R v Forrest - [2021] ACTSC 104

SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY

Case Title:	R v Forrest
Citation:	[2021] ACTSC 104
Hearing Date:	27 May 2021
DecisionDate:	28 May 2021
Before:	Murrell CJ
Decision:	Application granted
Catchwords:	CRIMINAL LAW – EVIDENCE – Pre-trial application – Coincidence evidence – Aggravated robbery – Identity in issue – Whether evidence has significant probative value – Whether probative value of evidence substantially outweighs any prejudicial effect
Legislation Cited:	Crimes Act 1900 (ACT) ss 310, 381(1) Criminal Code 2002 (ACT) s 44 Evidence Act 2011 (ACT) ss 98, 101, 192A
Cases Cited:	Dempsey (a pseudonym) v The Queen [2019] VSCA 224 R v Bauer (a pseudonym) [2018] HCA 40; 266 CLR 56 R v Donnelly [2016] ACTSC 80 R v Gale; R v Duckworth [2012] NSWCCA 174; 217 A Crim R 487 R v Kandola [2016] ACTSC 395 R v Klobucar [2016] ACTSC 23; 305 FLR 445 R v RN [2005] NSWCCA 413 Selby v The Queen [2017] NSWCCA 40 Xie v TheQueen [2021] NSWCCA 1; 386 ALR 371
Parties:	The Queen ( Crown) Michael Paul Forrest ( Accused)
Representation:	Counsel K McCann ( Crown) S McLaughlin ( Accused)
Solicitors ACT Director of Public Prosecutions ( Crown) Legal Aid ACT ( Accused)
File Number:	SCC 48, 80 of 2021

MURRELL CJ:

The application

The accused has been indicted on the charge that, on 6 October 2019, he attempted to commit an aggravated robbery (in that he was in company, or had an offensive weapon, or both) contrary to s 310 of the Crimes Act 1900 (ACT) (Crimes Act), by virtue of s 44 of the Criminal Code 2002 (ACT) (Criminal Code) (Charge 2).

A summary charge of possession an offensive weapon with intent, contrary to s 381(1) of the Crimes Act, is also before the Court (Charge 1), to be dealt with by the trial judge at the conclusion of the trial of Charge 2.

The trial is listed in the week commencing 13 September 2021.

The accused has pleaded guilty to an offence of aggravated robbery on 6 October 2019 (Charge 3).

The Crown has applied, pursuant to 192A of the Evidence Act 2011 (ACT) (Evidence Act), for a ruling that, at the trial of Charge 2, it may adduce evidence of Charge 3 as coincidence evidence to establish that the accused was the offender in Charge 2. If the accused is convicted, the Crown will seek to rely on evidence of Charge 2 to prove Charge 1.

The Crown evidence supporting the charges

Charge 1

At about 5 AM on 6 October 2019, in the suburb of Downer, the complainant was delivering newspapers when he saw two people wearing “all-black”, both of whom were wearing “hoodies”. One was a tall, slender Caucasian man whose face was covered, in black, possibly by a bandanna. The second person appeared to be female. She was Caucasian, slim and “a bit shorter than the guy”. The man pointed what appeared…

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 Forrest

Details

AGLC: R v Forrest [2021] ACTSC 104
Case: [2021] ACTSC 104
Decision Date

CaseChat Overview and Summary

In the case of R v Forrest, the Supreme Court of the Australian Capital Territory was tasked with determining whether the Crown could adduce evidence of a prior offence to prove the identity of the accused in a subsequent offence. The accused, Michael Paul Forrest, was charged with attempted aggravated robbery (Charge 2) and possession of an offensive weapon with intent (Charge 1). The Crown sought to adduce evidence of an earlier aggravated robbery (Charge 3) to establish that Forrest was the offender in Charge 2.

The court had to decide whether the evidence of Charge 3 met the criteria set out in the Evidence Act 2011 (ACT). Specifically, the court needed to determine if the evidence of Charge 3 would, by itself or in conjunction with other evidence, have significant probative value and whether this probative value substantially outweighed any prejudicial effect. The court found that the evidence of Charge 3 had significant probative value in identifying Forrest as the perpetrator of Charge 2. The similarities between the two offences, such as the presence of a female accomplice, the use of a firearm, and the modus operandi, were enough to make it improbable that the offences were committed by different offenders. Despite some dissimilarities, such as the descriptions of the firearm and the attire of the offender, the court found that these did not substantially undermine the improbability of coincidence. Moreover, the court determined that the probative value of the evidence substantially outweighed any prejudicial effect, allowing for its admission.

The court granted the Crown's application, permitting the evidence of Charge 3 to be used as coincidence evidence in the trial of Charge 2. The decision ensures that the jury will have access to all relevant information to make an informed decision about the identity of the offender in Charge 2.

Orders