The Queen v Benjamin James Forbes - [2006] ACTSC 47

THE QUEEN v BENJAMIN JAMES FORBES
[2006] ACTSC 47 (18 MAY 2006)

CRIMINAL LAW – EVIDENCE – similar fact evidence – sexual offences – whether evidence on one count admissible to prove another count – coincidence rule: Evidence Act 1995 (Cth), s 98 – whether the coincidence notice and the evidence proposed to be led by the prosecution reveals ‘substantially and relevantly similar’ events – uncharged sexual assaults known to have occurred in vicinity of these attacks – evidence does not demonstrate ‘striking similarity’ between the counts on the indictment – whether probative value substantially outweighs prejudicial effect of such evidence: Evidence Act 1995 (Cth), s 101 – application for separate trials allowed.

Evidence Act 1995 (Cth), s 98, s 101

Phillips v The Queen (2006) 80 ALJR 537
Hoch v The Queen (1988) 165 CLR 292
Sutton v The Queen (1984) 152 CLR 528
Ellis v The Queen (2003) 58 NSWLR 700
Pfennig v The Queen (1995) 182 CLR 461
Uniform Evidence Law, Odgers, 6^th Ed

No. SCC 199 and 179 of 2005

Judge: Gray J
Supreme Court of the ACT

Date: 18 May 2006

IN THE SUPREME COURT OF THE  )
  )  No. SCC 199 and 179 of 2005
AUSTRALIAN CAPITAL TERRITORY  )

THE QUEEN
against
BENJAMIN JAMES FORBES

RULING ON VOIR DIRE

Judge:  Gray J
Date:  18 May 2006
Place:  Canberra

THE COURT RULES THAT:

The evidence on count one of the indictment is not admissible in aid to proof of count two.

THE COURT DIRECTS THAT:

There be a separate trial in respect of the matter alleged in count one of the indictment to that of counts two and three.

Benjamin James Forbes (the accused) has been charged on indictment with two counts of sexual intercourse without consent. The indictment alleges:

… that on the 11^th day of March 2005 at Canberra in the Australian Capital Territory [the accused] engaged in sexual intercourse with [complainant one] without the consent of [complainant one] and knowing that [complainant one] had not consented to the sexual intercourse.
AND FURTHER THAT on the 8^th day of June 2005 at Canberra aforesaid [the accused] threatened to inflict actual bodily harm on [complainant two] with intent to engage in sexual intercourse with the said [complainant two].
AND FURTHER THAT on the 8^th day of June 2005 at Canberra aforesaid [the accused] dishonestly appropriated property namely a Nokia 3120 mobile telephone belonging to [complainant two], with the intention of depriving the said [complainant two] of the property.

The original application

On 9 February 2006, I dismissed an application that the accused had made to sever the first count from the second and third counts on the indictment. Having regard to the submissions then put to me by Mr Standish, who appeared for the Director of Public Prosecutions, and Mr Gill, who appeared as counsel for the accused, I was satisfied, at that time, that the evidence that the prosecution proposed to call on each count would satisfy the…

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.

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Details

Case: [2006] ACTSC 47
Decision Date

CaseChat Overview and Summary

Benjamin James Forbes has been charged with two counts of sexual intercourse without consent. The case before the Supreme Court of the Australian Capital Territory involves the admissibility of evidence from one count to prove another under the Evidence Act 1995 (Cth). The central legal issue is whether the evidence from count one of the indictment is admissible to prove count two. The court must determine whether the evidence of the two counts demonstrates 'substantially and relevantly similar' events, as required by s 98 of the Evidence Act. Additionally, the court must weigh the probative value of the evidence against its prejudicial effect, as stipulated by s 101 of the Act.

Justice Gray, after reviewing the submissions and the recent decision in Phillips v The Queen, concluded that the evidence from count one was not admissible to prove count two. The court found that the similarities between the two counts did not reach the level of 'striking similarity' needed to establish admissibility. The evidence, while probative, lacked the necessary cogency to demonstrate that the same person committed both offences. The court emphasised that the probative value of the evidence did not substantially outweigh its prejudicial effect, thereby upholding the principle that coincidence evidence must meet stringent admissibility criteria. Consequently, Justice Gray ruled that the evidence from count one could not be used to aid the proof of count two and ordered separate trials for the counts.

The final orders of the court are that the evidence on count one of the indictment is not admissible in aid of proof of count two and that there be a separate trial for the matter alleged in count one of the indictment from that of counts two and three.

Orders