Powell, R. v

Factual and Procedural Background

The Applicant was convicted following a trial and plea hearing at the Crown Court at Leeds in February 2020. He pleaded guilty to multiple offences including criminal damage, assault occasioning actual bodily harm, burglary, and common assault, and was convicted after trial of rape. The trial judge sentenced the Applicant to a total of eight years' imprisonment, with sentences for certain offences running concurrently and others consecutively. Notification orders were also made following the sexual offence conviction. The Applicant was in a sexual relationship with the complainant, referred to as "S," which began in April 2019 and was described as turbulent. The complainant alleged that the Applicant raped her in June or July 2019 during an argument when both had been drinking. The Applicant denied the rape charge and did not give evidence at trial. The prosecution relied on the complainant’s evidence, including an Achieving Best Evidence (ABE) interview. The defence argued that the complainant was intoxicated and that any sexual activity was consensual.

The Applicant subsequently sought permission to appeal his conviction out of time, to call fresh evidence under section 23 of the Criminal Appeal Act 1968, and to extend the time for appeal by one year and six-and-a-half months. The single judge had previously refused permission to appeal.

Legal Issues Presented

1. Whether permission should be granted for the Applicant to appeal against his conviction for rape and other offences.
2. Whether fresh evidence should be admitted under section 23 of the Criminal Appeal Act 1968.
3. Whether an extension of time should be granted to allow the appeal to proceed.

Arguments of the Parties

Applicant's Arguments

• The Applicant contended that his trial counsel decided he would not give evidence without meaningful consultation, contrary to his wishes, and that giving evidence was necessary.
• He claimed he was wrongly advised to plead guilty to offences other than rape, despite protesting innocence.
• He sought to introduce fresh evidence of post-trial retraction by the complainant, asserting she admitted fabricating allegations.
• He argued that trial counsel failed to use unused material such as phone messages and character statements which could have supported his defence.
• The Applicant alleged that the police failed to act on a complaint from the complainant’s friend regarding the alleged retraction.
• He submitted that his diagnosed severe ADHD and related impairments affected his decisions at trial and on appeal.

Court's Observations on the Applicant's Arguments

• The Court noted the Applicant’s grounds were diverse and included criticisms of trial counsel and fresh evidence claims.
• The Court observed that the Applicant’s criticisms of counsel only emerged over one and a half years after trial and that contemporaneous documents showed he was properly advised regarding giving evidence.
• The Court rejected the notion that the Applicant was forced to plead guilty, emphasizing that pleas are made personally and voluntarily in open court.
• The Court acknowledged the Applicant’s belief that certain text messages could have changed the trial outcome but noted these messages were not uniformly favourable and counsel’s tactical decision not to use them was reasonable.

Table of Precedents Cited

No precedents were cited in the provided opinion.

Court's Reasoning and Analysis

The Court first addressed the application to admit fresh evidence under section 23 of the Criminal Appeal Act 1968. It applied the statutory criteria, including whether the evidence was capable of belief, whether it could provide grounds for allowing the appeal, its admissibility at trial, and whether there was a reasonable explanation for the failure to adduce it previously. The Court found the fresh evidence not credible and unlikely to affect the appeal outcome, noting concerns about the timing, quality, and nature of the statements purportedly retracting the complainant’s allegations.

Regarding the Applicant’s criticisms of trial counsel, the Court found that contemporaneous records demonstrated proper advice had been given, particularly about the critical decision not to give evidence. The Applicant had signed documents confirming his decisions, and the Court emphasized the importance of such records in preventing late challenges to counsel’s conduct.

The Court rejected the Applicant’s contention that he was compelled to plead guilty to certain counts, reaffirming the principle that guilty pleas are personal and voluntary decisions made in open court.

On the question of the extension of time for appeal, the Court found the Applicant’s explanation for the lengthy delay inadequate and declined to extend the time.

Holding and Implications

The Court REFUSED permission to admit fresh evidence, REFUSED permission to appeal against conviction, and REFUSED the application for an extension of time to appeal.

The direct effect is that the Applicant’s conviction and sentences remain undisturbed. No new precedent was established, and the decision primarily reinforces established principles concerning the admission of fresh evidence, the voluntariness of guilty pleas, and the necessity for timely appeals.