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…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading R v Powell

Details

AGLC: R v Powell [2014] SASCFC 48
Case: [2014] SASCFC 48
Decision Date: 23 May 2014

CaseChat Overview and Summary

This case concerned an appeal against a conviction for murder. The appellant, the defendant, and Latara Hunt were the only individuals with the opportunity to inflict the fatal injuries upon the deceased. Both the defendant and Latara Hunt had initially provided false accounts of their whereabouts. The central dispute revolved around the credibility of the defendant's evidence and the extent to which Latara Hunt's own evidence had been adequately scrutinised by the trial judge, particularly in light of the defendant's defence which suggested Latara Hunt may have been responsible for the injuries.

The legal issues before the appellate court included whether the trial judge had erred in his assessment of the defendant's credibility by finding his evidence to be a "recent invention" designed to shift blame. Furthermore, the court considered whether the trial judge had failed to adequately scrutinise Latara Hunt's evidence, particularly concerning her opportunity to inflict the fatal injuries, and whether this constituted a flawed approach to the evidence. The court also examined whether the trial judge had sufficiently considered all relevant factors when addressing the possibility of manslaughter, beyond just the impact of alcohol and drugs on the formation of intent.

The appellate court found that the trial judge's rejection of the defendant's credibility on the ground of recent invention was an error, and that this error compromised his review of the defendant's evidence. The court also agreed that the trial judge's conclusion that Latara Hunt had no opportunity to inflict the injuries was not open on the evidence and was a consequence of rejecting the defendant's testimony. The court determined that the trial judge's assessment of Latara Hunt's evidence was flawed and that her credibility was indeed critical to the central issues. While acknowledging the trial judge's awareness of broader issues concerning manslaughter, the court ultimately concluded that a miscarriage of justice had occurred.

The court allowed the appeal, set aside the verdict of guilty and the sentence imposed, and ordered a retrial. The appellate court held that the evidence was capable of supporting a finding of guilt, and that a proper assessment of credibility could only be made by a court that had the opportunity to see and hear the witnesses. Therefore, an acquittal was not appropriate.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

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

Decision

Reasons for decision

PEEK J

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. I would allow the appeal and order a re-trial. I agree in substance with the reasons of Gray and Sulan JJ.

Ratio Decidendi

Legal Principle Established

Established by: PEEK J

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