R v Powell - [2014] SASCFC 48

SUPREME COURT OF SOUTH AUSTRALIA
(Court of Criminal Appeal)
R v POWELL
[2014] SASCFC 48
Judgment of The Court of Criminal Appeal
(The Honourable Justice Gray, The Honourable Justice Sulan and The Honourable Justice Peek)
23 May 2014
CRIMINAL LAW - PARTICULAR OFFENCES - OFFENCES AGAINST THE PERSON - HOMICIDE - MURDER - ACT
CRIMINAL LAW - EVIDENCE - CREDIBILITY - FAILURE TO PUT MATTER TO WITNESS
EVIDENCE - WITNESSES - IMPEACHING AND RE-ESTABLISHING CREDIT AND EVIDENCE IN CONTRADICTION - RE-ESTABLISHING CREDIT OF WITNESS
CRIMINAL LAW - EVIDENCE - CREDIBILITY - PRIOR CONSISTENT STATEMENTS
This is an appeal against conviction. The defendant was convicted following a trial by Judge alone of the offence of murder. The victim, BJ, was the infant child of the defendant’s de facto partner, Latara Hunt. BJ died as a result of brain injury caused by blunt cranio cerebral trauma. It was the prosecution case that the injuries sustained by BJ were inflicted deliberately and with intent to, at the least, cause grievous bodily harm. It was accepted at trial that the defendant was alone with BJ for a period immediately prior to the discovery of BJ’s injuries. The defendant gave evidence that Latara Hunt was also alone with BJ for an earlier period of ten minutes. Latara Hunt gave evidence that there was no occasion when she was alone with BJ. The Judge concluded that the defendant’s evidence regarding the ten minute period was a recent invention in an attempt by him to shift potential blame to Latara Hunt. On the appeal, two affidavits were tendered by the defendant that deposed that the defendant had provided this account of events prior to the trial and following his release on home detention bail.
Whether the Judge erred in concluding that the defendant’s evidence that Latara Hunt was alone with BJ for a ten minute period was a recent invention. Both parties accepted on the appeal that the suggestion that this evidence was a recent invention was neither advanced by the prosecution at trial nor put to the defendant in cross-examination. Whether the Judge erred in reversing the onus of proof on three important questions. Whether the Judge erred in failing to adequately consider an alternative verdict of manslaughter. Whether an acquittal should be ordered.
Held per Gray and Sulan JJ (Peek J agreeing) (allowing the appeal):
1.      There can be no doubt that the Judge used the expression recent invention as that expression is known to the law.
2.      There was no mention of recent invention at any time during the giving of evidence or during final addresses and recent invention was not a submission advanced by the prosecution.
3.      Affidavits tendered by the defendant on the appeal demonstrate the information that would have been available to the Judge had the defendant been given the opportunity to address the Judge’s criticisms.
4.      In arriving at his conclusion of guilt, the Judge proceeded on a fundamental misunderstanding affecting credibility. For this reason, there has been a substantial miscarriage of justice.
5.      The Judge failed to make adequate findings on the critical issue of Latara Hunt’s opportunity to inflict the fatal injuries.
6.      The complaints regarding a reversal of the onus of proof are better characterised as being, respectively, a consequence of the Judge’s rejection of the defendant’s credibility and reliability on the ground of recent invention, and as a finding not open on the evidence.
7.      The submission regarding the alternative verdict of manslaughter is misconceived. A review of the Judge’s reasons demonstrates an awareness of the broader issues relating to the defendant’s intention.
8.      It is not appropriate to enter an acquittal.
9.      Appeal allowed, verdict of guilty set aside, sentence imposed set aside and retrial ordered.
Nominal Defendant v Clements (1960) 104 CLR 476; Barca v The Queen (1975) 133 CLR 82, considered.

R v POWELL
[2014] SASCFC 48
Court of Criminal Appeal: Gray, Sulan and Peek JJ
GRAY and SULAN JJ:

This is an appeal against conviction.
The defendant and appellant, Brock Michael Powell, was charged on Information with the murder of Brendan-Junior Nathan Williams[1] at Melrose Park on 14 January 2012. On 31 January 2014, following a trial before a Judge alone in this Court, the defendant was convicted of the crime of murder.
[1] Brendan-Junior Nathan Williams is referred to throughout these reasons as BJ.
Introduction
The defendant had been living in a de facto relationship with BJ’s mother, Latara Lee Hunt, for some time before BJ’s death. They first met at school when Latara Hunt was aged 14 and the defendant 15. They entered into a short relationship which ended some months later. When Latara Hunt was aged 22 years, she made contact with the defendant through Facebook and their relationship recommenced in March 2011. After some months they took up residence in a flat at the rear of a house occupied by Latara Hunt’s mother, Karen Lee Hunt.
Latara Hunt had two children; a daughter, Destiny, born on 22 August 2006, and BJ, born on 3 November 2009. The children had been born from Latara Hunt’s previous relationships. About six to eight months after BJ’s birth, Latara Hunt separated from BJ’s father. Initially, BJ’s father had sole custody. After several months, informal arrangements were agreed that allowed Latara Hunt to have increasing access to BJ. At the time of BJ’s death, Latara Hunt had access for “three days on, three days off”.
On 13 January 2012, BJ was delivered by the partner of his father into Latara Hunt’s care for her three days of access. BJ spent the day watching television and playing. Latara Hunt arranged to go with her neighbour, Tiarra Bell, to the Victoria Hotel that evening. Prior to leaving home, Ms Bell came to the flat where she, the defendant and Latara Hunt all consumed alcohol. Ms Bell and Latara Hunt were drinking vodka mixed with a soft drink and the defendant was drinking whisky and coke. The defendant and Latara Hunt both smoked methylamphetamine and the defendant also smoked cannabis. The three went to the hotel at about 10.15 pm, where they each had three to four alcoholic drinks, returning to the flat at about 2.00 am on 14 January 2012. Latara Hunt’s brother, Michael Daniel Turrell, and two friends, Karim Suliman Kamara and Joshua Nevil Kelly, who were staying in Karen Hunt’s home, arrived at about the same time. At this time, Destiny and BJ were asleep in the lounge room of Karen Hunt’s home. Karen Hunt had been looking after the children while Latara Hunt was at the hotel and had put the children to bed in the lounge room.
Two markedly different versions of what then occurred were advanced at trial. Latara Hunt’s account was that the defendant went into the main house from the flat and came out carrying BJ. The defendant told Latara Hunt that he had put Destiny in her bed while he was getting BJ. Latara Hunt recounted that she had changed BJ’s nappy and that the defendant then put BJ to bed in the flat. Sometime thereafter, there was an argument between Latara Hunt and the defendant. Latara Hunt left the flat and dozed off in the house. Her evidence was that the defendant remained in the flat with BJ. Sometime later, she awoke to the defendant shaking her and saying that there was something wrong with BJ. She ran to the flat and found BJ on the corner of the bed. He was unresponsive and she noted that his head was the wrong way up. He was only wearing a nappy and she noticed small bruising under his left eye and a small bruise near his left ear. The defendant applied mouth to mouth resuscitation. Latara Hunt ran to get Karen Hunt. She then searched for her phone and rang 000 at 4.48 am. The defendant took the phone from her and continued to speak to 000 while Karen Hunt continued mouth to mouth resuscitation. They drove to the hospital, rather than waiting for an ambulance. On Latara Hunt’s account, there was no occasion when she was alone with BJ, but the defendant was alone with BJ for a time after the argument and her return to the house.
The defendant’s account was that on returning from the hotel, he went into the flat with Latara Hunt, but after about five minutes he went into the house to use the toilet. While in the house, he saw that BJ was grizzly and so took him to Latara Hunt in the flat. Latara Hunt told the defendant that she was going to change BJ’s nappy. He was not present while she did so. At this time, the defendant had returned to the house to again go to the toilet and he decided to put Destiny in her bed. He stayed with her until she went to sleep and was away from the flat for about ten minutes. When he returned to the flat, he found that Latara Hunt had tucked BJ into bed and BJ appeared to the defendant to be in the process of falling asleep. It was the defendant’s case that Latara Hunt had the opportunity of injuring BJ during the ten minute period while he was in the house with Destiny and Latara Hunt was alone in the flat with BJ.
BJ sustained numerous injuries, including injuries to the forehead, both temples, the right eye, both cheeks, both ears, the left side of the head, the hairline at the back of the head, the neck and the jaw. The cause of death was brain injury caused by blunt cranio cerebral trauma. The trauma produced subdural and subarachnoid haemorrhages, bruising and swelling to the brain, multi-focal immunoreactive axonal damage and retinal haemorrhages. A forensic pathologist considered that considerable force was required to have caused these injuries. It was the prosecution case that the injuries sustained by BJ were inflicted as opposed to accidental injuries. It was further said that the injuries had been inflicted deliberately and with intent to, at the very least, cause grievous bodily harm. It was the prosecution case that the Judge’s finding that the fatal injuries were not sustained by accident was open on the evidence, as was the finding that the fatal injuries were inflicted unlawfully and involved blunt force trauma to the head.
The prosecution case was that only the defendant and Latara Hunt had the opportunity to inflict the injuries in the period between about 2.15 am and 4.48 am on the morning of 14 January 2012. It was said that all other people at the premises that morning could be excluded beyond reasonable doubt as having any involvement in the killing.
The defendant was not involved in the disciplining of either Destiny or BJ. Generally, he had a passive role with the children and at no time had exhibited any violence towards them. The evidence established that he got on well with both children. It was not in dispute that the defendant had a good relationship with BJ and had never chastised the child. The defendant gave evidence and called evidence of his good character. He had no criminal antecedents. Witnesses attested to his good character.
When questioned later on the morning of BJ’s death by hospital staff and police, Latara Hunt and the defendant both gave a false account of what had occurred. They claimed to have been together at all relevant times in the flat when they had heard a thud and a whimper from BJ. There was a dispute at trial as to who took the lead in providing this account. Both agreed that they had lied. Several weeks later, Latara Hunt provided the police with a different account in which she stated that she and the defendant had not been together at all times in the flat and that the defendant had been alone with BJ after she left the flat following the argument.
The Judge, in his reasons for verdict, found that the defendant’s evidence at trial that Latara Hunt had been alone with BJ and as a consequence had an opportunity to inflict the injuries sustained by BJ was given for the first time during evidence. The Judge, in the course of his reasons, said:[2]
[2] R v Powell [2014] SASC 11, [84].
It is suggested I should disbelieve the [defendant’s] evidence that there were two occasions when he says he left the granny flat. In his initial interview with the police it is clear that he is only referring to one such occasion. The latter is a recent invention it is submitted.
On the appeal, counsel for the Director of Public Prosecutions accepted that the prosecutor had neither laid the foundation for, nor made a submission, that the evidence of the defendant was a recent invention.
In the course of his findings, the Judge concluded:
Ms Hunt did not commit the unlawful act or acts:
(a)I find Ms Hunt was not in the room for the period of time from her leaving the room after the disagreement with the [defendant] until the [defendant] came in to tell her BJ was not breathing.
In my view it does not matter that Ms Hunt is herself an unreliable witness. The reason for this is that on the key point as to her absence from the granny flat she and the [defendant] are both telling the same story. As they have both agreed on this point, I have come to the view that I can place importance on this evidence. I have earlier excluded any reasonable possibility that this act was committed some time before Ms Hunt put BJ to sleep in his bed, and I have excluded any reasonable possibility it was anybody else in the house apart from Ms Hunt and the [defendant].
(b)Ms Hunt was not alone with BJ for the 10 minutes suggested by the [defendant]. I disbelieve the [defendant] and find his evidence on that topic to be a recent invention.
As I have already discussed, the [defendant] gave evidence he left BJ alone with Ms Hunt for a ten minute period in the granny flat while he went to the bathroom and put Destiny to bed.
I conclude that the ten minute window suggested by the [defendant] in his evidence was a recent invention in an attempt by him to shift blame or potential blame to his partner at the time. It is not supported by an analysis of the evidence. I reject the [defendant’s] evidence on this aspect.
…
The [defendant] committed the unlawful act or acts on BJ. He was the only person with BJ for a period of somewhere in the region of one and a half to two hours, during which he had ample opportunity to inflict the injuries. I find this notwithstanding the evidence of the accused to the contrary.
The Judge did not identify the evidence relied upon in concluding that the defendant had attempted to shift the blame upon his partner. For reasons which we develop later, the Judge misunderstood the relevant question.
On the appeal, two affidavits to negate recent invention were admitted subject to an objection by the Director as to relevance. In one affidavit, the defendant deposed that following his release on home detention bail in March 2012, he had informed his immediate family as follows:
In the morning of the 14 January 2012 after our return from the Victoria hotel both BJ and Destiny were sleeping in the main house, at Winston Avenue. I informed my family that I had gone from the granny flat into the house on two occasions, after the first occasion I had left BJ with [Latara Hunt] in the [flat] and proceeded back into the main house to put Destiny to bed.
In the other affidavit, the defendant’s sister, Jasmine Lee Powell, deposed:
[The defendant] resided with his Grandmother at 18 Bell Street, Pennington. Whilst [the defendant] was still residing with his Grandmother, my father Michael Powell and my partner and I visited him. He informed us of the circumstances of 13-14 January 2012. This included the fact that he had gone into the Winston address twice, once more after leaving BJ with Latara Hunt.
This conversation occurred sometime shortly after 20 March 2012 and before July 2012. I recall this as the conversation occurred prior to my son being born, which was on 26 July 2012.
Whilst [the defendant] was on home detention he would also meet with Elizabeth Porter from Mangan Ey & Associates and go through various statements pertaining to his file. I was present for a number of these meetings.
In our view, both affidavits should be received notwithstanding the objection as to relevance. For reasons to be discussed later, they confirm that the Judge’s finding of recent invention was wrong and additionally they demonstrate the information that would have been available to the Judge had the defendant been given the opportunity to address the Judge’s criticisms.
On the appeal, counsel for the Director agreed that there was no basis for concluding that the suggestion of the defendant in his evidence that Latara Hunt had an opportunity to inflict the injuries to BJ was a recent invention.
The Judge was critical of the credibility and reliability of Latara Hunt. She acknowledged that she had lied both to hospital staff and to the police on the morning of 14 January 2012. In this respect, the Judge observed:[3]
Ms Hunt admitted in cross examination that she told Senior Constable Bell in an interview at the hospital that she was in the granny flat at the time the alleged incident occurred, and gave details about what occurred in the room at the time. The details she gave were very similar to those the [defendant] gave to hospital staff and in his interview with the police. She said she followed what the accused had said initially and repeated it.
On 2 March 2012 Ms Hunt amended her statement. She was cross-examined about some inconsistencies, in particular that she originally stated she was in the room. There were other inconsistencies within Ms Hunt’s evidence, however these were not directly relevant to the unlawful acts causing BJ’s death. Although her evidence contains inconsistencies and it might be dangerous to rely upon her as a witness on some aspects when there is no supporting evidence, she and the [defendant] in their sworn testimony both say he was the only person in the granny flat with BJ after Ms Hunt left following the argument.
[3] R v Powell [2014] SASC 11, [26]-[27].
The Judge’s conclusion also overlooks the possibility that the assaults on BJ may have occurred prior to the argument.
Against this background, it is convenient to turn to the issues on the appeal.
The Appeal
Counsel for the defendant contended that the Judge misidentified and, as a consequence, failed to address the critical issue in the trial. Counsel said that, as a consequence, there has been a miscarriage of justice. The cause for this misidentification lay in the finding by the Judge that the defendant had given an account that was a recent invention. It was said that this error led the Judge to fail to properly address the reliability and credibility of the defendant and also led the Judge to fail to consider the possibility that Latara Hunt was responsible for the injuries to BJ. Further complaints were advanced that the reasoning of the Judge demonstrated a reversal of the onus of proof and a disregard for the presumption of innocence. It was claimed that the Judge failed to adequately scrutinise Latara Hunt’s evidence. A complaint was advanced concerning the Judge’s approach to an alternative verdict of manslaughter. Finally, it was said that the verdict was unreasonable and amounted to a miscarriage of justice.
Counsel for the Director challenged each contention. It was said that even if it was a reasonable possibility that Latara Hunt was alone with BJ for ten minutes, it was not a reasonable possibility that the injuries were inflicted in that time. Particular reliance was placed on the suggested evidence that if this had occurred, significant changes in BJ’s behaviour would have been readily observable by the defendant on his return from his second trip inside the house.

As noted above, counsel acknowledged that the evidence of the defendant of having left BJ with Latara Hunt for about ten minutes was not a recent invention. Counsel argued that although the Judge had used the term recent invention, he was not doing so in the strict sense of the doctrine of recent invention as known to the law. Counsel pointed out that the Judge had made it clear in his reasons that at all times the prosecution carried the onus and burden of proof, and refuted each of the suggested bases said to demonstrate a reversal of the onus. Counsel contended that a review of the reasons disclosed that the Judge recognised the need for close scrutiny of Latara Hunt’s evidence. It was said that the Judge did so. It was the Director’s contention that on any view the injuries sustained supported a conclusion that whoever inflicted those injuries had a murderous intent. Finally, it was submitted that there was no reason to doubt the reasonableness of the verdict of guilty.
During the course of submissions, counsel for the defendant advanced the contention that once it was shown that it was a reasonable possibility that Latara Hunt had been alone with BJ and had the opportunity to inflict the injuries sustained, it followed from the Judge’s findings about it being dangerous to rely on her evidence, unless that evidence was supported, that this Court should not only allow the appeal, but should direct an acquittal. The Director joined issue, asserting that even if the conviction was to be set aside, no adequate basis had been established for an acquittal.
Recent Invention
The term “recent invention” has been recognised as having a particular significance. When it is suggested to a witness that their version of events is a recent invention, it is then open for counsel to lead evidence to establish that the witness has given their version of facts to others at an earlier point in time. That evidence may establish consistency in the account of the witness and can rebut the suggestion of recent invention. In this case, a suggestion of recent invention would have meant that the defendant contrived his evidence to provide himself with a defence to the charge or to provide a version of events from which the Court could conclude that there was a reasonable possibility that Latara Hunt may have caused the injuries to BJ. If recent invention had been suggested in that way, it would have been permissible for the defence to call evidence to establish that the account was given at a time when it could not be suggested that the evidence was a recent fabrication.
In Nominal Defendant v Clements,[4] the High Court discussed the topic of recent invention and the consequences which may flow if a suggestion of recent invention is made. The judgments make it clear that if the credit of a witness as to a material fact is impugned as being a late invention or reconstruction, the consequence is that evidence of previously consistent statements may be admissible if made at a time sufficiently early so as to be inconsistent with the suggestion of recent invention.
[4] Nominal Defendant v Clements (1960) 104 CLR 476.
In order for an attack upon a witness that their evidence is a recent invention to be of evidential value, the witness must be confronted with and given the opportunity to rebut the suggestion. Evidence is then admissible to rebut the suggestion and witnesses can be called to establish that the witness’ account was not a recent invention and that his account has been consistent. As Dixon CJ observed in Nominal Defendant v Clements:[5]
… The rule of evidence under which it was let in is well recognized and of long standing. If the credit of a witness is impugned as to some material fact to which he deposes upon the ground that his account is a late invention or has been lately devised or reconstructed, even though not with conscious dishonesty, that makes admissible a statement to the same effect as the account he gave as a witness if it was made by the witness contemporaneously with the event or at a time sufficiently early to be inconsistent with the suggestion that his account is a late invention or reconstruction. …
[5] Nominal Defendant v Clements (1960) 104 CLR 476, 479.
In our view, there can be no doubt that the Judge used the expression recent invention as that expression is known to the law. Any possible doubt as to this question is resolved by an examination of the earlier extracted paragraph from the Judge’s finding that the defendant’s evidence about the ten minute window was a recent invention in an attempt by him to shift blame or potential blame to Latara Hunt.
It is also relevant to record that there was no mention of recent invention at any time during the giving of evidence or during final addresses. The first reference to recent invention was made by the Judge in the reasons for his verdict. Consequently, neither counsel had the opportunity to put submissions to the Judge to correct his mistaken view.
Had the Judge raised the matter with counsel, counsel for the Director would have indicated that recent invention was not a submission advanced by the prosecution. More importantly, counsel for the defendant could have informed the Court that this was a matter on which the defendant had instructed his solicitor prior to the trial. Further and importantly, it was an account that the defendant had given to his immediate family members soon after his release on home detention bail. As a consequence, the serious misapprehension under which the Judge laboured would have been dispelled. It would not have been open to the Judge to have concluded that the defendant had recently invented this account for the purposes of shifting blame to Latara Hunt. It necessarily follows that the Judge’s findings as to the defendant’s lack of credibility and reliability are seriously flawed.
In arriving at his conclusion of guilt, the Judge proceeded on a fundamental misunderstanding affecting credibility. For this reason alone, in our view, there has been a substantial miscarriage of justice. Additionally, as discussed, the defendant was denied procedural fairness in respect to a critical aspect of the trial. The prosecution case was circumstantial and a finding adverse to the defendant’s credibility and reliability was critical to the recording of a conviction. We do not consider that in these circumstances there can be any application of the proviso.
Failure to Address the Real Issue
The Judge, in the course of his reasons, observed:[6]
On 2 March 2012 Ms Hunt amended her statement. She was cross-examined about some inconsistencies, in particular that she originally stated she was in the room. There were other inconsistencies within Ms Hunt’s evidence, however these were not directly relevant to the unlawful acts causing BJ’s death. Although her evidence contains inconsistencies and it might be dangerous to rely upon her as a witness on some aspects when there is no supporting evidence, she and the accused in their sworn testimony both say he was the only person in the granny flat with BJ after Ms Hunt left following the argument.
[Emphasis added.]
[6] R v Powell [2014] SASC 11, [27].
It is apparent from the above observation that the Judge focused upon the question of whether the prosecution had proved that the defendant had killed BJ after Latara Hunt went into the house. By doing so, the Judge did not address the critical issue of whether the prosecution could establish that only the accused had the opportunity to cause the death of BJ. On the defendant’s evidence, Latara Hunt had the opportunity to have caused the death. The Judge failed to address the possibility that BJ’s injuries may have been caused before the argument that resulted in Latara Hunt leaving the flat and going to the house. Counsel acknowledged that the Judge summarised defence counsel’s submissions in relation to the importance of Latara Hunt’s credit on the issue of opportunity. In that respect, the Judge observed:[7]
[Defence counsel] referred to the evidence of Ms Hunt telling her mother about an incident earlier in the day. Ms Hunt denies that that conversation took place. He referred to Ms Hunt’s evidence in relation to the fact that a makeshift nappy was not used, which is contrary to the evidence of Karen Hunt. Ms Hunt insisted that it was an ordinary disposable nappy and [defence counsel] queries why she would do that in view of the evidence of Karen Hunt. He answers this by saying that it is an attempt to distance herself by telling a lie. Why she would want to distance herself is a matter of speculation. However, whoever inflicted the injury to the genitals and the injury to the buttocks had to take the nappy off. The evidence is that the accused never changed nappies. [Defence counsel] asked me to treat Ms Hunt’s evidence with great reservation in any respect where there were inconsistencies with other evidence. He submitted that it was more than just a matter of credit because it related to potential opportunity for her to have been involved in some way or other with the injuries.
The difficulty that arose was that the Judge did not appear to have grappled with the need to make a finding in respect to the issue of Latara Hunt’s opportunity to cause the death as an indispensable step in the reasoning to guilt. Rather than properly addressing such a finding, the Judge avoided this critical issue by concluding, as noted above, that “Ms Hunt was not alone with BJ for the 10 minutes suggested by the accused. I disbelieve the accused and find his evidence on that topic to be a recent invention.”[8]
[7] R v Powell [2014] SASC 11, [101].
[8] R v Powell [2014] SASC 11, [10] of “The findings”.
In order to find that the defendant was the only person who had the opportunity to cause the fatal injuries, the Judge had to exclude as a reasonable hypothesis that on the defendant’s evidence, Latara Hunt had the opportunity. As earlier noted, the Judge considered it dangerous to rely on the evidence of Latara Hunt unless it was supported. Insofar as Latara Hunt asserted that the defendant did not go back into the house and leave her alone for ten minutes, her evidence was unsupported. Once it is understood that the Judge’s conclusion of recent invention cannot be sustained, it follows that the Judge failed to make adequate findings on the critical issue of Latara Hunt’s opportunity to inflict the fatal injuries. On this topic, it is of assistance to recall the observations of Gibbs, Steven and Mason JJ in Barca:[9]
… However, although a jury cannot be asked to engage in groundless speculation it is not incumbent on the defence either to establish that some inference other than that of guilt should reasonably be drawn from the evidence or to prove particular facts that would tend to support such an inference. If the jury think that the evidence as a whole is susceptible of a reasonable explanation other than that the accused committed the crime charged the accused is entitled to be acquitted. The learned trial judge told the jury that there was no evidence that Carmello Barca was involved in the killing; this was incorrect, for there was some circumstantial evidence — far too slight, it is true, to support a positive finding of guilt — pointing to his involvement. …
[9] Barca v The Queen (1975) 133 CLR 82, 105.
Onus of Proof and Presumption of Innocence
Counsel for the defendant submitted that on three important questions, the Judge reversed the onus of proof. The first concerned the earlier referred to finding:[10]
On 2 March 2012 Ms Hunt amended her statement. She was cross-examined about some inconsistencies, in particular that she originally stated she was in the room. There were other inconsistencies within Ms Hunt’s evidence, however these were not directly relevant to the unlawful acts causing BJ’s death. Although her evidence contains inconsistencies and it might be dangerous to rely upon her as a witness on some aspects when there is no supporting evidence, she and the accused in their sworn testimony both say he was the only person in the granny flat with BJ after Ms Hunt left following the argument.
[Emphasis added.]
It was contended that the Judge, in the emboldened passage, had assumed that the fatal injuries occurred after Latara Hunt went inside the house.
[10] R v Powell [2014] SASC 11, [27].
The second occasion related to the following finding of the Judge:[11]
However he became somewhat defensive when probed as to some of the areas of his evidence. In particular I thought his demeanour changed markedly when he was pursued in cross-examination on the topics of the suggested 10 minute window of opportunity for Ms Hunt to have been alone with BJ and why he had not mentioned this in his interview. He gave two unsatisfactory answers to why he had not mentioned the point earlier. Likewise he became defensive in his explanation of how he followed the lead of Ms Hunt in relating the events at the hospital. There is evidence from the hospital staff that shows he is wrong in this regards. She had nothing to tell. She was not present. The accused acknowledges this but maintains against all logic that she was relating what happened. All of those matters combined cast doubts upon the reasonableness of the version of events given by the accused in his evidence.
[Emphasis added.]
Again it was contended that the Judge, in the emboldened passage, had assumed the rejection of the defence case that Latara Hunt had the opportunity to cause the fatal injuries.
[11] R v Powell [2014] SASC 11, [63].
The third complaint related to the following finding of the Judge:[12]
I find that the presence of the ventolin apparatus, phone charger, scissors and ice pack on the bed, the upended red chair, the speaker facing the wrong way, and the upended toy basket indicate some incident had occurred in the flat prior to the accused alerting Ms Hunt to BJ not breathing. The only person who could be responsible for the disarray was the accused. These items were not in those positions prior to Ms Hunt leaving the granny flat to sleep on the couch in the main house. The accused’s evidence is that he did not move them. No-one else could have done so. He remembered them as being in different positions earlier, and would have been unable to lie on the bed, as he said he did, with those items on it. I reject Mr Boucaut’s submission that these items could have been placed there during the resuscitation attempts while Ms Hunt and her mother were in the room. There is no evidence of that. For whatever reason the accused placed these items on the bed after he committed the unlawful acts in his assault of BJ.
It was pointed out that all witnesses denied any responsibility for the items being in the position in which they were found. It was further contended that the Judge did not identify any relationship between the position of the items and the commission of the crime. In these circumstances, it was said that the placing of the items on the bed and their state had no relevance to any fact in issue. The only basis on which it was claimed the Judge could attribute responsibility to the defendant was an assumption of guilt.
[12] R v Powell [2014] SASC 11, [11] of “The findings”.
We do not consider that it is appropriate to characterise any of the three complaints as amounting to a reversal of the onus of proof. In respect of the first two matters, in our view, they are a consequence of the Judge’s rejection of the defendant’s credibility and reliability on the ground of recent invention, and his consequent finding that Latara Hunt had no opportunity to inflict the fatal injuries. In respect of the third matter, the position of the items on the bed, it is our view that the conclusion of the Judge was not open and that the evidence was equivocal. This is better characterised as a finding not open on the evidence, rather than a reversal of the onus of proof.
The Need to Scrutinise Latara Hunt’s Evidence
The only persons with the possible opportunity to inflict the fatal injuries were the defendant and Latara Hunt. Either the injuries were inflicted by the defendant, by Latara Hunt, or by them both together. It was common ground that both Latara Hunt and the defendant initially lied in giving an account that they were together at all relevant times. Plainly, there was a need to scrutinise both the evidence of Latara Hunt and that of the defendant closely. The Judge’s approach to the review of the defendant’s evidence was compromised by his error as to recent invention. His approach to the evidence of Latara Hunt’s evidence was flawed when he wrongly concluded that she had no opportunity to inflict the fatal injuries. As discussed above, this conclusion was arrived at simply on the rejection of the defendant’s evidence and, in particular, the Judge’s characterisation of that evidence as a recent invention designed to cast blame on Latara Hunt.
Counsel for the defendant complained of other topics on which it was said that Latara Hunt’s evidence was not closely scrutinised. Attention was drawn to conflicts between the evidence of Latara Hunt and her mother, Karen Hunt. It was said that the Judge in his reasons appeared to assume that Latara Hunt’s credibility and reliability was not critical to the central issues. We agree with this submission. As discussed above, the Judge was critical of Latara Hunt’s evidence, but having reached his conclusions on the topic of recent invention, did not consider it necessary to further consider any involvement that she may have had in the infliction of the fatal injuries.
Manslaughter
Counsel for the defendant submitted that when addressing the possibility of manslaughter, the Judge restricted his consideration to the impact of the ingestion of alcohol and drugs on the formation of a murderous intent. It was claimed that the Judge failed to consider the evidence of good character, the absence of evidence of motive and the absence of any evidence of premeditation. Attention was drawn to the defendant’s conduct in attempting to revive BJ and his desperation to rush the child to hospital.
A review of the Judge’s reasons demonstrates an awareness of these broader issues. As the Judge concluded:[13]
I have considered whether because of the accused being affected by alcohol and drugs inferences as to intent, which might otherwise be drawn, should not be drawn. I find at the time he inflicted the injuries, particularly the blunt trauma to the head causing death, the accused acted with a murderous intention. Those blows, on the expert evidence, must have been delivered with considerable force. The number and extent of the injuries allow me to draw the inference as to his murderous intention.
The accused had no motive to kill BJ or cause him grievous bodily harm and none was seriously suggested by the prosecution. The evidence as to his character is to the contrary as he had formed a close relationship with BJ and cared for him in a loving way. He was to all outward appearances a person of good character. I have taken that into account.
He may have become angry as a result of the argument with Ms Hunt and may, because of his consumption of alcohol and drugs, have exercised less self control than he would normally.
From the number and extent of the injuries it was a vicious attack. The medical evidence shows the degree of force applied was substantial. Whilst out of character for the accused it nevertheless followed several hours during which alcohol was consumed and drugs taken.
In our view, this submission is misconceived.
[13] R v Powell [2014] SASC 11, [16]-[17] of “The findings”.
Miscarriage of Justice
Counsel for the defendant submitted that there was a risk of a miscarriage of justice. For the reasons discussed above, we consider that there is such a risk, primarily because of the Judge’s misapprehension concerning recent invention, the consequence of that misapprehension on his consideration of critical issues in the trial and the adverse impact of that misapprehension on the question of the defendant’s reliability and credibility. Counsel for the defendant submitted that, in all the circumstances, this Court should reach the conclusion that there is no prospect of the prosecution obtaining a verdict of guilty of murder or manslaughter and a verdict of acquittal should be directed.

Counsel for the Director contended that in the event that the appeal was allowed, a retrial should be ordered. It was said that the prosecution case could be distilled to the following propositions:
-The injuries sustained by BJ were inflicted injuries as opposed to injuries sustained by accident or through the rough and tumble of play.
-The injuries were inflicted deliberately and with intent to, at the very least, cause grievous bodily harm. Proof of this fact relied on the nature and number of injuries sustained by BJ.
-There was no lawful excuse for the infliction of the injuries.
-The consequential effects of the injuries would have been obvious to any person coming into contact with BJ. Those effects would have manifested themselves immediately upon infliction.
-BJ was observed to be uninjured when the defendant took him to the flat at about 2.15 am. Neither the defendant nor Latara Hunt observed anything untoward at that time.
-Only the defendant and Latara Hunt had the opportunity to inflict the injuries in the period between approximately 2.15 am and 4.48 am, when the 000 call was made.
-All other people at the house could be excluded beyond reasonable doubt as having any involvement in the killing.
-Latara Hunt could be excluded beyond reasonable doubt of having any involvement in the killing. She could be excluded on the strength of her own evidence, but importantly, could be excluded on the basis of the defendant’s own account that BJ exhibited no signs of distress or injury when Latara Hunt left the flat.
The Director pointed out that while there was a difference in the versions given by the defendant and Latara Hunt about whether or not the defendant made a second visit to the house, both witnesses were in agreement that when BJ was eventually put to bed, he displayed no signs of injury or discomfort as might be expected if any or all of the injuries had been inflicted by that stage.
Attention was drawn to the defendant’s evidence that when he returned to the flat, Latara Hunt was standing at the foot of BJ’s bed. BJ was tucked into bed and “was in the process of falling asleep, so he’s a little bit awake”. He could see BJ’s face. He said goodnight to BJ. BJ was not making any noises. He said BJ seemed “fine”. The light was on.
Counsel for the Director drew attention to the evidence that within minutes of BJ being put to bed, the defendant and Latara Hunt argued. The argument led to Latara Hunt leaving the flat and going into the main house. Her departure from the flat left the defendant alone with BJ. It was counsel’s contention that the only rational conclusion that could be drawn from that evidence was that the fatal injuries were inflicted after Latara Hunt left the flat. That is an argument to be considered by the Court after hearing the evidence and observing the witnesses.
The charge is serious. In our view, the evidence is capable of supporting a finding of guilt. Upon a retrial, the Court will be required to make credibility findings in relation to Latara Hunt’s evidence and the defendant’s evidence, whether from this trial or from the retrial. That assessment can only be made after the Court has had the opportunity of seeing and hearing the witnesses. It is not appropriate for this Court to enter an acquittal. We would order a retrial.
Conclusion
We would allow the appeal, set aside the verdict of guilty, set aside the sentence imposed and order a retrial.
PEEK J. I would allow the appeal and order a re-trial. I agree in substance with the reasons of Gray and Sulan JJ.