Benjamin James Forbes v The Queen
[2009] ACTCA 10
•19 June 2009
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 (7th Australian ed, LexisNexis Butterworths, 2004)
Odgers S, Uniform Evidence Law (8th 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 at approximately 10.00 pm. After a trial by jury, the appellant was convicted.
The appellant had been charged with a separate offence of a sexual nature. That charge involved a different person and was alleged to have been committed on a different date. The appellant pleaded guilty to that offence. On 28 August 2007, he was sentenced in relation to this offence and the offence of unlawful sexual intercourse referred to in [1]. The sentencing judge imposed a sentence of imprisonment in relation to each offence, with part of the sentence for the offence of unlawful sexual intercourse to be served concurrently with the sentence for the other sexual offence.
The appellant appeals against his conviction for the offence of unlawful sexual intercourse and he claims in his notice of appeal that the verdict was unjust or unsafe having regard to the following matters:
1.The nature of the DNA evidence, as the only evidence identifying the appellant, made the verdict wholly reliant upon a statistical analysis which could not operate to remove all reasonable doubt;
2.The exculpatory material ought to have been sufficient, if the DNA evidence was properly understood, of raising a reasonable doubt;
3.The combined force of the DNA evidence and the exculpatory material was such as to be unable to properly remove all reasonable doubt.
The appellant also claims that if his appeal against conviction is successful then he has been sentenced upon an erroneous factual basis, presumably in relation to the other sexual offence. That is the only relevance to this appeal of the other sexual offence; it did not form any part of the prosecution case for the offence of unlawful sexual intercourse.
Relevant principles
This is an appeal under Part 2A of the Supreme Court Act 1933 (ACT). As Gummow, Hayne and Crennan JJ said in R v Hillier (2007) 228 CLR 618 (“R v Hillier”) at 632 [25]:
There is no persuasive reason to read the provisions of Pt 2A of the Act, spare as they are, as giving to the Court of Appeal of the Australian Capital Territory duties and powers in criminal appeals narrower than those described in Davies and Cody and held in Chamberlain [No 2] to apply in criminal appeals from Territories regulated by earlier, equally spare, legislative provisions.
In Davies and Cody v The King (1937) 57 CLR 170 (“Davies and Cody”), the High Court said (at 180) that a conviction will be set aside:
“whenever it appears unjust or unsafe to allow the verdict to stand because some failure has occurred in observing the conditions which, in the court’s view, are essential to a satisfactory trial, or because there is some feature of the case raising a substantial possibility that, either in the conclusion itself, or in the manner in which it has been reached, the jury may have been mistaken or misled.
In this case, the appellant does not suggest that there has been a failure to observe any conditions essential to a satisfactory trial. He does not challenge any ruling on evidence or any aspect of the trial judge’s summing up. His case on appeal is that the verdict is unjust or unsafe because there are features of the case raising a substantial possibility that the jury may have been misled or mistaken. In R v Hillier, Gummow, Hayne and Crennan JJ said (at 632 [25]) that the circumstances in which that conclusion may be drawn were identified in the joint reasons in M v The Queen (1994) 181 CLR 487 (“M”).
The joint reasons in M were the reasons of Mason CJ, Deane, Dawson and Toohey JJ. Their Honours addressed the type of case where, although it is accepted that, as a matter of law, there is evidence to sustain a verdict, nevertheless, it is said that the verdict is unsafe and unsatisfactory. Their Honours said that the question for the Court in such a case is whether the Court thinks that, upon the whole of the evidence, it was open to the jury to be satisfied beyond reasonable doubt of the guilt of the accused. In answering that question, the Court must pay full regard to the fact that the jury has the primary responsibility of determining guilt or innocence and to the fact that the jury has had the benefit of having seen and heard the witnesses (see at 493). A little later in their reasons, their Honours made the point (at 494) that an appeal court can examine the evidence itself and where it contains discrepancies, displays inadequacies, is tainted or otherwise lacks probative force such that the Court, even making full allowance for the advantages enjoyed by the jury, concludes that there is a significant possibility that an innocent person has been convicted, then the Court is bound to set aside a verdict based on that evidence. Their Honours said that the ultimate question is whether the Court thinks upon the whole of the evidence that it was open to the jury to be satisfied beyond reasonable doubt that the accused was guilty.
In essence, the appellant made two submissions on the present appeal. The first submission is not, as the argument developed, the type of submission discussed by the High Court in M. It is that the only evidence supporting a conclusion that he was the perpetrator of the offence was DNA evidence and that that evidence of its very nature could not support a conclusion of guilt. In other words, as we understood it, the appellant’s submission is that there is not, as a matter of law, evidence to sustain the verdict. The second submission, which assumes the failure of the first, is that, even though, as a matter of law, there is evidence to sustain the verdict, on the whole of the evidence it was not open to the jury to be satisfied beyond reasonable doubt that the appellant was guilty. Before considering these submissions, it is necessary to summarise the prosecution case and the defence case. The appellant relies on some of the evidence which emerged in the course of the prosecution case in support of his submissions.
The prosecution case
The prosecution case was that on 11 March 2005 at approximately 10.00 pm, K was walking from her place of employment to the house in which she was then living. She was walking along a bicycle path which was not well lit. She approached an area before a bridge, which was dark. As K was about to walk over the bridge, a man, who was holding a knife, approached her from the other direction and said she would not be hurt as long as she did what he wanted. She did not recognise the man who approached her. The prosecution case was that the appellant was the man who attacked K. They moved off the pathway into an area of trees where there were no lights. The appellant started kissing K, who said that she had her eyes closed during “most of this”. It was too dark for K to see whether the man had any “particular skin colouring”. The appellant then took K’s right hand and placed it over his penis on the outside of his clothing.
On the night of the offence, K was wearing a black singlet top, a black bra and black trousers. The appellant undid her bra after lifting her shirt. He kissed K’s breasts. He then removed his pants and placed K’s hand on his exposed penis. He then pushed K’s head down onto his penis and caused her to perform an act of fellatio on him. K said that she believes she still had her eyes closed. The appellant ejaculated in K’s mouth. He then pulled up his pants and told K to walk in the direction from which she had come. K described her attacker as fairly slim and about 10 to 15 centimetres taller than her. She is about 165 centimetres tall.
K was only asked three questions in cross-examination by counsel for the appellant. She said that her guess was that her attacker was in his late thirties.
Mr Matthew Ciantar was an Australian Federal Police officer and he was involved in the investigation of the offence. He interviewed K on 12 March 2005. He obtained a forensic sample from the appellant on 21 June 2005 and he took a photograph of him. A photoboard of nine photographs, including that of the appellant, was prepared. On 11 July 2005, K was shown the photoboard. She was not able to identify her attacker.
In cross-examination, Mr Ciantar agreed that K had said that her attacker was in his late thirties. He agreed that the appellant was in his late twenties at the time of the offence. He also agreed that K had said that her attacker’s penis was circumcised.
DNA samples were taken from K’s clothing. The samples were analysed and compared with a sample taken from the appellant and a sample taken from K. The prosecution called two witnesses to give evidence of the DNA testing and results, and the significance of the results. Ms Kirsty Leanne Pearson, who, at the relevant time, was an Australian Federal Police officer employed in the Biological Criminalistics section, and Mr Simon Joseph Walsh, who, at the relevant time, was a scientific adviser for the Biological Criminalistics section within the Australian Federal Police, were called by the prosecution. We will need to discuss their evidence in more detail later in these reasons but, for present purposes, the effect of the DNA evidence may be summarised as follows:
1. A DNA sample obtained by a tape lift from the outer surface of the left and right cups of the black bra revealed a partial mixed DNA profile from a minimum of three individuals and on analysis, and, when considered in isolation from other information, provided “strong” evidence to support the contention that the donor of the DNA reference sample relating to the appellant contributed to the partial mixed DNA profile obtained from the outer surface of the left and right cups of the black bra.
The likelihood ratio for “strong” is greater than 10,000 but less than 100,000.
2. A DNA sample obtained by tape lift from the inner surface of the left and right cups of the black bra revealed a partial mixed DNA profile from a minimum of three individuals and on analysis, when considered in isolation from other information, provided “extremely strong” evidence to support the contention that the donor of the DNA reference sample relating to the appellant contributed to the partial mixed DNA profile obtained from the inner surface of the left and right cups of the black bra.
The likelihood ratio for “extremely strong” is greater than 1 million.
3. Semen was detected on one of the legs of the black trousers. On DNA analysis, the conclusion was drawn that, when considered in isolation from other information, it provided “extremely strong” evidence in support of the conclusion that the appellant was the source of the DNA profile obtained from the sample cut from an area of staining on the front upper-right thigh area of the black pants.
The defence case
The appellant gave evidence. He denied committing the offence. He said that he was not circumcised and he produced a medical certificate from a medical practitioner to that effect. He said he was arrested some months after 11 March 2005 (it seems he was arrested on or about 17 August 2005) and that on the date of his arrest he could not remember what he was doing on 11 March 2005. He discussed the matter with his wife and they recalled that one of their young children turned 5 years of age on 15 March 2005. They were able to recall from that fact that the appellant’s wife had been very sick just before and after the child’s birthday, including on 11 March 2005. She went to hospital on 16 March 2005. The appellant was able to recall what he was doing on Friday, 11 March 2005. He said that his wife’s brother and his girlfriend attended his home to cook the dinner and they later went out and did the shopping. He said that he stayed home all night.
The appellant’s wife, Ms Amanda Lorraine Forbes, gave evidence. She said that she remembered being sick around that time (that is, around 11 March 2005). She said she thinks she first became sick on the Friday before her son’s birthday on 15 March 2005. The Friday before 15 March 2005 was 11 March 2005. Her evidence was to the effect that the appellant was home on the evening of 11 March 2005.
The defence case was that there was at least a reasonable possibility of innocence, having regard to the following:
1. What the appellant said were the limitations of the DNA evidence;
2. The appellant’s denial and alibi, and the evidence of his wife;
3. K’s failure to identify the appellant when shown the photoboard;
4. K’s statement to police that her attacker was circumcised, when the evidence was that the appellant was not circumcised; and
5. K’s description of her attacker as a man in his late thirties, when the appellant was at the time of the offence a man in his late twenties.
Was there, as a matter of law, evidence to sustain the verdict?
The appellant did not challenge K’s evidence that on 11 March 2005 she was attacked in the manner she described. The only live question in the case was whether the appellant was her attacker. The appellant submits that the only evidence which incriminates him in the offence is the DNA evidence, and that, of its nature, the DNA evidence could not establish beyond reasonable doubt his guilt of the offence with which he had been charged.
To consider this submission, it is necessary to set out in some detail the DNA evidence which the prosecution put before the jury. It is convenient to do that first by reference to the evidence of Ms Pearson and then by reference to the evidence of Mr Walsh.
Ms Pearson is a biologist with a Bachelor of Science degree and she explained the process whereby DNA material is identified in biological material. She explained that the entire genetic code of a human being is too large to analyse completely and that therefore particular sites or locations are selected for analysis. Ten particular locations have been identified. One is used to determine the sex of the provider of the sample.
The variations in length of DNA at the locations produce the particular DNA profile. Ms Pearson explained the method by which DNA material is analysed. She explained that a single-source DNA profile means that a DNA profile has come from a single individual; a mixed DNA profile means that the material comes from more than one individual. A partial DNA profile means that information is not present at all 10 locations.
Ms Pearson explained that there is a verbal scale of “strong” evidence, “very strong” evidence and “extremely strong” evidence. She said that those are the terms used in the laboratory and that they are based on statistical calculations which are performed. Ms Pearson said the results, in the case of the tape lift from the outside of the right and left cups of the black bra, provided strong evidence to support the contention that the appellant’s DNA is located within the crime scene sample. She said that she could not say that the appellant’s DNA is “definitely there”. Her laboratory “talks about the profiles, not an actual individual”.
In the course of her evidence in chief, Ms Pearson said:
We can say that the components that we’ve detected in that person’s reference sample are also seen in the crime sample, and then we do statistical calculations in order to be able to give some conclusion or some opinion as to the significance of that.
Ms Pearson said that semen was detected on the upper right leg of the black pants.
Ms Pearson said that, because the laboratory had not “tested every single person on the planet, we can’t say that it is definitely that person’s profile, so we always talk about the profiles and do the statistical calculation”. She said that analysing 10 locations is, in her opinion, appropriate for the type of investigation she was conducting.
In cross-examination, Ms Pearson agreed that she could not conclusively say that the DNA profile taken from the front of the black pants was from the spermatozoa. She agreed that the DNA which is tested is a “tiny portion” of the overall DNA of an individual person. Ms Pearson referred to the statistical calculation which looks at two different hypotheses, namely, that the person in question contributed to the DNA profile and a second hypothesis that another person, chosen at random from the ACT population, contributed to the DNA profile. She said:
And it’s only the statistical calculations that enable you to say that?‑ - - ‑
Yes, by looking at how often we observe those values within the ACT population then we’re able to give some meaning as to how often we have seen those values within the population.
Ms Pearson referred to an ACT population database which is used for the statistical calculations.
Mr Walsh holds a Bachelor of Science degree and, as we have said, he is a scientific adviser for the Biological Criminalistics section within the Australian Federal Police. He said that the words “strong”, “very strong” and “extremely strong” are used to represent numbers which resulted from a statistical calculation. The numbers represent a likelihood ratio and it is a ratio because it weighs one probability estimate against another. The probability estimates in a legal context are the prosecution hypothesis and the defence hypothesis. If the likelihood ratio is one million that means that one of the probabilities is favoured over the other by a factor of 1 million. The verbal equivalent of that likelihood ratio is extremely strong, and the verbal equivalent of a ratio of greater than 10,000 but less than 100,000, is strong. The likelihood ratio does not mean that there is only one person in a million or in between 10,000 to 100,000 with the particular DNA profile.
Mr Walsh said that there was an ACT database within the Biological Criminalistics section. The frequency of the components of a DNA profile is estimated by reference to the frequencies of a population database. The ACT population database has 620 individual profiles.
Mr Walsh explained the probability estimates and likelihood ratio in the following answers:
We’re able to use those probabilities as I said as a way of estimating, if you like the commonality or in many cases, the rarity of a particular profile in a particular population. But they can’t be used to provide an exact number. They are estimates. They’re statistical estimates only. And they aren’t real numbers, they aren’t real observations. So it’s important not to translate them from the estimates that they are to actual real expectations or real observed numbers.
…
To put some sort of numerical significance to a particular observation and that’s how we’re using them in this context. The difficulty arises, as we’ve just discussed, when you try to translate a particular probability to a real circumstance, if you like, a real defined population. You have to be cautious to remember that the statistical probability is a statistical probability and it is not an observed exact number. And that’s where the caution needs to lie. There’s nothing wrong with using that number to inform your opinion as to the strength of the evidence, that’s really what the number is designed to do. To inform your opinion as to how likely it is that you would see another person with that particular profile. That’s the purpose of the number, however, it doesn’t provide an absolute number or an exact number of what you will find.
Mr Walsh explained that scientists involved in DNA testing use conservative language because they, as scientists, cannot say with certainty what they have observed is “absolutely what has happened”. Another reason DNA scientists approach the question conservatively is because they are only dealing with 10 specific locations within the DNA chain and not the whole human genome profile. Mr Walsh explained that a likelihood ratio is ascertained for each of the nine locations (as we have said, the other location reveals the sex of the person tested) and then the figures are multiplied.
Mr Walsh agreed in cross-examination that there are two reasons that statistics were needed, and they are the fact that not every person on earth had been tested and the fact that only 10 locations are tested.
It is important to note that on the appeal the appellant did not argue that the DNA evidence was of limited value because of problems with the testing conducted or with possible contamination or with the nature and extent of the population database used or with the formulae employed. At trial, the prosecution experts were asked questions about those matters but they were not points raised on the appeal. Our reading of the evidence suggests that there were no difficulties of that nature which the jury was bound to take into account.
Nor did the appellant suggest that the trial judge did not explain adequately to the jury the DNA evidence and the use to which it could be put. There is no suggestion that the prosecutor’s fallacy crept into either the prosecutor’s concluding address or the trial judge’s summing up. The prosecutor’s fallacy is explained in Doheny and Adams [1997] 1 Cr App R 369 (“Doheny and Adams”) at 372-374; R v GK (2001) 53 NSWLR 317 (“GK”) at 328-329 [47]-[48] per Mason P. We have read the trial judge’s summing up to the jury and we think the DNA evidence and its effect were clearly and accurately summarised by the trial judge.
The appellant submits that where the only evidence incriminating an accused is DNA evidence and there is no supporting evidence such as identification evidence or evidence of motive or propensity then an accused must be acquitted. That comes about, submits the appellant, because the results of DNA testing and the conclusions to be drawn from those results can only ever be expressed in terms of a likelihood ratio. The appellant submits that the science of DNA does not enable the scientist to say that crime scene DNA is the accused’s DNA. As we have said, the appellant’s submission has the consequence that where the DNA evidence is the only evidence incriminating an accused then he or she must be acquitted. That would include a circumstantial case where DNA evidence is an indispensable link in the chain leading to guilt because it cannot be relied upon to prove the relevant fact beyond reasonable doubt. It would also mean that a submission could be made by an accused at the conclusion of the Crown case that there is insufficient evidence to support a conviction. Although it was not suggested it was fatal to the appellant’s case, no such submission was made in this case.
In this case, although the jury was no doubt required to consider all of the evidence, the decisive evidence incriminating the appellant was the DNA evidence.
Counsel for the appellant did not refer the Court to any express authority in support of his proposition and counsel for the respondent submitted that there was no authority. Our own researches have not revealed any authority on point except a reference, apparently supporting the appellant’s proposition, in Doheny and Adams at 373.
We think a number of matters are clear. First, the phrase “beyond reasonable doubt” is a time-honoured phrase and the Courts have warned against attempts to elaborate upon its meaning to the jury: Thomas v The Queen (1960) 102 CLR 584; Green v The Queen (1971) 126 CLR 28. Secondly, it is well established that the phrase “beyond reasonable doubt” does not reflect some calculation of percentage probability: R v Cavkic (2005) 12 VR 136 (see also Heydon JD, Cross on Evidence (7th Australian ed, LexisNexis Butterworths, 2004) 307-310 [9090]-[9095] (“Cross on Evidence”); Odgers S, Uniform Evidence Law (8th ed, Lawbook Co, 2009) 745-752 [1.4.200]-[1.4.220]. Thirdly, fingerprint evidence, which in some respects is analogous to DNA evidence, is routinely admitted and may be decisive: Cross on Evidence at 309 [9095].
Fourthly, and importantly, evidence of the likelihood ratio produced by statistical calculations is clearly admissible and, in an appropriate case, may be highly probative evidence: GK at 330-331 [56]-[59] per Mason P, at 341 [98] per Sully J. No doubt there are a number of matters which may affect the admissibility and weight of DNA evidence, as the decision in R v Pantoja (1996) 88 A Crim R 554 (“Pantoja”) illustrates, but that does not mean that DNA evidence cannot be highly probative evidence in an appropriate case. We note that, in R v Gibson (2001) 120 A Crim R 543, there was no suggestion of a rule or principle of the nature for which the appellant contends in this case, although there was some fairly weak identification evidence in addition to the DNA evidence in that case.
We do not think there is a rule or principle of the nature for which the appellant contends and we reject the appellant’s first submission.
Was it open to the jury on the evidence to be satisfied beyond reasonable doubt that the appellant was guilty?
The appellant’s second submission is that, having regard to the matters summarised in [18] above, this Court should conclude that upon the whole of the evidence it was not open to the jury to be satisfied beyond reasonable doubt that the appellant was guilty of the offence with which he had been charged. Ultimately, the evidence must be considered as a whole, but that cannot sensibly be done without first considering the individual items of evidence.
We start with K’s failure to identify the appellant when shown the photoboard. K said in her evidence in chief that it was dark and that she had her eyes closed at certain stages, if not for most of the attack. She was not asked any questions in cross-examination about her opportunity to see her attacker, or her failure to identify the appellant. We think that the jury was entitled to conclude that it was dark during the attack and that, from K’s point of view, the experience was a terrifying one. The jury was entitled to conclude that K’s failure to identify the appellant on the photoboard can be explained on these grounds.
With respect to K’s statement that her attacker was circumcised, we note K was not asked about her statement. She was not asked about her opportunity to make such an assessment or about her knowledge of such matters. There was no evidence before the jury about the morphology of the penis. We think that it was open to the jury to conclude that K’s statement was a guess or that she was mistaken.
With respect to K’s description of her attacker as a male in his late thirties, We do not think that is of any particular significance, and it is certainly of very limited relevance when one considers the conditions at the time of the attack, as summarised in [43] above.
That leaves for consideration the appellant’s denial, his alibi and the evidence of the appellant’s wife. The jury saw and heard the appellant give evidence. The jury was entitled to reject his evidence that he did not commit the offence and was at home throughout the evening of 11 March 2005.
The jury also saw and heard Ms Forbes give evidence. It was entitled to conclude that her evidence that the appellant was at home throughout the evening of 11 March 2005 was unreliable. In her evidence in chief, she said she had vague knowledge or vague memories of what she was doing on 11 March 2005. In cross-examination she agreed that on 16 March 2006 the police asked her questions about 11 March 2005 and that one question she was asked was whether the appellant could have gone out on the night of 11 March 2005. She agreed that she responded, “Yeah, but no”. It is clear from Ms Forbes’ evidence that, even if she was not mistaken and her evidence did relate to the evening of 11 March 2005, nevertheless, she was seriously ill that night and she spent considerable periods of the evening in bed or in the bathroom. It is not, of course, for this Court to conclude that Ms Forbes’ evidence was unreliable; it is sufficient for us to conclude that it was open to the jury to reject it.
The DNA evidence called by the prosecution was very powerful evidence and none of the matters advanced by the appellant, considered either individually or as a whole, lead us to the conclusion that it was not open to the jury to be satisfied beyond reasonable doubt of the appellant’s guilt of the offence with which he was charged. We reject the appellant’s second submission.
Conclusion
In our opinion, the appeal must be dismissed.
I certify that the preceding forty-nine (49) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Chief Justice Higgins and the Honourable Justice Besanko.
Associate:
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
Judges: Higgins CJ, Penfold and Besanko JJ
Date: 19 June 2009
Place: Canberra
REASONS FOR JUDGMENT
PENFOLD J:
I agree with Higgins CJ and Besanko J.
I certify that the preceding paragraph numbered (50) is a true copy of the Reasons for Judgment herein of the Honourable Justice Penfold.
Associate:
Date: 19 June 2009
Counsel for the Appellant: Mr S Gill
Solicitor for the Appellant: Legal Aid Office (ACT)
Counsel for the Respondent: Mr A Doig
Solicitor for the Respondent: Director of Public Prosecutions
Date of hearing: 16 February 2009
Date of judgment: 19 June 2009
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