R. v. ATTA

Granville Sharp J.A. delivered the judgment of the Court:

The only point raised in support of this appeal is that the learned Judge, who sat with assessors, misdirected himself as to the law relating to provocation, the argument of learned counsel for the appellant being that if the learned Judge had properly directed himself in this regard he would have adjudged the appellant guilty not of murder but of manslaughter.

(His lordships stated the facts, and proceeded:)

Thus the issue for the consideration of the assessors and the learned Judge-and the only issue - was whether the provocation alleged (that is to say, provocation as our law understands the term) was such as, in the circumstances, sufficed to reduce the appellant's crime from murder to manslaughter.

[p.339]

In his summing up to the assessors on this issue the learned Judge appears to have proceeded with considerable care. He drew their attention to the law and read to them every section of the Criminal Code that could assist them in their deliberations, and he did not neglect to explain to them for the purposes of section 252(1)(d) that "'an ordinary person” shall mean an ordinary person of the community to which the accused belongs.' He then proceeded to deal with, and to comment upon, the evidence, and he left the matter to them with the following concluding direction:- "If the deceased only used words of abuse and slapped accused on the face, would this be sufficient provocation? You may think not. Alternatively, if you think that accused's story is true and that deceased attacked him with a cutlass, would this be sufficient provocation?"

With very great respect to the learned Judge, we think that at this stage his summing-up became incomplete. We think that he should have put it more clearly that what they had to consider was whether the words of abuse and an accompanying slap on the face would, in their view, be likely to deprive the accused (as a person of ordinary character, and being in the circumstance in which he was) of the power of self-control. Such a direction necessarily involves the question whether the accused was a person of ordinary character. It involves also an examination of the circumstances in which he was (which words include a consideration of his general circumstances) and of the community to which he belonged. We felt that it was a mistake at this stage to leave the assessors with an incomplete understanding, of' what it was that they had to consider, and at t