R v Forbes [2009] ACTSC 1 (5 February 2009)

Last Updated: 16 March 2009

R v BENJAMIN JAMES FORBES [2009] ACTSC 1 (5 February 2009)

CRIMINAL LAW – trial by judge alone – evidence – identification evidence – photo-board – matters to be considered taken into account in assessing reliability.

Supreme Court Act 1933 (ACT), s 68C

Criminal Code 2002 (ACT), s 308

Crimes Act 1900 (ACT), s 53 s 235

Evidence Act 1995 (Cth), s 53, s 116, s 165

Fleming v The Queen [1998] HCA 68; (1998) 197 CLR 250

R v Clarke (1997) 97 A Crim R 414

Craig v R [1933] HCA 41; (1933) 49 CLR 429

No. SCC 179 of 2005

Judge: Gray J

Supreme Court of the ACT

Date: 5 February 2009

IN THE SUPREME COURT OF THE )

) No. SCC 179 of 2005

AUSTRALIAN CAPITAL TERRITORY )

THE QUEEN

v

BENJAMIN JAMES FORBES

ORDER

Judge: Gray J

Date: 5 February 2009

Place: Canberra

THE COURT FINDS THAT:

1. The accused is not guilty of the two charges on the indictment.

1. On 12 November 2007, Benjamin James Forbes (the accused) was arraigned before me on two charges:

... THAT on the 8th day of June 2005 at Canberra [he] threatened to inflict actual bodily harm on [the complainant] with intent to engage in sexual intercourse with the said [the complainant].

AND FURTHER THAT on the 8th day of June 2005 at Canberra [he] dishonestly appropriated property namely a Nokia 3120 mobile telephone belonging to [the complainant], with the intention of depriving the said [the complainant] of the property.

The accused pleaded not guilty to these charges.

2. Before the court first allocated a date for the trial of these charges the accused elected to be tried by judge alone. Section 68C of the Supreme Court Act 1933 (ACT) provides that a judge who tries a criminal proceeding without a jury may make any finding that could have been made by a jury as to the guilt of an accused person and such finding has the same effect as a verdict of a jury.

3. My judgment in this proceeding is to include the principles of law that I apply and the findings of fact upon which I rely. Further, I must explain the reasoning process linking those matters so as to justify the verdict to which I come (Fleming v The Queen [1998] HCA 68; (1998) 197 CLR 250).

4. I must take account of the warnings that would be given to a jury.

General directions and principles

5. I give effect to the following general directions.

6. As far as the conduct of the trial is concerned, I direct myself in accordance with the law in relation to all of the matters which a jury would ordinarily be directed before retiring to consider its verdict. The accused is entitled to have a fair trial according to law. As the tribunal of fact, as well as the tribunal of law, it is my function to find the facts and to draw inferences from them as well as to apply the law to those proven facts. I must deliver my verdict according to the evidence. The burden of proving the charge lies wholly on the prosecution and no burden at all lies upon the accused. If the accused makes or points to an explanation which is consistent with innocence, the accused does not have to prove it. It is for the prosecution to disprove it or show that it is irrelevant, otherwise the prosecution will not have proved its case. The accused is presumed to be innocent until, at the conclusion of the hearing, the evidence establishes guilt. The standard of proof lies upon the prosecution to prove each and every element of the offence beyond reasonable doubt. Where, in this judgment, I make a finding of a particular fact, or speak of being satisfied of any matter, I reach that finding having been satisfied beyond reasonable doubt.

7. It is for the prosecution to prove each and every element of the charge beyond reasonable doubt before a verdict of guilty can be returned. If I am satisfied that there may be an explanation consistent with the innocence of the accused in respect of any charge, or I am unsure where the truth lies, then in those circumstances, I must find the charge has not been proved to the level of satisfaction required by the law and must acquit.

Threat to inflict actual bodily harm with intent

8. Subsection 53(1) of the Crimes Act 1900 (ACT) provides for the offence of threatening to inflict actual bodily harm on another person with intent to engage in sexual intercourse with that other person. The offence is constituted by the threat of actual bodily harm made to that person accompanied by a specific intent to engage in sexual intercourse.

Theft

9. Section 308 of the Criminal Code 2002 (ACT) provides for the offence of theft if the person dishonestly appropriates property belonging to someone else with the intention of permanently depriving the other person of the property. There are no issues in this case of what amounts to dishonesty or the appropriation being without the consent of the person to whom the property belongs.

The issue

10. The accused conceded at the outset that the offences had occurred at the date and place set out in the indictment. The sole issue was whether the prosecution could prove beyond reasonable doubt that the accused was the offender.

The commission of the offences

11. The accused did not challenge the evidence of the complainant as to what occurred between her and the offender who threatened to inflict actual bodily harm and took her mobile phone. These events occurred on the evening of 8 June 2005 at about 7:45 pm. The complainant, who at that time was 17 years of age, was walking on a bike path that traverses a relatively open area beside the Lyneham High School on the way to the Lyneham Shops. She was doing so because her then boyfriend lived nearby. As she was doing so, a person approached her from behind and put his arm around the right hand side of her neck. That person had a knife in his hand. She saw and felt the blade touch her neck. The first noise she heard was “shush”. She was forced to walk further down the path by being pushed forward with the person behind her pushing her. Her hands were behind her back and her fingers held. She initially thought that this was a joke and that it was her boyfriend, although he had never done anything of this kind before. She quickly realised that this was not so because of the knife. She was taken down the path for some distance and then off the path towards some bushes. She exhibited significant presence of mind by asking her assailant for a name and school that the person went to. She got a response that the name was “Michael” and that he went to Kambah or Canberra High. Other things were said which she does not now recall. When they were a short distance off the path, the offender demanded oral sex.

12. During this incident, she received a call on her mobile phone from her boyfriend. She managed to answer the phone despite the offender saying, “You’re not answering”. She says that she hung up. The phone rang a second time, again from her boyfriend, and she asked him to come to Lyneham High. At about that time the offender punched her in the face some four or five times. The punching occurred from the front. She says that she saw the offender’s face four or five times, presumably while he was punching her. There was conversation at this time but she does not remember it. The offender then took her phone and ran off in the direction of Lyneham High School. She ran to the Lyneham Shops. At the Lyneham Shops she spoke to her boyfriend and he rang the Police. The complainant also spoke to the Police and described her attacker at the time.

13. She described her assailant in the call to police emergency as a male, wearing a dark jacket. She was prompted as to blue denim jeans and she responded by saying she thought that they were blue. She described her assailant’s hair as probably dark brown or black and his age at “probably about seventeen, eighteen”. Later in the call she said that he was just a bit taller than herself, “about a hundred and sixty, hundred and seventy centimetres, maybe”. She said his build was medium and because it was dark, she says that she could not tell the police of any distinguishing features.

14. In her evidence before me, she described a male person of similar height to herself. She said the person was white, not wearing a hat or glasses, clean shaven and was around her age at the time, 17 or 18.

15. The complainant undoubtedly underwent a frightening and traumatic experience. However, she exhibited a great presence of mind in not only attempting to defuse the situation by asking the offender his name and what school he attended, but also dissuading her boyfriend from attempting to follow or move upon her attacker by telling him that there was more than one person who attacked her.

16. Generally, I must say that I am impressed with the self-possession shown by the complainant and the control that she exhibited in this traumatic and terrifying experience. I consider her to be a witness upon whom I can rely to describe as best she is able the events, and her recollection of those events.

17. A few hours after the incident, the complainant was asked to provide a photo-fit description of her assailant. However, the face-fit images stored on the server that the program accessed at the time the complainant was asked to perform the photo-fit exercise have been lost because the server “crashed”. That circumstance was discovered prior to the evidence to be given before me on the voir dire in November 2007. However, the overall resemblance to her assailant the victim described as a 75% resemblance. She said in evidence that she was dissatisfied with the image. She also appreciated that doing the photo-fit image might have altered the way she remembered the person.

18. As far as the weight to be given to the evidence constituted by the composite photo-fit picture was concerned, Constable Ladd, who conducted the face-fit in answer to the significance of the 75% resemblance said:

The significance is - of it is that when we run through this two day course, where they teach us how to use it and compile a face, they use an example whereas anything less than sort of 80 per cent, isn’t really good enough to be used for identification purposes or for anything really. We try and aim, as best as possible, to get a facial image as close to the description that the witness has given us. But - and as I said, we target to try and get above 80 per cent, or as high as we can. Anything below that just means it’s not very good, whether it be the witness’s recollection isn’t that great or we just weren’t able to compile an image that resembled what she was trying to get out.

The admissibility of photo-board identification

19. On 7 July 2005, police conducted a photo-board identification procedure with the complainant. The evidence of this procedure was the subject of objection by way of submissions on the voir dire which took place on 12 November 2007 after the accused had been arraigned. Although a number of issues were raised by Mr Gill, who appeared as counsel for the accused, the ones that were finally pressed were based upon s 235 of the Crimes Act 1900.

20. It was put that s 235(2)(b) of the Crimes Act had not been complied with. That provision provides:

(2) If a police officer investigating an offence shows photographs or pictures to a witness for the purpose of establishing, or obtaining evidence of, the identity of a suspect, whether or not the suspect is in custody, the following rules apply:

...

(b) each photograph or picture of a person who is not the suspect shall be of a person who—

(i) resembles the suspect in age and general appearance; and

(ii) does not have features visible in the photograph or picture that are markedly different from those of the suspect as described by the witness before viewing the photographs or pictures;

21. It was said that the consistent description given by the complainant was of a person 17 or 18 years of age. The video board preparation form records that the ages of the participants at the time of the array were as to one of them 29 years of age, one 28, three 27 (including the accused), two 22, one 20 and one 19. In my view, much of the force of the complaint is removed when account is taken of the ages of the persons when the photographs were in fact taken. In that case (excluding the accused) one of the participants was 27, one 26, two 25, two 19 and two 17.

22. I also found it impossible from my age perspective to say that the photos clearly appeared to be of persons outside the 17 or 18 age description.

23. The photos appeared to me to be of an age that would satisfy the resemblance and features requirement of s 235(2)(b) of the Crimes Act. I took the view that unless, by evidence, it could be shown that my view was incorrect, I should find that there had been compliance with the rule set out in s 235(2)(b). The accused asked for the opportunity to consider his position in light of this.

24. I excluded the accused from the summary of ages that I earlier gave because the form records the date that his photo was taken as 22 June 2003. As a consequence, Mr Gill sought to invoke the further rule contained in s 235(2)(d) of the Crimes Act. That rule provides:

(d) if practicable, the photograph or picture of the suspect shall have been taken or made after he or she was arrested or was considered as a suspect;

25. The proceedings were adjourned to enable this aspect to be investigated.

26. The trial was not next able to be continued before me until 24 November 2008. On the point as to the date upon which the photograph of the accused had been taken, material was produced by the prosecution that the date should have been recorded on the photo identification form as 22 June 2005, not 22 June 2003. Mr Forbes was arrested on 21 June 2005. That meant that the rule comprised in s 235(2)(d) had been satisfied.

27. After some debate as to whether I could revoke a ruling as to the admissibility of the photo-board evidence in the event that evidence emerged in the defence case to show that there had not been compliance with the age and resemblance requirements of the rule in s 235(2)(b), no further evidence was called. Accordingly, I ruled that the photo-board evidence was admissible.

The view

28. I was asked by both counsel to undertake a view of the area where the incident occurred. It was requested that the view take place about 9:00 pm on the evening that the request was made.

29. Sub-sections 53(1), (2) and (3) of the Evidence Act 1995 (Cth) provides:

(1) A judge may, on application, order that a demonstration, experiment or inspection be held.

(2) A judge is not to make an order unless he or she is satisfied that:

(a) the parties will be given a reasonable opportunity to be present; and

(b) the judge and, if there is a jury, the jury will be present.

(3) Without limiting the matters that the judge may take into account in deciding whether to make an order, the judge is to take into account the following:

(a) whether the parties will be present;

(b) whether the demonstration, experiment or inspection will, in the court's opinion, assist the court in resolving issues of fact or understanding the evidence;

(c) the danger that the demonstration, experiment or inspection might be unfairly prejudicial, might be misleading or confusing or might cause or result in undue waste of time;

(d) in the case of a demonstration—the extent to which the demonstration will properly reproduce the conduct or event to be demonstrated;

(e) in the case of an inspection—the extent to which the place or thing to be inspected has materially altered.

30. It was said that there had been some change in the housing that has been developed around the area, a different time of the year, a slightly different phase of the moon but reasonably similar atmospheric conditions. The purpose put by Mr Gill, for the accused, was to assist my understanding of the particular conditions appertaining to the complainant’s identification of her attacker and thereby better enable me to assess the reliability of her identification. It was agreed by counsel that the complainant would attend before my inspection and identify, by way of markers, the particular points relevant to what she was to say had happened.

31. Having regard to the matters that I am to take into account, I assented to the application that I inspect the area where the offences were said to have taken place.

32. As it transpired, the view was of limited use to me. It certainly enabled me to get a better feel for visibility at the scene generally in conditions of darkness in a relatively open area. However, the position where the actual demand for oral sex was made, and where the complainant had the opportunity to see her attacker, is now built over and comprises a number of residential units alongside the pathway where the attacker first encountered the complainant.

The photo-board identification

33. The prosecution case is dependant entirely upon the identification of the accused as the complainant’s attacker.

34. The complainant was shown a photo-board by way of video images of eight male persons. The images were sequentially shown for about 15 seconds each. After that showing, she told the presenter, “Well, it’s sort of a toss-up between two and eight”. She was then shown those two images again and she identified number eight as the person she saw on the night of the assault. She was asked in cross-examination about this identification:

You asked to see those two images because they were the two that you thought it could possibly be?---Yes.

And when you compared image number 2 and image number 8 that made you more confident that it was image number 8?---Yes.

And at that stage was that when you became a 100% satisfied?---Yes.

Right. But until that point you thought that it was a tossup between 2 and 8?---I thought it was a possibility between 2 and 8, yes.

Do you remember if you said to the police that you thought it was a tossup between 2 and 8?---Yes.

But what you’re saying to the court is that you’ve become 100% certain from that time on that the image that you picked was the person rather than just simply somebody who looked like the person?---Yes. No, it’s - I’m 100% confident that that’s the person.

The photo-board image that the complainant identified is that of the accused.

35. The accused denied on oath that he was at the scene of the attack. Dr Richard Kemp was called as an expert psychologist specialising in visual face recognition. His expertise was not challenged. He did not seek to give evidence as to the specific identification in this case but as to issues which affect identification accuracy in general. I found his evidence helpful.

36. Section 116 of the Evidence Act requires:

(1) If identification evidence has been admitted, the judge is to inform the jury:

(a) that there is a special need for caution before accepting identification evidence; and

(b) of the reasons for that need for caution, both generally and in the circumstances of the case.

(2) It is not necessary that a particular form of words be used in so informing the jury.

37. Sub-section 165(1) of that Act also provides that identification evidence is evidence of a kind that may be unreliable. In that respect, s 165(2) provides:

(2) If there is a jury and a party so requests, the judge is to:

(a) warn the jury that the evidence may be unreliable; and

(b) inform the jury of matters that may cause it to be unreliable; and

(c) warn the jury of the need for caution in determining whether to accept the evidence and the weight to be given to it.

38. In the present case, because the reliability of the identification evidence is challenged, I take into account that there is a special need for caution before I accept that evidence. That means more than just examining the evidence “closely” or “carefully”; it means that the danger that the evidence may be unreliable must be overcome before the evidence is accepted as reliable (see R v Clarke (1997) 97 A Crim R 414 at 428).

39. The reason for this special need for caution is that there have been occasions where innocent persons have been convicted on the basis of mistaken identification. Experience has shown that honest witnesses who have expressed certainty have, in fact, been shown to be mistaken. There is a very real problem in estimating the weight to be given to such evidence and the tendency to overestimate the weight of the identification evidence.

40. In the present case, I was also asked by Mr Gill to give effect to the approach which commanded itself to Evatt and McTiernan JJ in Craig v R [1933] HCA 41; (1933) 49 CLR 429 at 446.

An honest witness who says "The prisoner is the man who drove the car," whilst appearing to affirm a simple, clear and impressive proposition, is really asserting: (1) that he observed the driver, (2) that the observation became impressed upon his mind, (3) that he still retains the original impression, (4) that such impression has not been affected, altered or replaced, by published portraits of the prisoner, and (5) that the resemblance between the original impression and the prisoner is sufficient to base a judgment, not of resemblance, but of identity. It therefore became necessary, in the present case, to pay attention to the following circumstances:--(1) Whether the witness was a stranger to the driver of the car, (2) whether the driver had any special peculiarities which, at the time, impressed themselves upon the witness, (3) the length of time which elapsed between December 14th and (a) the time when the witness first described the driver or (b) the time when the witness saw the accused person, (4) the description of the driver given by the witness before seeing the prisoner, and (5) the circumstances under which the prisoner was first seen and identified by the witness as the driver.

41. I note firstly that the accused was not known to the complainant. The issue in this case needs to be approached on the basis that there can be more confidence in the opinion of a person making the identification when that person knows the person that is the subject of the identification.

42. It was put that the complainant was unable to observe any distinguishing features of her attacker. On the other hand, it was not suggested that the accused had such distinguishing features.

43. The complainant formed an immediate conclusion as to the age of her attacker. That conclusion is manifest from her asking her attacker what school he went to. The accused is some ten years older than her assessment. On the other hand, some people do look younger than their age and I can, as the fact finder, say that the accused appears to me to be one of those persons. Dr Kemp said that researchers seem agreed that the age estimations fall in the range of plus or minus two to four years. He also said that the accuracy is even greater for “estimates of a face” which is actually within the peer group. I take that consideration into account

44. The opportunity to observe the attacker was short, in circumstances of poor visibility and accompanied by physical trauma. As well there was the presence of a weapon to distract the focus of the observer.

45. As far as the time between the attack and identification is concerned, Dr Kemp makes the point that memory research has a “forgetting curve” describing the fact that most forgetting occurs early on and then slows down. His opinion was that the four weeks between the observation and the photo-board should be regarded as a long delay.

46. On the other hand, the face-fit prepared a few hours after the event, Dr Kemp regarded as a positive. He was not asked about the degree of accuracy that the complainant assigned to the face-fit. As a matter of impression, the face-fit and the photo-board image do not look alike. That factor would seem to negate a displacement or transference factor from the face-fit image. As well, Dr Kemp regarded the complainant as insightful in her evidence in that she recognised the possibility of her identification being affected in that way. On the other hand, the fact that the face-fit and photo-board image are different in the way that I perceive them, must be weighed in the overall assessment. Indeed, the fact that they are different may be reflective of the 75% accuracy that the complainant assigned to the photo-fit image.

47. Another factor is the reservation expressed by Dr Kemp as to the photo-board procedure itself. He was of the view that a procedure where all the images (or persons in a line-up) are shown at the one time encourages witnesses to make relative judgments. If images are shown sequentially and the witness asked for a yes or no decision on each showing, that encourages an absolute judgment. Dr Kemp’s view was that a procedure of that kind “has been shown to considerably reduce the number of false identifications”. His opinion as to this was not challenged and it is a factor that I consider that I should take into account.

48. All these matters need to be considered against the overall favourable impression that I have of the complainant as a reliable witness. From my viewing of the video of the photo-board identification made by the complainant, there is nothing that causes me concern as to the manner and confidence shown by the complainant in making her identification of the photo-board image of the accused.

The evidence of the accused

49. The accused has given evidence on oath and has denied the attack. He also denied that he was in the location where the attack took place. He maintains that he was at home with his wife at the time looking after their three children. He says that also present at that time was his wife’s brother and his partner. He says that he has only been to the location of the attack on one other occasion. That was on 21 June 2005. The police who had had the area under surveillance since the attack on the complainant arrested him. He says that his reason for being in the area was that he was returning from visiting his sister in the adjoining suburb of Braddon, that he was “flashed” by a police vehicle and, being an unlicensed driver, he turned off the main road he was on and fled his vehicle. That took him into the area that the police had under surveillance.

50. Having heard and seen the accused give evidence, I must say that I do not regard him as a particularly convincing witness. I have significant reservations about the reason that he gives for being in the area on 21 June 2005. However, these reservations do not provide any confirmation of the prosecution case.

Alibi

51. The accused called three witnesses to support his evidence that he was at his home at the time of the attack on the complainant. His wife, Amanda Forbes, gave evidence that after the accused’s arrest on 21 June 2005, she worked out what she was doing on Wednesday, 8 June 2005, the day of the attack on the complainant. Her evidence was that on Wednesday nights Kirsty Thompson, the fiancée of her brother Nathan Starkey, would come to her house to study. She remembered that particular night by reference to the fact that she had just enrolled in a writing course and that, as a consequence, the next day she went with her brother to purchase a printer to assist her in her studies. A receipt for that purchase was produced as was a receipt for payment for the writing course dated 8 June 2005. She said she and Kirsty also watched the TV show “Big Brother” which they did together six days a week. That show commenced at 7:00 pm. Her brother was also there and her husband looked after their three children. There was a camera in the lounge room and a monitor in the room that she was in. The children needed to be watched at all times as they have slow global development delay and behavioural problems. She said she would have known if her husband was not in the house that evening.

52. Kirsty Thompson confirmed that she was studying for a certificate in aged care, that on Wednesdays she studied with Amanda Forbes and that she and Nathan Starkey were at the house on the evening of Wednesday, 8 June 2005. She said that she saw the accused, “All evening pretty much” and that “Nathan and Ben were pretty much playing the Sony [Playstation] all night and getting up and down to the kids and what have you”.

53. Nathan Starkey also confirmed that he, too, was at the house on Wednesday, 8 June 2005 and that he accompanied his sister when she purchased a printer the next day. He was asked what the accused was doing that evening and he said, “Sitting with me and helping out with the kids”. He was cross-examined about playing the Sony Playstation with the accused and said that was in the same room as Amanda and Kirsty were watching TV. He agreed to a question in cross-examination that the watching TV and playing games on the Playstation could take place together. The matter was not pursued and it may be the question was misunderstood.

54. There were a number of other discrepancies in the evidence given by the accused and these witnesses. The accused said his employment at the time was “very casual” and that he was not working on 8 June 2005. That was contrary to the evidence of the other three witnesses that at that time the accused was in full-time employment.

55. The evidence of the accused’s wife was based on the premise that the accused was in another room of the house but she knew he was there because of the closed circuit monitor. That was not the evidence of the other two witnesses. Another discrepancy related to the occasions when the accused was away from the house, purportedly visiting his sister or doing the shopping before the evening meal.

56. Mr Doig, for the prosecution, in his closing address stressed that I should have “a real degree of disquiet about this evidence”. However, that is not enough for me to reject the evidence out of hand. Although it was suggested in cross-examination that the evidence of the witnesses had been discussed amongst themselves, that suggestion falls far short of a collaboration to concoct false evidence. Nor am I satisfied that the three witnesses were mistaken about the occasion to which their evidence was directed. In my view, the evidence of identification is not so overwhelmingly strong for me to say that these witnesses were, in fact, mistaken as to the accused being in the house with them on the evening of 8 June 2005.

57. That being the position, I have a reasonable doubt that the accused is the person who attacked the complainant on the occasion in question.

58. I find the accused not guilty of the two charges on the indictment.

I certify that the preceding fifty-eight (58) numbered paragraphs are a true copy of the Reasons for Judgment herein of his Honour, Justice Gray.

Associate:

Date: 5 February 2009

Counsel for the prosecution: Mr A Doig

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

Counsel for the accused: Mr S Gill

Solicitor for the accused: Legal Aid Office (ACT)

Date of hearing: 12 November 2007, 24-28 November 2008

Date of judgment: 5 February 2009