Benjamin James Forbes v The Queen - [2009] ACTCA 10

BENJAMIN JAMES FORBES v THE QUEEN
[2009] ACTCA 10 (19 June 2009)

EVIDENCE – DNA evidence – appellant convicted by jury of offence of unlawful sexual intercourse – appellant did not challenge that victim was attacked but denied being perpetrator – whether, where DNA evidence only evidence supporting conclusion that appellant was perpetrator, DNA evidence can support conclusion of guilt – whether on whole of evidence it was open to jury to be satisfied beyond reasonable doubt that appellant was guilty – where appellant identified matters said to give rise to reasonable possibility of innocence

Held: appeal dismissed – DNA evidence capable of supporting conclusion that appellant was perpetrator and open to jury to be satisfied beyond reasonable doubt that appellant was guilty.

Supreme Court Act 1933 (ACT) Pt 2A

Davies and Cody v The King (1937) 57 CLR 170
Doheny and Adams [1997] 1 Cr App R 369
Green v The Queen (1971) 126 CLR 28
M v The Queen (1994) 181 CLR 487
R v Cavkic (2005) 12 VR 136
R v Gibson (2001) 120 A Crim R 543
R v GK (2001) 53 NSWLR 317
R v Hillier (2007) 228 CLR 618
R v Pantoja (1996) 88 A Crim R 554

Thomas v The Queen (1960) 102 CLR 584

Heydon JD, Cross on Evidence (7^th Australian ed, LexisNexis Butterworths, 2004)
Odgers S, Uniform Evidence Law (8^th ed, Lawbook Co, 2009)

ON APPEAL FROM A SINGLE JUDGE OF THE SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY

No. ACTCA 32 - 2007
No. SCC 199 of 2005
No. SCC 235 of 2005

Judges: Higgins CJ, Penfold and Besanko JJ
Court of Appeal of the Australian Capital Territory
Date: 19 June 2009

IN THE SUPREME COURT OF THE     )          No. ACTCA 32 - 2007
  )          No. SCC 199 of 2005
AUSTRALIAN CAPITAL TERRITORY )          No. SCC 235 of 2005
  )

COURT OF APPEAL )

ON APPEAL FROM A SINGLE JUDGE OF THE SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY

BETWEEN: BENJAMIN JAMES FORBES
Appellant

AND: THE QUEEN
Respondent

ORDER

Judges:  Higgins CJ, Penfold and Besanko JJ
Date:  19 June 2009
Place:  Canberra

THE COURT ORDERS THAT:

The appeal be dismissed.

IN THE SUPREME COURT OF THE     )          No. ACTCA 32 - 2007
  )          No. SCC 199 of 2005
AUSTRALIAN CAPITAL TERRITORY )          No. SCC 235 of 2005
  )

COURT OF APPEAL )

ON APPEAL FROM A SINGLE JUDGE OF THE SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY

BETWEEN: BENJAMIN JAMES FORBES
Appellant

AND: THE QUEEN
Respondent

Judges:  Higgins CJ, Penfold and Besanko JJ
Date:  19 June 2009
Place:  Canberra

REASONS FOR JUDGMENT

HIGGINS CJ and BESANKO J:

This is an appeal against conviction. The appellant was charged on an indictment with the offence of engaging in sexual intercourse with one K without her consent and knowing that she did not consent. K was a 17 year old female at the time of the offence and the offence was alleged to have taken place on 11 March 2005…

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 Benjamin James Forbes v The Queen

Details

AGLC: Benjamin James Forbes v The Queen [2009] ACTCA 10
Case: [2009] ACTCA 10
Decision Date: 19 June 2009

CaseChat Overview and Summary

The appeal of Benjamin James Forbes against his conviction for unlawful sexual intercourse was heard by the Full Court of the Supreme Court of South Australia. The central dispute concerned whether the DNA evidence presented at trial was sufficient to establish beyond reasonable doubt that Mr Forbes was the perpetrator of the offence, given that he did not dispute the victim's account of the attack but denied his involvement.

The court was required to determine two primary legal issues. Firstly, whether DNA evidence, when it is the sole evidence linking the appellant to the commission of the offence, can be sufficient to support a conclusion of guilt. Secondly, the court had to consider whether, on the entirety of the evidence, it was open to the jury to be satisfied beyond reasonable doubt that the appellant was guilty, particularly in light of matters raised by the appellant that he contended gave rise to a reasonable possibility of his innocence.

The Full Court reasoned that DNA evidence is inherently capable of supporting a conclusion that an accused person is the perpetrator of an offence. The court found that it was open to the jury to be satisfied beyond reasonable doubt of the appellant's guilt based on the DNA evidence, notwithstanding the appellant's submissions regarding alternative possibilities. The appeal was therefore dismissed.

Orders

Orders of the court

The appeal be dismissed.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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