R v Powell - [2014] SASC 11

SUPREME COURT OF SOUTH AUSTRALIA
(Criminal)
R v POWELL
Criminal Trial by Judge Alone
[2014] SASC 11
Judgment of The Honourable Justice Anderson
31 January 2014
CRIMINAL LAW - PARTICULAR OFFENCES - OFFENCES AGAINST THE PERSON - HOMICIDE - MURDER - EVIDENCE - CIRCUMSTANTIAL EVIDENCE
CRIMINAL LAW - EVIDENCE - MATTERS RELATING TO PROOF - STANDARD OF PROOF - CIRCUMSTANTIAL EVIDENCE
CRIMINAL LAW - GENERAL MATTERS - CRIMINAL LIABILITY AND CAPACITY - DEFENCE MATTERS - INTOXICATION - PARTICULAR OFFENCES - MURDER
CRIMINAL LAW - GENERAL MATTERS - CRIMINAL LIABILITY AND CAPACITY - DEFENCE MATTERS - ACCIDENT
Criminal trial by Judge alone. Accused charged with murder and pleaded not guilty. Victim was the 2 year old child of the accused's partner. Prosecution case is circumstantial. Prosecution alleges that the accused beat the child to death while alone with the victim in the home of the accused and child's mother in the early hours of 14 January 2012. Defence case denied the accused committed the unlawful act. Question of intoxication and whether there was intention to cause death or grievous bodily harm.
Held: Accused guilty of murder. From the totality of the circumstantial evidence, there is no reasonable possibility that the accused did not commit the unlawful act on the victim. The accused intended to kill the victim or intended to cause him grievous bodily harm.
Criminal Law Consolidation Act 1935 (SA), referred to.

R v POWELL
[2014] SASC 11
Criminal
ANDERSON J.
Introduction

Brock Michael Powell is charged with murder. The particulars alleged are that on 14 January 2012 at Melrose Park he murdered Brendan-Junior Nathan Williams who was the son of Mr Powell’s partner. He will be referred to as BJ. He was two years old at the time.
The case presented by the prosecution against the accused is entirely circumstantial. I cannot find the accused guilty of murder unless I am satisfied that on the evidence there is no reasonable hypothesis consistent with innocence. If there is any reasonable explanation other than that the accused committed the murder of Brendan Junior then the accused must be acquitted of that charge.
I will set out later the basis of the circumstantial case as alleged by the prosecution. I remind myself at this stage, however, that when dealing with these matters there may be items of circumstantial evidence which carry significant weight by themselves but others, again by themselves, may be quite weak by comparison. I have to consider the weight of the circumstantial evidence based on its combined strength. That involves an assessment of all the facts which have been proved and which are probative of the inference contended for by the prosecution, namely, the guilt of the accused.
The crime of murder is committed when a person deliberately and unlawfully causes the death of another person while at the same time intending to cause death or grievous bodily harm. The matters which the prosecution must prove beyond reasonable doubt are:
1.That the act or acts of the accused caused…

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] SASC 11
Case: [2014] SASC 11
Decision Date: 31 January 2014

CaseChat Overview and Summary

The case of R v Powell involved the accused being charged with the murder of BJ. The dispute centred on the events leading to BJ's death and whether the accused was criminally responsible for the outcome. The matter was heard in the Supreme Court. The court needed to determine whether the accused was guilty of murder, the nature of the evidence presented, and whether intoxication could be considered a mitigating factor or defence. It was crucial to assess the reliability of the circumstantial evidence and the standard of proof required to establish the accused's guilt beyond reasonable doubt.

The court evaluated the evidence presented by both the prosecution and the accused. It was noted that the room where BJ was found remained undisturbed, which was relevant to the integrity of the evidence. The accused provided a version of events that differed significantly from the prosecution's account. The court had to weigh the credibility of the accused's testimony against the available evidence. The accused's claim of intoxication was also examined to determine its impact on his capacity to form the necessary intent for murder. The court had to decide whether the circumstantial evidence, including the timeline of events and the condition of the room, was sufficient to prove the accused's guilt.

The Supreme Court found that the circumstantial evidence, combined with the accused's inconsistent statements, was sufficient to establish the accused's guilt beyond reasonable doubt. The court rejected the accused's version of events as implausible and not supported by the evidence. The court also determined that the accused's intoxication, while acknowledged, did not negate the necessary intent for murder. The court concluded that the accused was responsible for BJ's death, and thus guilty of murder.

The court ordered the accused to be remanded in custody pending sentencing. The final orders included arrangements for the accused to be held until the sentencing hearing, which would determine the appropriate penalty for the offence of murder.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

Nothing had been moved in the room from the time when BJ was found until Mr McKenzie examined it at about 6.20 am.The evidence given by the accused The accused gave a different version to Ms Hunt. He stated that earlier in the night he got BJ from the main house, brought him out to Ms Hunt and then returned to the main house. He stated he went to the toilet for a few minutes, then decided to put Destiny to bed. He stated that he carried her to bed, and spent four to five minutes with her while she went to sleep again. He estimated he was away from the granny flat for ten minutes. He stated when he came back Ms Hunt was sitting or standing by the foot of BJ’s bed, while BJ was tucked into bed. The accused stated BJ was in the process of falling asleep and was only slightly awake. He said good night to BJ and then sat on the couch to watch TV. He said that he and Ms Hunt did have a disagreement but said it went on for no more than five minutes. He stated she then went into the main house. He then went outside and smoked a cannabis cigarette, watched some television, then fell asleep. The accused stated he woke up to a “bit of a noise and a murmur from BJ”. There was a curtain between BJ’s bed and his bed which was closed. He sat up partially in the bed, waited for BJ to get into the bed before falling asleep again, and was unsure how long he waited. The accused stated he then woke up again, and got up with the intention of going to see Ms Hunt, whereupon he checked on BJ to find him stuck between BJ’s bed and the cupboard. He gave evidence that BJ was face down with his left arm up above his head, with the arm sitting underneath the side skirt of the cupboard. BJ was stomach down. He stated he was wearing a nappy and a t-shirt. He said he then put BJ on the bed, tried to clear his airway and then began to give him CPR as he was making a “gurgling sound”. He then ran in to get Ms Hunt and the process of getting BJ to hospital began. The accused gave evidence that once inside the hospital, BJ was taken into a room and he and Ms Hunt were removed from the room after ten minutes. He stated at one stage he went to call BJ’s father to tell him what had happened, before being moved into a waiting room. He said in the waiting room a police officer or a nurse (he could not remember which) came in and asked what happened. The accused said he “went to say what happened, I got about four words in and was cut off by Tara”. He stated Ms Hunt said she had found BJ in the room. The accused stated he then did not get asked about any details until Senior Constable Bell interviewed him. He stated he continued with what Ms Hunt had said initially. I will later reject the version given by the accused. In his evidence the accused stated that he usually drank alcohol once a month, smoked cannabis every day or every second day and smoked methamphetamine about once a week. He said that on the night in question he drank three scotch and coke before going to the hotel and also smoked some cannabis and took methamphetamine about 5.00 pm or 6.00 pm. He said he was not affected by the drugs or alcohol when he went to the hotel but conceded when cross-examined that they may have had a slight effect. He also agreed that he was tipsy at the hotel but not when he left.

Decision

Reasons for decision

ANDERSON J

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Ratio Decidendi

Legal Principle Established

Established by: ANDERSON J

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