R v Forbes [2006] ACTSC 47 (18 May 2006)

Last Updated: 31 May 2006

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] HCA 4; (2006) 80 ALJR 537

Hoch v The Queen [1988] HCA 50; (1988) 165 CLR 292

Sutton v The Queen [1984] HCA 5; (1984) 152 CLR 528

Ellis v The Queen [2003] NSWCCA 319; (2003) 58 NSWLR 700

Pfennig v The Queen [1995] HCA 7; (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:

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

THE COURT DIRECTS THAT:

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

1. 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

2. 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 test for admissibility as coincidence evidence in that its probative value substantially outweighed any prejudicial effect it may have (see s 101 Evidence Act 1995 (Cth)) (the Act). With the benefit of hindsight, I can now say that I was influenced by the identification evidence in each case as providing a strong and compelling link between the offences which I considered justified my ruling. Whilst that is an important matter, I failed to give full effect to the intent embodied in s 98 of the Act which is directed to a process of reasoning rather than a categorisation of admissibility. The identification evidence is probative and relevant to the guilt of the accused but of itself is not strongly determinative of the admissibility of the events utilising the improbability of the events occurring coincidentally. Once this is appreciated, it is not mere similarity that is required, but rather that the events be "substantially and relevantly" similar and that description requires an assessment of the probative force of the alleged similarities.

Phillips v The Queen

3. Before the trial was to take place, Mr Gill, on the accused's behalf, sought that I re-examine my ruling in light of a decision of the High Court delivered on 1 March 2006 in Phillips v The Queen [2006] HCA 4; (2006) 80 ALJR 537. Although he submitted that the decision in Phillips (supra) caused issues to be raised concerning the common law approach to similar fact evidence and the propensity and coincidence evidence provisions of the Evidence Act, the force of Phillips, in my consideration of this matter, lay in the approach that the High Court had taken and the scrutiny given to the basis for admissibility of evidence of this kind. I realised that in giving my earlier ruling I had not subjected the evidence to as rigorous a scrutiny as I should have. Accordingly, I permitted the parties to make further submissions with particular regard to the alleged probative force of the evidence, or the lack of it.

4. As the High Court pointed out in Phillips at [26]:

It is essential at the outset to identify the issues at the trial on which the similar fact evidence is tendered, for this is central to the identification of relevance, and to the assessment of the probative force on which the admissibility of similar fact evidence depends.

5. The appellant in Phillips was charged with seven counts related to five teenage female complainants alleging assault and rape and one additional count of assault with intent to rape a sixth female aged 18. Applications to sever the counts were unsuccessful and the trial took place on all counts.

6. In Phillips, the accused was known to each of the complainants, therefore identity was not in issue. For that reason the trial judge in Phillips found that it was unnecessary for the evidence to demonstrate striking similarity, unusual features, underlying unity, system, pattern or signature in the evidence (see Phillips at 544 [30] and Hoch v The Queen [1988] HCA 50; (1988) 165 CLR 292 at 294-5). The evidence of similar facts was left to the jury on the narrower basis of the probabilities of each of the complainants lying on the issue of consent. On the appeal to the High Court, it was also argued that the evidence was admissible as that of a common "pattern" or "thread" and as a "combined pattern and flavour" (Phillips at 547 [51]). These contentions were rejected by the High Court as justifying admissibility in that case.

The coincidence rule

7. Section 98 of the Evidence Act provides:

98 The coincidence rule

(1) Evidence that 2 or more related events occurred is not admissible to prove that, because of the improbability of the events occurring coincidentally, a person did a particular act or had a particular state of mind if:

(a) the party adducing the evidence has not given reasonable notice in writing to each other party of the party's intention to adduce the evidence; or

(b) the court thinks that the evidence would not, either by itself or having regard to other evidence adduced or to be adduced by the party seeking to adduce the evidence, have significant probative value.

(2) For the purposes of subsection (1), 2 or more events are taken to be related events if and only if:

(a) they are substantially and relevantly similar; and

(b) the circumstances in which they occurred are substantially similar.

...

The coincidence notice

8. The notice given by the prosecution under s 98 of the Evidence Act setting out the substance of the evidence of the occurrence of the related events sets out that the accused:

(i) Had his DNA profile examined and compared with the mixed DNA located on the inside and outside cups of the bra worn by [complainant one] at the time the offence of sexual intercourse without consent was committed by a male person, who had possession of a knife, in the vicinity of the bikepath which runs from Goodwin Street, Lyneham to the footbridge crossing over Sullivan's Creek, Lyneham involving a teenage female complainant with the offence occurring in the night time and he has not been excluded as a contributor to that partial mixed DNA. In this incident, the male offender asked the complainant for oral sex.

(ii) Been identified by [complainant two] in a photoboard identification procedure for the offences of sexual assault in the Second Degree and Theft committed on 8 June 2005 committed by a male person, who had possession of a knife, in the vicinity of the bikepath which runs from Goodwin Street, Lyneham to the footbridge crossing over Sullivan's Creek, Lyneham involving a teenage female complainant with the offence occurring in the night time. In this incident, the male offender asked the complainant for oral sex.

(iii) Been located and arrested by police on 21 June 2005 in the vicinity of the bikepath which runs from Goodwin Street, Lyneham to the footbridge crossing over Sullivan's Creek, Lyneham in the night time.

9. It may be noted that (iii) is not a "related event" for the purposes of s 98(2) of the Evidence Act but only evidence of the fact that the accused was in the area where the offences occurred at a later date.

10. It may also be noted that the evidence of DNA and the photoboard identification identifying the accused with the offences is evidence directed to the same issue that the similar fact evidence is directed to. As Brennan J (as he then was) observed in Sutton v The Queen [1984] HCA 5; (1984) 152 CLR 528, at 550:

Though it is right to determine the admissibility of a piece of similar fact evidence by reference to the whole of the body of proof, it is wrong to regard the body of proof as encompassing the guilt of the accused - the very issue which is to be proved by inference from the facts directly proved or provable in evidence.

The relevant circumstance as far as the similar fact aspect of the evidence is concerned is that the offence was committed by a person, where the description by the complainants of the physical characteristics would not exclude the accused.

The probative force of the evidence

11. In terms of s 98 of the Evidence Act, the evidence must have significant probative value. As in Sutton (supra) the question which arises is that described by Dawson J at 566:

The question which arises here is that of the identity of the accused with the person or persons who committed the offences against the complainants. ...The evidence of one set of offences was tendered in proof of the others upon the basis that the circumstances of each offence, including the description of the assailant, were so similar as to be beyond the realm of coincidence. The evidence, if admissible upon this basis, entitled the jury to conclude that the same person committed all three sets of offences and if they were satisfied beyond reasonable doubt that the accused was correctly identified in any one instance, they were entitled to convict him, as they did, of all the offences with which he was charged.

12. Mr Standish, for the prosecution, submitted that I might be assisted by considering the factual situation as to the charges under consideration in Hoch (supra) which had not been the subject of comment by the High Court as to them not qualifying as similar fact evidence. However, the evidence in that case did not rely upon striking similarity as a criterion for its probative value. This is because the evidence in Hoch was potentially relevant, not to the issue of identity as is the case here, but for other purposes. This is demonstrated by the following passage from the joint judgment of Brennan and Dawson JJ in Hoch at 301:

In assessing the probative force of evidence of similar facts, a judge must keep in mind the issue to which the evidence is relevant. How does the evidence tend to prove that issue? In cases of the present kind, evidence of the commission by an adult male of indecent acts with a number of boys has sometimes been held admissible on a count charging him with an indecent act committed with a particular boy. The ground on which such evidence has been admitted has been variously identified: the evidence has been held to be relevant to show "a system" (Reg. v. Kilbourne [1973] AC 729, at pp 750-751; Boardman,[1975] AC, at p 452; R. v. Jeffries (1947) 47 SR (NSW) 284, at pp 298,308; Reg. v. Witham [1962] Qd R 49, at p 76; R. v. Sims [1946] KB 531, at p 539) or to rebut a "defence" of innocent association (Kilbourne, at p 741; cf. Boardman, at pp 443, 458) or to confirm the truthfulness of the complainant's evidence in the particular case: Kilbourne, at p 741, 748-749; Sims, at p 540.

13. In the case of a question of identity, which is the issue in this case, I am assisted by the comments of Gibbs CJ in Sutton, at 535:

It clearly appears from Director of Public Prosecutions v. Boardman, Markby v. The Queen and Perry v. The Queen that in applying the test of admissibility which I have stated, practical assistance will in many cases be obtained from considering whether there is a "striking similarity" between the similar facts and the fact in issue. The present is such a case: the issue being identity, the question is whether each of the crimes was committed in a manner so strikingly similar to the others that a jury could reasonably conclude that the same person was guilty of all the crimes. In Scarrott (1977) 65 Cr App R 125, at p 129 , Scarman L.J. (as his Lordship then was) pointed out that the phrase "strikingly similar" is no more than a label and like any other label can mislead. However, the expression has been widely used, not only in England and Australia, but also in New Zealand (see Reg. v. McLean (1978) 2 NZLR 358, at p 361 , and Reg. v. Anderson (1978) 2 NZLR 363, at pp 364-365, 370 ), and I respectfully consider that it conveniently indicates the sort of evidence required. As Mr. Tapper has said in the Modern Law Review, vol. 38 (1975) 206, at p. 208: "The similarity must after all be capable of identifying the actor in the other incidents with the accused. This is best achieved by showing a shared and significant deviation from the common norm for criminal acts of that type." It will not be sufficient if the similar acts alleged "are themselves so common place that they can provide no sure ground for saying that they point to the commission by the accused of the offence under consideration" (Scarrott (1977) 65 Cr App R, at p 130), or if, although not commonplace, they are "the stock in trade" of persons who commit crimes of that particular kind: see, e.g. Inder (1977) 67 Cr App R 143, at p 149 (at p535). (My emphasis)

The similarities alleged

14. The coincidence notice alleges the similarities upon which the prosecution relies. As Gibbs CJ points out in Sutton v The Queen (supra at 536), the factors of the offender being a male person approaching on foot in a limited area at night and that the offences involved a teenage female complainant, are not uncommon. He points out that such factors are of negative significance in not excluding the possibility that it may have been the same person in each case. It is a common feature that in both cases the assailant possessed a knife. It is clear from the evidence given at committal by both complainants that this factor does not have the significance it might otherwise have had. In one case, the knife was held low in a face on approach. In the other, the knife was held to the complainant's throat, the assailant having approached the complainant from behind. Unfortunately, sexual assault with the threat of use of a knife is also not a singular occurrence.

15. Although the coincidence notice alleges that in each case the offender asked the complainant for oral sex, the evidence given by the complainant at committal in respect of the first event referred to in the coincidence notice does not make that allegation. This is a significant counter factor. In Sutton, there was said to be a striking similarity in the method of abduction. In the present case, neither in respect of the words used by the offender in making off with each of the complainants, nor in the manner of doing so, is there a similarity which can be so described.

Other incidents in the area

16. It seems to me that one of the telling factors against the prosecution's submission that the two events may be considered to be strikingly similar is that other incidents of the same kind have occurred in the area. On behalf of the accused, a schedule was tendered of other incidents of a like kind that the police had under investigation from September 2004. There were three other incidents to the ones that give rise to the charges in this case that all occurred in the same location; the bicycle path at the rear of Lyneham High School. Two occurred in the vicinity of the footbridge close to where the charges on the indictment are alleged to have taken place. The general description of the offender was similar in each case. One involved threats with an uncapped syringe, one with a knife and the third offered violence, knocking the victim from her bicycle.

17. At least as far as one of the other incidents in the particular area is concerned, I was informed that the prosecution does not exclude the accused as a suspect. That seems to me to miss the point. The point is that, as far as incidents involving potential and actual sexual assault and use of a weapon on young women victims in that particular area by a person or persons bearing a similar general description, the fact of the other incidents lends force to the view that there is no particular singularity in any of the incidents that would make it objectively improbable that a person other than the accused committed the acts the subject of the counts in the indictment. As the purpose of adducing this evidence is to establish the contrary, it can be seen that it lacks the probative force to do so.

Prejudicial effect

18. Section 101(2) of the Act provides that coincidence evidence about a defendant cannot be used against the defendant "unless the probative value of the evidence substantially outweighs any prejudicial effect it may have on the defendant".

19. In Ellis v The Queen [2003] NSWCCA 319; (2003) 58 NSWLR 700 at 716, Spigelman CJ (with whom the other members of the Court agreed on this aspect) observed that the regime for tendency and coincidence evidence (contained in the Evidence Act 1995 (NSW), in uniformity with the Act in consideration here) showed the intention of the parliaments to cover the relevant field to the exclusion of the previously applicable common law principles. He also observed (at 717):

Of particular importance, however, is the formulation adopted in s 101(2) requiring the probative value of tendency or coincidence evidence to "substantially outweigh" its prejudicial effect. The use of the word "substantially" is a legislative formulation, not derived from prior case law.

The particular prejudicial effect of propensity was the subject of comment in Pfennig v The Queen [1995] HCA 7; (1995) 182 CLR 461 by Mason CJ, Deane, Dawson JJ at 487-488 to this effect:

Because propensity evidence may well have a prejudicial effect which is disproportionate to the probative force of that evidence, it is necessary to maintain an insistence on that evidence having a high level or degree of cogency in the circumstances of the particular case. In this context, the reference to prejudicial effect is a reference to the undue impact, adverse to an accused, that the evidence may have on the mind of the jury over and above the impact that it might be expected to have if consideration were confined to its probative force.

Propensity evidence (including evidence of bad disposition and prior criminality) has always been treated as evidence which has or is likely to have a prejudicial effect in the sense explained. That is because the ordinary person naturally (a) thinks that a person who has an established propensity whenever opportunity arises has therefore yielded to the propensity in the circumstances of the particular case and (b) may ignore the possibility that persons of like propensity may have done the act complained of. Hence, the necessity to find something in the evidence or in its connection with the events giving rise to the offences charged which endows it with a high level or degree of cogency.

That comment shows that the legislative formulation "substantially outweighs" is the counterpart to the sort of cogency referred to in Pfennig but is replaced by the test under the Evidence Act as Spigelman CJ observes (at 717) by:

... a statutory test which expressly requires a balancing process and tilts that process in the same direction as that which the joint judgment in Pfennig suggested, but by the use of different terminology, that is, "substantially".

20. Part of the prejudicial effect of coincidence evidence lies in a jury overestimating the probative value of the evidence. That becomes more apparent when the evidence lacks essential cogency. In addition, the fact of more than one event may cause a jury to more readily accept other prosecution evidence adduced to prove guilt and may distract from the central issues in the trial should the evidence be admitted (cf Uniform Evidence Law, Odgers, 6^th Ed, p 372).

Conclusion

21. In my view, the probative value of the evidence of one event being adduced as evidence in respect of the other does not substantially outweigh the prejudicial effect that it may have on the defendant.

22. I rule that the evidence on count one of the indictment is not admissible in aid to proof of count two. I direct 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. I will hear counsel as to how this matter should now proceed.

I certify that the preceding twenty-two (22) numbered paragraphs are a true copy of the Reasons for Judgment herein of his Honour, Justice Gray.

Associate:

Date: 18 May 2006

Counsel for the prosecution: Mr B Standish

Solicitor for the prosecution: Office of the Director of Public Prosecutions (ACT)

Counsel for the accused: Mr S Gill

Solicitor for the accused: Legal Aid Office (ACT)

Date of hearing: 9 February, 22 March 2006

Date of judgment: 18 May 2006