER 694, [1973] 1 WLR 1270, $7 Cr App Rep 799, England CA. R v Bunting (1965) 8 WIR 276, Jamaica CA. Rv Bums and Holgate (1967) 11 WIR 110, Jamaica CA. R v Cameron [1973] Crim LR 520, England CA. R v Elliott (Clarice) (1952) 6 Jamaica LR 173, Jamaica CA. e R v Hodge (1838) 2 Lew CC 227. R v Lovell (1957) 4 Cr App Rep 100, England CA. Rv Melnnes [1971] 3 All ER 295, [1971] 1 WLR 1600, 55 Cr App Rep. 551, England CA. Rv McPherson (1957) 41 Cr App Rep 213, England CCA. t Rv Murtagh and Kennedy (1955) 39 Cr App Rep 72, England CCA. R v Plinton (1965) 9 WIR 44, Jamaica CA R v Richards (1967) 11 WIR 102, Jamaica CA. Rv Wheeler [1967] 3 All ER 829, [1967] 1 WLR 1531, 52 Cr App Rep 28, England CA 9 Smart v The State (1982) (unreported) criminal appeal 3 of 1980, 19th November, Trinidad and Tobago CA. State (The) v Simmons (1976) 24 WIR 149, Guyana CA. Williams v R (1974) 26 WIR 541, Trinidad and Tobago CA. Appeal Victor Baptiste appealed to the Court of Appeal of Trinidad and Tobago (criminal appeal 4 of 1981) against his conviction for the murder of Patricia Marquis. The court allowed his appeal on 23rd November 1982, but reserved its reasons. The facts are set out in the j judgment of the court delivered by Kelsick acting CJ. RL. Maharaj and O. Charles for the appellant. V. Nunez for the State. Cur adv vult,T Baptiste v The St 255 Kelsick acting CJ read the judgment, of the court. On 23rd November 1982, we allowed the appeal of the appellant and set aside his conviction and sentence for the murder of Patricia Marquis (“Pat”) at Port-of-Spain on 1st August 1979, and we ordered a retrial. We stated that we would give the reasons for our decision at a later date which we now proceed to do. ‘Anthony Hendrickson, a calypsonian with the sobriquet “All- rounder”, was a mutual friend of the Marquis family and of the appellant (otherwise known as “Jackie”) who as the paramour of Pat carly in 1979 took up lodging at the home of her mother where several of the mother’s children and grandchildren also reside, Pat had previously had a lover in Victor Sweeney (“Victor”), who was the father of the youngest of her four children. ‘The case for the prosecution was as follows. Around 6.45 p.m. on ast August 1979, Allrounder stopped in his walk outside the Marquis family home at 4 Davis Street, Belmont, to sit and chat with a group of persons which included the appellant and Pat, who, with her 11- month old baby, was seated next to John Alexander (“John”). John and Allrounder were the only two witnesses to the incident leading to Pat's death. The appellant called Allrounder aside and confided to him his personal problems, seeking advice and help. He was concerned about pending charges against him for larceny and for unlawful possession of marijuana, which scemed to have turned the Marquis family against him. In desperation he said to Allrounder that he felt like killing all of them, specifically mentioning Pat and her mother. Allrounder exhorted him to say his prayers and to abandon those thoughts. Allrounder then resumed conversation with the others and this centred on the former's calypsoes for the next season. Allrounder and John left and returned with some liquor of which Allrounder, John and Pat partook. At Pat's request the appellant took the baby inside the house. On his return, having changed from long into short pants, he called Pat who, clothed in her nightdress, went and sat with him on a bench on the opposite side of Davis Strect from the rest of the company. Suddenly there was a sound from the bench of “Oh God” and Pat, washed in blood, ran in a stagger, calling “Mammy, Mammy” and on reaching the yard of the house she fell. The appellant stood up watching her, with a knife about 9 inches long in his hand, and then he ran up to Laventille. This was between 9.00 and 10.00 p.m. and there was a lamp post alight in the street. Allrounder assisted in getting Pat by car to the Port-of-Spain general hospital. In cross-examination Allrounder denied that there had been any tussle between Pat and the appellant; whereas John stated that, in a standing position, they had coupled up and held on in a wrestling motion for five to ten minutes. John deposed to seeing two stab wounds in Pat's back when she was in the yard. Sylvia Jerome (“Sylvia”), one of Pat’s sisters, who had left the house as Allrounder286 (1983) 34 WIR arrived to pay a visit to Errol Charles, said that at 10.30 p.m. she was standing with Errol at Picton Road waiting for a taxi to return home when the appellant in short pants came towards her walking in a hurry. She called and asked where he was going. He replied “I just give your sister three —— stabs, you better go and see if she is dead” Hie repeated that statement to her in response to her inquiring “What it is you say?” Sylvia then took a taxi to the Port-of-Spain general hospital where she met her sister Bernadette and her cousin coming, from the casualty department. In response to a telephone call at 1.30.m. on and August 1979, Ins Richardson proceeded to 4 Davis Street with a police photographer who took some photographs. He said that there were lighted bulbs on a lamp post 62 feet from a bench on the opposite side of the street and. that, in front of the bench, there were stains resembling blood. ‘On 4th August, he led a scarch party to a house in East Dry River. He called out to the appellant to come out of the house, as it was surrounded. The appellant replied: “I not coming out and if you come in I will stab myself”. Richardson testified that on his entering the house he saw the appellant sitting on a bed attired in short pants. Richardson told him of the report concerning Pat’s death and of the account of the incident as recounted above, and he cautioned him. The appellant said that he was fecling weak. There was a small puncture ‘wound in his chest which he informed Richardson he had inflicted on himself with a pair of scissors that were on the floor and which Ins Richardson took possession of and tendered in evidence. He took the appellant to the Port-of-Spain general hospital where he was attended to by Dr Coelho and warded. Ins Richardson again spoke to the appellant on 12th August 1979, at the Criminal Investigation Department at Port-of-Spain, where he repeated to him the report and amplified it by notifying him of Pat's death from stab wounds; and he again cautioned the appellant. The appellant declared that he and Pat had had an argument that night over a pack of cigarettes and he had stabbed her with a knife, which he threw into some bushes off Picton Road in Laventille. The appellant directed Ins Richardson and other police officers to a spot which they searched; but they did not find the knife. Ins Richardson denied that the appellant had told him that the wound on his chest was inflicted by Pat. The deposition of Dr Coelho, who was absent from the territory, was admitted by consent. The doctor stated that on examining the appellant at 5.30a.m. on 4th August at the Port-of-Spain general hospital he found a'1 cm laceration on his second left intercostal space, left sternal edge and anterior chest walls, which appeared to have been caused by a sharp instrument; but that it was difficule to tell the degree of force used. Dr Dopson, a forensic pathologist, performed an autopsy on Pat’s body on and August, which revealed the following injuries: a stab287 wound 34 inches deep on the anterior or front wall of the chest which travelled from front to back, from left to right and somewhat downward, cut the second rib cartilage and ruptured the aorta and pulmonary artery; two wounds on the posterior wall or back, one of these was about 3 inches in depth, high up on the right side just below the shoulder blade and penetrated the right lung and liver, both of these wounds travelled from back to front and downward; significant haemorrhaging (1000 cc) around the wounds, and in the left chest cavity there was about 1 litre of blood. The wounds could have been inflicted by a sharp-cutting instrument, the first with moderate to severe force and the other two with moderate force. Death could have been caused by the wound to the back alone or by the wound to the upper back alone. ‘The appellant gave evidence on oath to the following effect. Pat had told him that she had fought with Victor (the father of her youngest child) and that she had finished with him. After he had been charged, ‘on 20th May 1979, with larceny of jewellery, Pat began to go out, and to sleep with Victor; and she resorted to drink. The appellant's remonstrations to her concerning her behaviour were rebuffed. On the day before 1st August 1979, Pat had slept away from home. On 1st August the appellant went unsuccessfully in search of work at the Special Works Project. On his return he met Pat sweeping the house and, in response to his inquiry, she said that she had slept at home the previous night. ‘The appellant admitted the conversation with Allrounder, except (i) the allegation that he said that he felt like killing Pat and her mother; and (ii) the facts deposed to by Allrounder that transpired after he sat on the bench with Pat. According to the appellant he had chided her for the kind of life she was living and promised her that after the case everything would be all right, She brushed him aside. She pulled away her hand and moved to rise from the bench. He stretched out his hand to her and said “You know I feel to bust your —— mouth”, She thereupon pushed her hand in her bosom and pulled what at first he said was a knife, and threatened to kill him that night. In cross-cxamination he said that he had not seen the knife, as it was dark. They wrestled for the knife for about five minutes, during which time she stabbed him. He pushed her two hands with the knife towards her body, when she was stabbed. He declared that he could not say how she got stabbed in the back; he knew of only one stab. He denied having seen or spoken to Sylvia; he also denied the statements attributed to him by Ins Richardson. He alleged that he had told Ins Richardson that Pat had stabbed him that same night during the wrestling encounter; that on 4th August Ins Richardson had found the scissors on a dressing table, and that he had informed Ins Richardson that they belonged ‘to his cousin, He admitted that Allrounder was his long-time friend whom he trusted.258 West Indian Reports (1983) 34 WIR ‘The grounds of appeal are that the judge had (j) failed to direct the jury adequately on the questions of (a) self-defence, accident, provoca- tion, and (b) on the circumstantial evidence; and (ji) that he failed to put the defence of the appellant fairly and adequately. In regard to ground (i) (a) the complaint is that the judge failed to give an adequate explanation of the meanings of those pleas and to give proper directions concerning the onus on the State in disproving them: more particularly, that in relation to cach of these pleas he erroneously omitted to give specific directions to the jury that where any of these issues was raised by the evidence led cither by the prosecution or the defence the onus was on the State to negative each of those pleas and to satisfy the jury beyond reasonable doubt of the guilt of the appellant. In Chan Kau v R [1955] AC 206 Lord Tucker, delivering the reasons for allowing an appeal against a charge of murder, stated the opinion of the Privy Council that: “in cases where the evidence discloses a possible defence of self defence the onus remains throughout upon the prosecution to establish that the accused is guilty of the crime of murder and the onus is never upon the accused to establish this defence any more than its for him to establish provocation or any other defence apart from that of insanity. Since the decisions of the House of Lords in Woolmington v Director of Public Prosecutions [1935] AC 462 and Mancini v Director of Public Prosecutions [1942] AC 1 it is clear that the rule with regard to the onus of proof in cases of murder and manslaughter is of general application and permits of no exceptions save only in the case of insanity, which is not strictly a defence.” In R v Lovell (1957) 41 Cr App Rep 100 a conviction for wounding, with intent was quashed by the Court of Criminal Appeal on the ground that the trial judge directed the jury that it was for the defendant to establish to their satisfaction his plea of self-defence. The court approved the above statement of the law in Chan Kau and at pp. 104, 105 declared the rule to be that: “If on a consideration of all the evidence the jury are left in doubt whether the killing or wounding may not have been in self-defence the proper verdict would be Not Guilty ...” and that the said rule applies also when the issue is one of provocation. The applicant in R v Wheeler (1967) 52 Cr App Rep 28 was convicted of manslaughter of T and of larceny of ‘T’s wallet. He applied for leave to appeal against the former conviction only. The main issue was whether the attack, which the applicant admittedly made on T, was made (as the prosecution alleged) with a view to theft, which he committed; or whether the applicant, in inflicting the juries, was endeavouring to defend G, who was his common-law wife, from a sexual attack by T and was using reasonable force in so2 T Baptiste v The State 259 doing. The following guidelines of general application for a judge in directing the jury were adumbrated by Winn LJ (at pages 30, 31): . . wherever there has been a killing, or indeed the infliction of violence not proving fatal, in circumstances where the defendant puts forward a justification such as self-defence, such as provoca~ tion, such as resistance, to a violent felony, it is very important and indeed quite essential thatthe jury should understand, and that the matter should be so put before them that there is no danger of their failing to understand, that none of those issues of justification are [sic] properly to be regarded as defences: unfortunately, there is sometimes a regrettable habit of referring, for example, fo the defence of self-defence. In particular, where a judge docs slip into the error or quasi-crror of referring to such explanations as defences, it is particularly important that he should use language which suffices to make it clear to the jury that they are not defences in respect of which any onus rests upon the accused, but are matters which the prosecution must disprove as an essential part of their case before a verdict of Guilty is justified.” [emphasis supplied} The court did however append the following proviso: “But, of course, there are many cases where the facts and circum- stances of the case itself and the framework of the summing-up to the jury by the learned judge suffice perfectly adequately to make it ceriain that the matter has been understood by the jury in the true light which I have endeavoured to define. It may be quite unneces- sary repeatedly and separately to refer to onus in respect of those issues. ‘The correct practice was stated in Palmer v R (1970) $5 Cr App Rep 233, 242, by the Privy Council, per Lord Morris of Borth-y-Gest: “There arc no prescribed words which must be employed in or adopted in a summing-up. All that is nceded is a clear exposition, in relation to the particular facts of the case, of the conception of necessary self-defence . .. A jury will be told that the defence of self- defence, where the evidence makes its raising possible, will fail only if the prosecution shows beyond doubt that what the accused did was not by way of self-defence” and was applied by this court in Williams v R (1974) 26 WIR 541, 544- In R v Abraham (1973) $7 Cr App Rep 799, after referring to the above procedure recommended in Wheeler, the Court of Appeal per Edmund Davies LJ suggested an appropriate approach by a trial judge {at page 803): “What accordingly is the drill, if that term may be used, which a trial judge should faithfully follow in dealing with such special pleas as self-defence? Surely it is this: give a clear, positive and unmistake- able general direction as to onus and standard of proof, then260 West Indian Reports (1983) 34 WIR immediately follow it with a direction that in the circumstances of the particular case there is a special reason for having in mind how the onus and standard of proof applies and go on to deal in, for example, the present case with the issue of self-defence by telling the jury something on these lines: ‘Members of the jury, the general direction which I have just given to you in relation to onus and standard of proof has a particularly important operation in the circumstances of the present case. Here the accused has raised the issue that he acted in self-defence. A person who acts reasonably in his self-defence commits no unlawful act. By his plea of self-defence the accused is raising in a special form the plea of Not Guilty. Since it is for the Crown to show that the plea of Not Guilty is unacceptable, so the Crown must convince you beyond reasonable doubt that self-defence has no basis in the present case.” Having done that the trial judge can then proceed to deal with the facts of the particular case. The last thing I seck to do is to lend support to the misconception that any prescribed words have to be used in giving the directions. (See Palmer v R.) But by adopting some such words as those I have suggested he eliminates, one would have thought, any possible complaint of the kind which, in our judgment, is validly made against the summing-up in the present case. In the recent case of Smart v The State (1982) (unreported), 19th November, which was a case of wounding with intent and in which the plea of self-defence was raised by the accused, Sir Isaac Hyatali CJ, in reliance upon and citing with approval Wheeler, Abraham and Rv Cameron [1973] Crim LR 20 and the relevant passages therein speaking for the court said: “itis clear law that when an accused person has, either by cross- examination or by evidence which he himself has led or placed before the court, set up the case of self-defence, it is the imperative duty of the trial judge who is summing up the case to the jury, to give a special direction on the onus of proof, and it is not sufficient merely to give a general direction that the onus of proof is on the prosecution ....” emphasis supplied ‘That the prosecution must also destroy a plea of accident where it is raised was also emphasised in Rv Murtagh and Kennedy (1955) 39 Cr App Rep 72 and in The State v Simmons (1976) 24 WIR 149. In Murtagh and Kennedy M was convicted of the murder, and K of the manslaughter, of J who was knocked down and fatally injured by a car driven by M, that mounted a pavement where J was standing. The issue was whether the car was deliberately driven at J, or whether the car got there by accident when M ducked to avoid an iron lid which J was attempting to throw at the car. The contention of the appellant was that the judge did not make it clear to the jury that it was upon the261 prosecution to prove the case and it was not for the appellant to prove that the happenings resulting in the death of J were an accident. In quashing the conviction, the court outlined what the proper direction to the jury should have been (at page 83): “Having regard to the evidence, it was pre-eminently a case where it was essential for the judge to make clear to the jury three possible positions in which the jury might find themselves, bearing in mind throughout that it was not for the accused to establish their innocence: that is to say (1) if they accepted the explanation of the accused, they must acquit. (2) Short of accepting that explanation, if it left them in doubt, they must acquit. (3) On consideration of the whole of the evidence they must be satisfied of the guilt of the accused of one or other of the crimes alleged against them, R.H. Luckhoo JA in Simmons referred to the prosecution's onus in such cases (24 WIR at page 155): “In dealing with what he [i.c. the trial judge] called the defence of an accident, he referred to it as a complete defence in law, and stressed that if the jury accepted that defence they would have to acquit; if they were in doubt about it, they would also have to acquit the accused. He stressed this on more than one occasion. In my view, up to that point the judge did not err. He was correctly directing the jury on the issue raised, but he was required to go further and to direct them that the onus was on the State to negative the issue or answer of accident. That, he did not do, and for this reason his summing-up was to that extent incomplete. I have not been unmindful of the fact that a summing-up is not meant to be a dissertation upon the law. For it to be meaningful it must have reference to the way in which a case has been conducted at the trial. ‘As one judge has wiscly expressed it, it is the effect of the summing- up as a whole that mattered and not any stated verbal formula used in the course of it. ‘The authorities are clear that an accused who puts forward an answer or explanation, or, put another way, raises an issue of accident to a charge of murder or manslaughter, does not assume any burden of proving that issue. A judge who directs a jury that a burden rests on an accused to prove accident will be guilty of serious misdirection. In this appeal the learned judge did not fall into error of directing that the onus of establishing accident was on the accused; but there was an inadequacy or incompleteness in his directions in omitting to remind the jury when dealing with the issue of accident raised by the accused that the onus was on the State to negative accident.” See also R v McInnes (1971) $5 Cr App Rep 51 at page 557. ‘The rule that where on a charge of murder there is evidence to support a plea of provocation the jury must find in favour of the262 West Indian Reports (1983) 34 WIR verdict of manslaughter if they are in doubt whether or not the prisoner was acting under provocation was reiterated in R v McPherson (1957) 41 Cr App Rep 213 at page 216, in R v Richards (1967) 11 WIR 102 at page 106 and in Maniram Lalloo v The State (1978) 30 WIR 342. In the instant case there was evidence on which to base the pleas of self-defence, provocation and accident. This appears in the testimony of the appellant in respect to the alleged threat to his life by the deceased and her possession of the knife; and, as to the ensuing struggle, corroborated by John. While the appellant did not specifi- cally account for the fatal wounds at the back, the possibility of their occurring in the struggle unintentionally by accident should have been placed before the jury. ‘The jury would on a proper direction have been entitled to disbelieve that evidence if they were satisfied that the appellant had made the incriminating admissions attributed to him by Sylvia and Ins Richardson and denied by him, when considered together with the medical evidence. ‘The trial judge did not direct the jury that the onus was on the State to disprove the pleas along the lines set forth in the above-mentioned cases. His general directions as to the burden of proof on the prosecution and the standard of proof were unimpeachable. His comment that “the [appellant] had in his defence sct forth excuses which he thinks will exculpate him from this offence” can pass muster. But he repeatedly referred to the special pleas as “defences”. As regards self-defence, his statement that “if the defence of self-defence does arise here ...” *” was a misdirection since, on the evidence, it did arise for determination by the jury. ‘The nearest he arrived at a proper direction was at the end of his summary in the supplemental remark “bearing in mind the duty resting on the State to negative all these defences” In regard to accident the judge invited the jury to decide whether the first wound to the front was caused by accident in the manner described by the appellant. That wound was justified by the appellant on the plea of self-defence, not accident. With reference to the other two, the posterior wounds, there was no invitation to the jury to consider whether these were caused in the scuffle by accident. His sole comment was that the appellant had not accounted for those wounds and he left the jury to speculate on their cause. Another important direction that the judge must give to a jury in appropriate cases is that an intention to kill is not inconsistent with the establishment of the plea, not only of self-defence, but also of provocation. Expression was given to that principle as far back as 1965 by Lewis JA in R v Bunting (1965) 8 WIR 276 at page 278: “In a case where provocation arises as a defence to a charge of murder it is proper and indeed necessary for the trial judge to tell the jury that murder is not established unless an intent to kill or toT cause grievous bodily harm is proved; but the converse proposition, 2 namely, that the accused is guilty of murder if such an intention is proved, is not necessarily correct, For where bodily harm results not from pre-meditation but solely from the loss of self-control induced by provocation the accused is guilty not of murder but of man- slaughter.” In R v Plinton (1965) 9 WIR 44 at page 48 Sir Herbert Duffus P criticised the trial judge for not telling the jury that, even if they found that there was an intention to kill or to cause grievous bodily harm, the offence might be manslaughter if the intention arose by means of provocation. In his directions to the jury the trial judge omitted to point out to them that the plea of provocation may still have arisen if the appellant had formed an intention to kill or inflict grievous bodily harm which resulted in death, but his intention to do so-arose from sudden passion q__ induced by the provocation. In our view this was a grave omission. In describing the nature of provocation the judge said: . before you have to consider the issue of provocation, the State must have proved beyond reasonable doubt that all the other elements of murder are present including malice aforethought. And @ as I understand counsel for the [appellant], if you find that the [appellant] was provoked, and it must mean that under provocation he inflicted these wounds, could mean nothing else, then that provocation says the [appellant], is sufficient to reduce this case from murder to manslaughter, because provocation means some act of f the deceased which would cause any reasonable person and actually caused the [appellant] sudden and temporary loss of self-control, rendering him so subject to self-passion as to make him for the moment, not master of himself.” ‘That was a misdirection which was clearly disapproved of in the 9 following passage in R v Bunting, 8 WIR at page 279: “The court observes that in each of these passages the learned judge used the phrase ‘and for the moment not master of his mind’, Having regard to the earlier categorical directions as to intention the fuse of this phrase was in our opinion likely to lead the jury to believe that the provocation required to reduce murder to man- slaughter must be such as to deprive the accused of his self-control to such an extent that at the time he struck the blow he was temporarily deprived of his mental capacity to form an intention 4 and therefore to form the intention to kill or to do grievous bodily harm. These directions tended therefore to emphasise rather than to modify the earlier misdirection. We considered that in the light of recent authorities it is desirable that the phrase ‘for the moment not master of his mind’ should be omitted in directing juries on the law of provocation. Care should264 ‘West Indian Reports (1983) 34 WIR also be taken in a case where provocation arises as a defence to avoid the use of expressions which suggest that the presence of intention in the mind of the accused must inevitably lead to a verdict of murder rather than manslaughter.” The proscription of that phrase was approved by this court in Antoine and Bass v R (1968) 13 WIR 289 at page 291, per Fraser JA and again in Julien v R (1970) 16 WIR 395 at page 400 where, on a consideration of the above cases, Fraser JA concluded and opined that: . the presence of an intention to kill or to do grievous bodily harm is contrary to the expression that the accused was ‘for the moment not master of his mind’ and the dictum of Lewis JA clearly gives effect to the new thinking on the subject. Because we accept his dictum as sound it is necessary for us to state what we now consider to be the proper definition of provocation arising as it does from R v Duffy [1949] 1 All ER 931 CCA, elaborated in Lee Chun Chuen v R [1963] 1 All ER 73 and amended by Rv Bunting, 8 WIR 276. This in our view, is the correct definition of provocation: “Provocation is some act or series of acts done or words spoken by the deceased to the accused which would cause in any reasonable person and actually causes in the accused, a sudden and temporary Joss of self-control, rendering the accused so subject to passion as to cause him to retaliate’ In Antoine and Bass v R this court, following and applying Bunting, held that the defence of provocation may arise where a person intends to kill or inflict grievous bodily harm if the intention arises from sudden passion involving loss of self-control by reason of provocation. Dealing with the point Fraser JA speaking for the whole court said (13 WIR at page 290): “For some years it has been accepted that an intention to kill or inflict grievous bodily harm does not necessarily satisfy the require ment of malice in cases of murder. A clear statement of this view is to be found in the oft-cited judgment of Lord Goddard in Attomey- General of Ceylon v Perera |1953] AC 200 where he said (at page 206]: ‘The defence of provocation may arise where a person does intend to kill or inflict grievous bodily harm but his intention to do so arises from sudden. passion involving loss of self-control by reason of provocation.” ‘This dictum was followed in Lee Chun Chuen v R [1963] 1 All ER 73 and a similar statement was made by Lewis JA in Rv Bunting (1965) 8 WIR 276 at page 278.” ‘We may add also, in Powell v R (1963) § WIR 557 at page $61 per Sir Clyde Archer P. Finally, in Maniram Lalloo v The State (1978) 30 WIR 342 Kelsick JA, speaking for this court in passing strictures on a similar misdirec-265 tion to that in Rv Bunting (1965) 8 WIR 276, declared that such a direction tends to confuse the jury by obscuring the fact that provocation may be present where there is an intention to kill. ‘We consider it important for the future guidance of judges to summarise the proper directions which should be given to the jury when the special “defences” or issues of self-defence, provocation or accident are raised cither directly by the defendant or indirectly from the evidence. In every such case the judge must, in addition to the general directions as to the onus of proof being on the prosecution, give a special direction that a further burden rests on the prosecution to negative beyond reasonable doubt the existence of these answers. The jury must be reminded that, when the prosecution does not discharge the onus, the verdict in respect of self-defence or accident should be an acquittal, and, in respect of provocation, manslaughter. ‘On the question of mens rea the judge should direct the jury that whereas an intention to kill negatives the plea of accident, this is not so in respect of self-defence and of provocation, where the pleas may succeed even though the defendant had formed the intention to kill. In this connection, when the issue is one of provocation, the judge should refrain from suggesting to the jury that for the “defence” to succeed the defendant must not have been “master of his mind”, thus implying (j) that he was incapable of forming the intention to kill; and (ji) the corollary that if he was “master of his mind” and had formed the intention to kill, he must be found to be guilty of murder and not of manslaughter. In relation to ground (i)(b) (ic. that the judge did not direct the jury adequately on circumstantial evidence) Feliance was placed on an ‘extract from the decision of the Jamaica Court of Appeal in R v Burns ‘and Holgate (1967) 11 WIR 110, at page 116, where the direction of Clover J in R v Elliott (Clarice) (1952) 6 Jamaica LR 173 at page 174 was approved. In both those cases, unlike the present, the case depended entirely on circumstantial evidence. In McGreevy v Director of Public Prosecutions (1972) 57 Cr App Rep 424, at pages 428, 432, 437, 438, the House of Lords per Lord Morris of Borth-y-Gest disapproved the first part of that direction, which they referred to as “the rule in Hodge’s case "[R v Hodge (1838) 2 Lew CC 227], and which is that, where the case for the prosecution or an essential ingredient of it depends wholly on the circumstantial evi- dence, there is a rule of law which requires the judge to give the farther conventional direction that the jury must not convict on such evidence unless they are satisfied that the facts proved are not only consistent with the guilt of the accused but also exclude every possible explanation other than the guilt of the accused. Ground of appeal (ii) impinges on, and overlaps, the previous grounds since the non-directions and misdirections complained of in the latter necessarily constituted a failure to put the defence fairly and adequately.266 ‘West Indian Report (1983) 34 WIR In our judgment the facts and circumstances of this case and the summing-up to the jury were not such as were contemplated by the a proviso to the guidelines expounded by Winn L] in R v Wheeler (1967) 52 Cr App Rep 28, so as to dispense with the requirement for specific directions on the’ special pleas. As we did not consider that no substantial miscarriage had actually occurred, this was not a fit case in which to apply the proviso to section 44(1) of the Supreme Court of Judicature Act and to affirm the conviction. For the above reasons we allowed the appeal. ‘Counsel for the appellant, readily and rightly so, agreed this was a case in which a retrial should be ordered. Appeal allowed; order for retrial.