R v Peter George Cobham - [2005] ACTSC 107

R v PETER GEORGE COBHAM [2005] ACTSC 107 (13 October 2005)

EX TEMPORE JUDGMENT

CRIMINAL LAW – jurisdiction, practice and procedure – information, indictment or presentment – amendment – severance of indictment – prejudice to accused

Crimes Act 1900 (ACT) s 54, s 55

R v Birks (1990) 19 NSWLR 677

No. SCC 25 of 2005

Judge: Madgwick J
Supreme Court of the ACT

Date: 13 October 2005

IN THE SUPREME COURT OF THE       )
  )          No. SCC 25 of 2005
AUSTRALIAN CAPITAL TERRITORY    )

R
v
PETER GEORGE COBHAM

ORDER

Judge:  Madgwick J
Date:  13 October 2005
Place:  Canberra

THE COURT ORDERS THAT:

The indictment be severed and that the matter proceed in relation to the second, fourth, sixth and eighth counts only.

In this case the accused is charged with eight counts. The first and third allege that he engaged in sexual intercourse with a female complainant without her consent and knowing that she had not consented thereto. As an alternative to each of those charges, he is charged with having engaged in sexual intercourse with the complainant, she then being above the age of ten years, but under the age of sixteen years, to wit fourteen years of age. Those alternative charges are the second and fourth counts respectively.
The fifth and seventh counts, similarly, are charges of sexual intercourse without consent with a second female complainant and, similarly, to each of those charges there is a sixth and eighth count respectively – an alternative count of what I might call, and what used to be known as, ‘carnal knowledge’ of the second complainant.
An unfortunate situation has arisen. At the outset of the trial, counsel for the accused suggested, in the absence of the jury, that there was ‘one matter…in relation to the indictment’. Shortly after he continued:
I raise this mainly in relation to your charge, in due course, to the jury. Because in relation to the principal counts you will be saying the burden of proof in relation to each element lies on the Crown, beyond reasonable doubt. But in terms of the alternative counts, your Honour will be saying that there is a burden cast on the accused to establish, for instance, consent…I raise this because there may be some gymnastics within the jury room, in terms of their mental exercise of distinguishing …
the various onuses and standards of proof.
In respect of the alternative counts, I then proffered the view that:
… as to the primary counts, if the jury accepted that the particular complainant did not consent and that the accused knew that she had not consented, in the circumstances of the case, where the acts of sexual intercourse themselves were admitted, the jury would not need to look at the alternative counts, in which case one might say to the jury, on the issue of consent, the difference is: if you are left in a state of not knowing about the first count, the Crown will have failed. But…

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 Peter George Cobham

Details

AGLC: R v Peter George Cobham [2005] ACTSC 107
Case: [2005] ACTSC 107
Decision Date

CaseChat Overview and Summary

In the case of R v Peter George Cobham, the defendant was charged with eight counts related to sexual offences against two complainants. The first and third counts alleged sexual intercourse without consent, while the second and fourth counts provided alternatives for the same offences but involved a complainant under the age of sixteen. Similarly, the fifth and seventh counts related to the second complainant, with the sixth and eighth counts offering alternative charges. The primary legal issue before the court was whether the indictment should be severed, given the potential prejudice to the defendant if the charges proceeded together. The court considered whether the jury could appropriately weigh the different standards of proof for the various charges, especially in light of the defendant's decision to give evidence and face cross-examination.

Justice Madgwick concluded that the indictment should indeed be severed to prevent prejudice to the defendant. The reasoning was based on the complexity of the jury's task in distinguishing between the different burdens of proof and standards of proof. The court was concerned that the jury might struggle to comprehend the nuanced instructions required to differentiate between the various charges. Additionally, the court acknowledged that the presence of the "rape" charges could lend an undue seriousness to the proceedings, potentially affecting the jury's perception of the "carnal knowledge" charges. Despite these concerns, the court determined that proceeding with the "carnal knowledge" charges alone would not result in practical prejudice to the defendant, especially since he had already testified and been cross-examined.

The court also weighed the interests of the complainants and the community, noting the considerable hardship of a retrial for the young victims. Balancing these interests with the need for fairness to the defendant, Justice Madgwick decided to sever the indictment, allowing the trial to proceed with the second, fourth, sixth, and eighth counts. This decision aimed to maintain the integrity of the trial while mitigating potential prejudice to the defendant and considering the broader implications for all parties involved.

Orders