The Judicial Committee of the Privy Council in London has quashed the death sentence imposed on Police Constable Dave Burnett, who was convicted of the murder of a patron at the Outrageous in Red Fete at Pier 1, Chaguaramas, on January 25, 2004.
The one-day appeal was heard and determined on Wednesday. The appeal was allowed, but the reasons for the decision were reserved. The T&T Guardian was informed that the appeal succeeded on the ground that the trial judge did not properly put the issue of provocation in his summation to the jury. The Law Lords ordered that the matter be remitted to the T&T Court of Appeal, with a direction that the death sentence be quashed, and at the same time, the local court must decide if Burnett should be retried or set free. That means that Burnett, who was last assigned to Western Division, and who had been on death row for more than three years, will be removed to the remand yard to await the decision of the Court of Appeal.
Normally, the Privy Council would either dismiss an appeal, or quash a conviction and send it back for retrial. It is not often that the Law Lords leave the matter in the hands of the Court of Appeal on a matter which does not have the element of diminished responsibility. The appeal was heard before Lords Phillips, Saville, Roger, Walker, and Mance. Burnett was represented by Lord Donald Thomas, who also represented him in the T&T Court of Appeal. The State was represented by English barrister, Howard Stevens, and instructed by John Almeida. Burnett, 35, of St Barb's Road, Belmont, was sentenced to death by Justice Ian Brook in the Port-of-Spain Third Criminal Court on March 21, 2006. He was found guilty of the murder of Kevin Cato who was fatally shot during the Outrageous in Red Fete at Pier I. He was represented at his trial by Pamela Elder, SC.
At the appeal before Justices Roger Hamel-Smith, Stanley John and Paula Mae Weekes, Burnett was represented by Lord Thomas. The court, after hearing submissions, dismissed the appeal and affirmed the death sentence. Burnett, who had 13 years' service in the Police Service, appealed to the Privy Council and got special leave to appeal, as his appeal was considered one likely to succeed.
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.
