R v Cobham [2005] ACTSC 107 (13 October 2005)

Last Updated: 9 November 2005

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

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

EX TEMPORE

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.

1. 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.

2. 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.

3. 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.

4. 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 if you are left in a state of not knowing, the accused will have failed with his burden of proof. But the accused does not have to satisfy you to the same high standard as the Crown. That is all - I do not think there is any great gymnastics in it'.

I asked counsel for the accused whether he had any difficulty with that way of putting it, he answered, `No, but I would flag this right at the outset'.

5. I indicated that what I would do would be to `keep that formulation out of the transcript and polish it up a bit before I tell the jury'. The case proceeded.

6. On a charge of sexual intercourse without consent, without statutorily aggravating features, the maximum penalty is imprisonment for twelve years. For the alternative charges of sexual intercourse with a person under the age of sixteen years simpliciter, the maximum penalty is imprisonment for fourteen years. Nevertheless, the learned Crown Prosecutor informed the Court that she took the view that the latter kind of charge would not allow a sentencing judge sufficient scope for an appropriate sentence, in all the circumstances, if consent were lacking, and that is why the offences, although carrying a lesser statutory maximum, were charged in each instance as the primary charge. That is a view which may or may not be correct. As matters stand, I have considerable doubt about whether that view is correct.

7. Counsel for the accused has also now informed the Court that, although he did not raise the matter with the Court, he raised with the Crown Prosecutor (before the exchange referred to above) his concern that, had the Crown proceeded on what I will call the `rape' charges alone, as the accused had made a full and exculpatory video-recorded interview, it might be a nice decision as to whether he should give evidence and expose himself to cross-examination. However, section 55(3) of the Crimes Act 1900 (ACT) makes part of the available defence to a prosecution for what I will call `carnal knowledge' that the accused must establish that the child in question consented to the sexual intercourse. Here there were two complainants to give evidence that they had unmistakably and vigorously indicated their lack of consent. There was no practical choice at all for the accused if he were to escape conviction for the charge, with a disputed element on which he carried the onus, unless he entered the witness box. Thereby, his choice in relation to the rape charges would be foreclosed and the Crown would have the advantage on the rape charges, as also on the carnal knowledge charges, of whatever material advantageous to its case might appear from cross-examination of the accused.

8. The matter simply proceeded. All the evidence is now in. The accused gave evidence, and was cross-examined vigorously and to some effect.

9. The real issues in this case are whether the complainants consented, and in relation to the `carnal knowledge' charges, whether the accused believed, and if so, whether on reasonable grounds, that they were sixteen years of age or older. In the circumstances it would be a somewhat fanciful finding that the girls did not consent but that the accused did not know that they were not consenting.

10. In the course of formulating a proposed charge to the jury to assist them to deal with the different and shifting onus of proof and the different standards of proof, I began to entertain some doubt about whether it would be possible to put the matter in such a way that, in practical reality, one could be confident that all members of a jury would comprehend it.

11. It has now been authoritatively established, and is universally reflected in directions to the jury, that the judge ought not give the jury any assistance on the question of what `beyond reasonable doubt' means, and juries are often in effect warned not to ask about it. It is intimated to them that the law is that they cannot be given further help on that subject. In my own experience, before that modern practice became established, judges were frequently asked by juries what `beyond reasonable doubt' meant, and whether the judge could please help them to understand that concept. So the practical reality is that the matter is not an easy one for jurors to deal with.

12. I was concerned that it is at least an unhappy thing that the present jurors might be required to consider in the same case, on the same issue, precise gradations of their state of satisfaction, or the lack of it, on the issue of consent. It also seemed to me that there might possibly be questions of issue estoppel or abuse of process, in at least a technical sense, arising from the effort to charge the accused with `carnal knowledge', having regard to the ACT Parliament's formulation of the onus on the issue of consent, after any acquittal on a rape charge relating to the same incident.

13. I raised all these matters with counsel this morning and an adjournment was given for consideration of the matter. Counsel for the accused then made an application for the discharge of the jury, indicating that the accused was doing so after obtaining independent legal advice.

14. The grounds of the application are that the accused has unfairly been exposed to cross-examination which is available to the Crown in relation to the rape charges because of the practical and tactical considerations, to which I have referred. I had also raised with counsel for consideration the question of whether severance of the charges and a continuation with one set, that is the `rape' charges or the `carnal knowledge' charges, might cure the situation which has arisen. Counsel's submissions were that the severance of either set of charges, so as to continue with the rest, would not cure the prejudice.

15. I consider that there might be prejudice to the accused if the matters proceed together. There may be prejudice in relation to the `rape' charges, and I think the indictment should be severed.

16. The learned Crown prosecutor has indicated a desire to have the trial continue on the severed indictment in relation only to the `carnal knowledge' charges.

17. I am unable to see any practical prejudice to the accused in that course. On his own analysis, he would have no chance of defeating those charges unless he gave evidence and subjected himself to cross-examination, which he has done. The only practical prejudice suggested by counsel is that the jury might speculate that I have determined that the `carnal knowledge' charges against the accused have such a weight of evidence to support them that they alone need detain the jury.

18. In the light of the directions that I propose to give the jury, namely that the charge has been severed and that they should treat it as not containing the sexual intercourse without consent charges, I think that is somewhat farfetched, and in any case well able to be cured by a direction which I would have every confidence the jury would understand and obey.

19. Of course, it is the accused who is at present in jeopardy. However, it is also relevant to my decision to proceed, rather than to jettison entirely the proceedings in this case, that there would be very considerable hardship to the complainants involved in that course. They are still children. They are fifteen years of age. Each was barely fourteen years of age at the time of the alleged offences. It is an easy inference that each of them is a girl who has not had an easy time of her adolescence. On any view of the matter they were two fourteen year old girls, who, on a Friday night at about 11 pm were unwise enough to agree to go for a drive, they knew not where, with a man who smelled of alcohol and who was more than twenty years their senior.

20. Experience shows there might be considerable doubt as to whether one or both of them would be prepared to present herself again as a witness for a retrial. Each of them, it was very obvious, felt under great strain in giving evidence. There is a substantial Crown case, particularly on the issue of their lack of consent, and in my opinion the interests of justice concerning first, fairness to the accused, but second, the interests of the community and the interests of the alleged victims, support the unusual course that I am taking.

21. In the case of R v Birks (1990) 19 NSWLR 677 in the New South Wales Court of Criminal Appeal, where difficulties had arisen in the trial, the Court of Appeal was at pains to stress that there is a large armoury of discretionary tools available to the trial judge to attempt to secure the interests of justice.

22. I have not overlooked that there might be some theoretical prejudice to the accused arising from the fact that the word `rape' has been used before the jury, in the context of the sexual intercourse without consent charges being before them.

23. In any event, the jury might in their own minds understand those charges to be what in common parlance is called `rape'. The fact that such charges have been levelled against the accused, as well as what some members of the jury at least would probably know to be regarded as `carnal knowledge' charges under the old nomenclature, might be thought to lend a seriousness and an odium to the matter which a trial of the `carnal knowledge' charges alone would not have.

24. My own view is that there would be no practical prejudice to the accused arising from this, and if anybody has any concern in that regard I will give the jury specific directions about it. However my own view would be that it is best to leave what I am quite confident would be sleeping dogs to lie.

25. For these reasons, I will sever the indictment and I will be accede to the Crown's application that the matter proceed in relation to the carnal knowledge charges. That is to say, in relation to the second, fourth, sixth and eighth counts. I will have a copy of the indictment, with the severed charges omitted from it, sent into the jury room or, by consent, whatever counsel prefer, a completely fresh indictment, if need be, accompanied by the accused's re-pleading to it. But, subject to hearing further argument, my own view is that the first course is the better course.

I certify that the preceding twenty-five (25) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Madgwick.

Associate:

Date: 3 November 2005

Counsel for the plaintiff: Ms P de Veau

Solicitor for the plaintiff: Director of Public Prosecutions (ACT)

Counsel for the defendant: Mr J Sabharwal

Solicitor for the defendant: Legal Aid Commission (ACT)

Date of hearing: 10, 11, 12, 13, 14 October 2005

Date of judgment: 13 October 2005