The Judicial Committee of the Privy Council, in a written judgment, said former High Court judge, Ian Brook, got it all wrong when he decided not to put provocation to the jury in the trial of PC Dave Burnett who was charged with killing a patron at the Outrageous in Red fete at Pier I, Chaguaramas.
According to the Law Lords, the trial judge usurped the function of the jury. "It was for the jury to decide whether and to what extent to accept the evidence of the appellant, in light of the other evidence put before them," the Privy Council added. The appeal was heard before Lords Phillips, Saville, Rodger, Walker and Mance. The Law Lords allowed the appeal on July 15, but they have just given reasons for their decision. The Privy Council has remitted the case to the T&T Court of Appeal to determine whether a retrial should be ordered. That has not yet happened. On March 21, 2006, Burnett was sentenced to death by Brook in the Port-of-Spain High Court for the murder of Kevin Cato at the Pier I fete on January 24, 2004. He lost his appeal before the T&T Court of Appeal on July 19, 2007, and the policeman appealed to the Privy Council.
At the trial, Burnett gave evidence. His case was that he had acted in self-defence, fearing for his life. The prosecution's case was that Burnett shot and killed Cato after someone bumped into him while he was dressed in plain clothes and on duty at the fete. Before the judge's summing up, the prosecutor submitted that the issue of provocation should be left to the jury, a submission that was strongly opposed by defence counsel. Brook ruled that the issue of provocation should not be left to the jury.In his judgment, Lord Saville said the issue of provocation was one for the jury, and not for the trial judge to assess. He said: "Similarly, it was for the jury to draw the appropriate inferences from the evidence. In other words, the trial judge erred in failing to leave the issue of provocation to the jury; instead, he wrongly took over the task, not only of assessing the credibility and reliability of a crucial part of the appellant's evidence, but also of drawing the appropriate inferences from the evidence as a whole."
The case
Burnett was on duty at the Outrageous in Red fete at Pier 1 dressed in plain clothes. He got into an altercation with one of Cato's friends, Ryan Solomon. It was alleged that he was slapped and bumped, after which he drew his service revolver and shot both Cato and Solomon. He claimed that both men approached him armed with knives. After the shooting, one witness claimed that Burnett bragged that he was a policeman. Another of Cato's friends said they saw Burnett standing over Cato's body with a smoking gun in his hand. Cato died from his injuries that same night, and according to the post-mortem report, he died from a shot to the left side of his chest.
