Murder conviction upheld as there was no evidence of provocation and loss of self-control for judge to direct jury on that defence

Criminal law – murder – appeal against conviction – whether trial judge erred in his decision to refuse to leave provocation for the consideration of the jury – deceased was the wife of the appellant – both worked for the same company – marriage was in very serious difficulty – deceased told appellant that she wished to divorce him and appellant was trying to keep marriage going – appellant made arrangements to secure alternative accommodation for himself – on evening of incident, appellant met a friend and discussed the breakdown of the marriage – after meeting, appellant’s friend called appellant to say to have a clear head and not to start arguing with deceased – message sent via facebook by appellant to his friend stating that he really wants to stab - during phone conversation, appellant said, Sorry, I killed Anne, now I’m going to kill myself – emergency services called – deceased was found dead – appellant had a knife protruding from him – trial judge concluded that issue of provocation was not a matter of discretion but a question of law insofar as the role of the trial judge is to ascertain whether there is evidence that meets the legal ingredients of the defence – whether production of the knife in the circumstances was capable of constituting a provocative act – whether there was evidence from all the circumstances that the deceased’s production of a knife had in fact provoked the appellant to lose self-control and intentionally inflict the fatal injuries – insufficient evidence in support of the defence to warrant leaving it to the jury – appellant offered detailed account and advanced the case that he had not inflicted the injuries – not merely the absence of an account which might support the elements of provocation defence but an account which conflicts with them – act of producing a knife cannot in and of itself be said to constitute provocation without reference to the context – no evidence of a loss of self-control – appeal dismissed.