R v Forrest - [2005] SASC 41

SUPREME COURT OF SOUTH AUSTRALIA
(Criminal: Application)
R v FORREST
Reasons for Ruling of The Honourable Justice Besanko
11 February 2005
CRIMINAL LAW - JURISDICTION, PRACTICE AND PROCEDURE - INFORMATION, INDICTMENT OR PRESENTMENT - JOINDER - OF COUNTS - BY STATUTE
Accused charged with one count of robbery in company and one count of threatening an injury or detriment to a witness - application by accused for severance of the two counts - whether the two charges are founded on the same facts - where the two charges have a common factual origin in that the second charge could not have been alleged but for the facts which give rise to the first charge - whether the two charges form or are part of a series of offences of the same or similar character - whether joinder of the two counts may prejudice the accused - application refused.
Criminal Law Consolidation Act 1935 ss 158(b), 248(1)(b), 278, referred to.
R v Barrell (1979) 69 Cr App R 250, applied.
Sutton v The Queen (1984) 152 CLR 528; De Jesus v The Queen (1986) 61 ALJR 1; R v Jacobs (1988) 143 LSJS 14; R v Garrett (1988) 50 SASR 392, considered.

R v FORREST
[2005] SASC 41
Criminal

BESANKO J: Kym Bradley Forrest is charged on Information with two offences. The first count alleges that he committed the offence of robbery in company on 20^th January 2003 contrary to s 158(b) of the Criminal Law Consolidation Act 1935 (“CLCA”), and the second count alleges that he committed the offence of threatening an injury or detriment to a witness on 26^th November 2004 contrary to s 248(1)(b) of the CLCA. By application issued pursuant to r 9 of the Supreme Court Criminal Rules 1992 the accused applies for an order severing the two counts on the ground that they have not been properly joined in the same Information (s 278(1) of the CLCA) or, in the alternative, an order that the two counts be tried separately (s 278(2) of the CLCA).
The prosecution case and the previous trial
The prosecution case is that the accused in company with Adam Paul Knibbs approached two men at Woodville in the State of South Australia on 20^th January 2003. The two men were Doogal Fleetwood Hannagan and Matthew Phillip Brady. The prosecution case is that the accused assaulted both men and Knibbs assaulted Brady. The prosecution case is that as part of a joint enterprise, the accused took the sum of $10.00 from Hannagan, and Knibbs took the sum of $2.00 and goods (cigarettes and a mobile telephone) from Brady.
The prosecution case is that on or about 26^th November 2004 the accused sent a letter to Hannagan from the Mobilong prison. The prosecution case is that the letter contains a threat to cause or procure an injury or detriment to Hannagan, a witness in judicial proceedings, with the intention of…

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 [2005] SASC 41
Case: [2005] SASC 41
Decision Date: 11 February 2005

CaseChat Overview and Summary

The case of R v Forrest involved the accused being charged with one count of robbery in company and one count of threatening an injury or detriment to a witness. The accused applied for severance of the two counts, arguing that the charges were not properly joined under statutory provisions and that joinder may prejudice their right to a fair trial. The matter was heard and determined by the court, which had to decide on the appropriateness of joining the two counts in a single trial.

The legal issues before the court included whether the two charges were founded on the same facts, and if they had a common factual origin. The court also had to consider whether the charges formed or were part of a series of offences of the same or similar character, and whether joinder of the two counts might prejudice the accused. The court was tasked with balancing the statutory framework for joinder of charges against the potential prejudice to the accused's right to a fair trial.

The court considered the submissions made by the accused and concluded that the two charges were indeed founded on the same facts and had a common origin. It was held that the second charge could not have been alleged without the facts that gave rise to the first charge. Furthermore, the court found that the joinder of the two counts did not prejudice the accused's right to a fair trial. The court held that the joinder was permissible under the statutory provisions, and thus, the application for severance was refused. The court reasoned that the charges were properly joined, and the accused's right to a fair trial would not be compromised by a single trial.

The final orders of the court were that the application for severance of the two counts was rejected, and the two charges would proceed to trial together. The court's decision was based on the understanding that the charges shared a common factual origin and that joinder did not prejudice the accused's right to a fair trial. The accused's application for separate trials was thus denied.

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

I reject the accused’s submission that I should exercise my discretion under s 278(2) of the CLCA to order separate trials of the two counts.Conclusion It was for these reasons that I made the ruling which I did.

Ratio Decidendi

Legal Principle Established

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