R v Benjamin James Forbes - [2009] ACTSC 1

R v BENJAMIN JAMES FORBES [2009] ACTSC 1 (5 February 2009)

CRIMINAL LAW – trial by judge alone – evidence – identification evidence – photo-board – matters to be considered taken into account in assessing reliability.

Supreme Court Act 1933 (ACT), s 68C

Criminal Code 2002 (ACT), s 308

Crimes Act 1900 (ACT), s 53 s 235

Evidence Act 1995 (Cth), s 53, s 116, s 165

Fleming v The Queen (1998) 197 CLR 250

R v Clarke (1997) 97 A Crim R 414
Craig v R (1933) 49 CLR 429

No. SCC 179 of 2005

Judge: Gray J
Supreme Court of the ACT

Date: 5 February 2009

IN THE SUPREME COURT OF THE       )
  )          No. SCC 179 of 2005
AUSTRALIAN CAPITAL TERRITORY    )

THE QUEEN
v
BENJAMIN JAMES FORBES

ORDER

Judge:  Gray J
Date:  5 February 2009
Place:  Canberra

THE COURT FINDS THAT:

The accused is not guilty of the two charges on the indictment.

On 12 November 2007, Benjamin James Forbes (the accused) was arraigned before me on two charges:

… THAT on the 8^th day of June 2005 at Canberra [he] threatened to inflict actual bodily harm on [the complainant] with intent to engage in sexual intercourse with the said [the complainant].
AND FURTHER THAT on the 8^th day of June 2005 at Canberra [he] dishonestly appropriated property namely a Nokia 3120 mobile telephone belonging to [the complainant], with the intention of depriving the said [the complainant] of the property.

The accused pleaded not guilty to these charges.

Before the court first allocated a date for the trial of these charges the accused elected to be tried by judge alone. Section 68C of the Supreme Court Act 1933 (ACT) provides that a judge who tries a criminal proceeding without a jury may make any finding that could have been made by a jury as to the guilt of an accused person and such finding has the same effect as a verdict of a jury.

My judgment in this proceeding is to include the principles of law that I apply and the findings of fact upon which I rely. Further, I must explain the reasoning process linking those matters so as to justify the verdict to which I come (Fleming v The Queen (1998) 197 CLR 250).

I must take account of the warnings that would be given to a jury.

General directions and principles

I give effect to the following general directions.

As far as the conduct of the trial is concerned, I direct myself in accordance with the law in relation to all of the matters which a jury would ordinarily be directed before retiring to consider its verdict. The accused is entitled to have a fair trial according to law. As the tribunal of fact, as well as the tribunal of law, it is my function to find the facts and to draw inferences from them as well as to apply the law to those proven facts. I must deliver…

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 Benjamin James Forbes

Details

AGLC: R v Benjamin James Forbes [2009] ACTSC 1
Case: [2009] ACTSC 1
Decision Date: 5 February 2009

CaseChat Overview and Summary

The case of R v Benjamin James Forbes involved the accused, Benjamin James Forbes, who was charged with two offences. The proceedings took place before the court, which was required to determine the accused's guilt or innocence based on the evidence presented. The primary dispute centred around the reliability and admissibility of identification evidence, specifically whether the evidence provided by a photo-board was reliable enough to convict the accused.

The legal issues that the court had to address included the reliability of the identification evidence provided by the photo-board, and whether the evidence was sufficiently reliable to be admitted. The court needed to consider the factors that should be taken into account when assessing the reliability of such evidence, including the circumstances in which the identification was made, the opportunity to observe the accused, the accuracy of the description, and any other relevant factors.

In delivering its judgment, the court carefully considered the evidence provided and the relevant legal principles. The court concluded that the identification evidence provided by the photo-board was not reliable enough to support a conviction. The court found that there were significant inconsistencies in the witness statements, and that the opportunity to observe the accused was limited. The court also found that the description provided by the witnesses was not sufficiently accurate to support a reliable identification. As a result, the court found the accused not guilty of the two charges on the indictment.

Orders

Orders of the court

The accused is not guilty of the two charges on the indictment.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.