R v Power

Case [2003] SASC 77

R v POWER
[2003] SASC 77

Court of Criminal Appeal:  Perry, Williams and Bleby JJ

  1. PERRY J.               This is an appeal against conviction following a trial by judge alone in the District Court on four counts of unlawful sexual intercourse with a person under the age of 12 years, a young girl whom I will call V.

  2. The information alleged six counts, but at the commencement of the hearing, a nolle prosequi was entered with respect to counts 3 and 5. The trial proceeded with respect to the remaining counts.

  3. At the conclusion of the Crown case, the trial judge acceded to a submission of no case to answer in relation to count 2.

  4. The accused then gave evidence, after which the trial judge delivered written reasons supporting his verdict of guilty with respect to the remaining three counts, that is counts 1, 4 and 6.

  5. V was born on 22 August 1991. She was therefore 11 years of age when she gave her evidence on 9 October 2002. She was about 10 at the time of the first count, which alleges digital penetration in December 2001, between 6 and 9 years of age at the time of the fourth count, which alleges digital penetration between August 1997 and August 2000, and between 5 and 10 years of age at the time of the sixth count, which alleges an act of cunnilingus between 22 August 1996 and 15 December 2001.

  6. The appellant is the brother of the victim’s step-father. At the time of the trial, in October 2002, he was aged 27 years. V’s step-father is her mother’s second relationship, V being a child of an earlier relationship of her mother.

  7. The incident the occasion of count 1 was the last of a series of occasions, extending beyond the six charged counts, upon which V alleged that the appellant had dealt indecently with her.

  8. As to the first count, the evidence was that on 16 December 2001, V stayed overnight at the house occupied by the appellant and V’s auntie, Belinda Watson. V’s intention was to stay at her auntie’s house for about a week. She gave evidence that she was sitting on a lounge with the appellant, watching a video. Her auntie had gone to bed. V had her nightie on and was wearing underpants. She alleged that the appellant pulled her underpants down to her ankles and then put his fingers into her vagina.

  9. Her evidence was that because of what the appellant had done to her, she changed her plans, stayed only that one night and went home the next day.

  10. V said that when she got home, she told her mother what had happened. She could not remember what she had said to her mother.

  11. V’s evidence was that the appellant had touched her indecently on a number of other occasions, she thought it was more than ten times. She could not say accurately how many more. All of those occasions preceded the incident the subject…

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R v Power [2003] SASC 77
Case
[2003] SASC 77
Decision Date

CaseChat Overview and Summary

The case of R v Power involved the appellant, who was appealing against his conviction and sentence for multiple counts of indecent assault. The trial judge had found the appellant guilty of certain counts and acquitted him of others. The appellant contested the sufficiency of the trial judge’s reasons for judgment, particularly with respect to the credibility of the evidence provided by the prosecution and the appellant himself. The Court of Appeal was tasked with reviewing the sufficiency and adequacy of the trial judge’s reasons and determining whether there were any errors in the assessment of the evidence that warranted a different outcome.

The primary legal issues before the Court of Appeal were whether the trial judge's reasons for judgment were adequate and whether they properly addressed the evidence and the principles applicable to assessing the credibility of witnesses. The appellant argued that the trial judge's reasons did not sufficiently address the need for a warning about the dangers of convicting based on uncorroborated evidence, especially where the events in question occurred years prior to the trial. Additionally, the appellant contended that the trial judge failed to provide clear reasons for preferring the prosecution’s evidence over the appellant's.

The Court of Appeal considered the arguments presented by the appellant's counsel and reviewed the trial judge’s reasons in detail. The Court found that the trial judge had indeed given careful consideration to the evidence presented and provided adequate reasons for his conclusions. The Court held that the trial judge had appropriately warned himself about the dangers of convicting based on uncorroborated evidence, implicitly through his careful assessment of the complainant’s credibility. Furthermore, the Court found that the trial judge's reasons were sufficient in addressing the credibility of the evidence, despite the appellant's contentions to the contrary. The Court concluded that the trial judge had not erred in his assessment of the evidence and found no merit in the appeal.

The Court of Appeal dismissed the appeal and upheld the conviction and sentence as determined by the trial judge.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

PERRY J WILLIAMS J (dissent)
The appellant gave evidence that he had no previous criminal convictions, and that the only previous contact he had had with the law was when he was dealt with in relation to a charge of common assault in 1996 in the Port Lincoln Magistrates Court, when the complaint was dismissed without conviction.The judgment In his reasons for judgment, the trial judge summarised the evidence given by the witnesses for the prosecution, and then referred to the defence case, more particularly to the evidence of the appellant. The trial judge took into account the accused’s previous good character, and then dealt with the evidence given by the appellant with respect to the admitted indecent assault on 16 December 2001. In expressing his conclusions, the trial judge stated that he had considered “all of the evidence very carefully”. He added:“I remind myself that in relation to counts two and three there has been no complaint made by [V] ..... and the Prosecution’s case is totally reliant upon her evidence. I also remind myself that I must treat her evidence with special care in relation to counts two and three because these events took place some years ago.” He went on to say that he was most impressed with V as a witness and that he had no doubt that she was telling the truth. He found beyond reasonable doubt that the accused was guilty of the conduct the subject of counts 1, 4 and 6. As for the appellant’s evidence, his findings were as follows:“31I found the accused a most unimpressive witness and I did not accept his explanation that the reason he admitted to his defacto wife that he did something to [V] and needed help was merely because he had toucher her and nothing else. I also reject his explanation that that touching was the explanation for his letter (Exhibit P3) in which he said that he has a problem that had to be dealt with. Although the denial he made to the Police of anything improper happening does not provide positive evidence of his guilt it is another factor which does not fill me with confidence as to the truth of the evidence which he has given in Court.”The argument on appeal Mr Cuthbertson, who appeared for the appellant on the hearing of the appeal, advanced what were essentially three propositions, all of which, in one way or another, were based on alleged inadequacies in the trial judge’s reasons. His first argument was that the reasons were inadequate in that they did not expressly incorporate a warning of the kind adverted to by the High Court in Longman,[1] more particularly with respect to counts 4 and 6, given the length of time between the alleged incidents the subject of those counts and the date of the first complaint.[1] Longman v The Queen (1989) 168 CLR 79. Mr Cuthbertson’s second point was that the reasons are inadequate if, as he maintained was the case here, the trial judge has, on what might be described as “undifferentiated evidence”, failed to give specific reasons as to why he preferred one account as opposed to the other.

Ratio Decidendi

Legal Principle Established

Established by: PERRY J,

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