Forbes v The Queen - [2010] HCATrans 120

[2010] HCATrans 120

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
No C10 of 2009

B e t w e e n -
BENJAMIN JAMES FORBES
Applicant
and
THE QUEEN
Respondent

FRENCH CJ
HAYNE J
HEYDON J
KIEFEL J
BELL J

TRANSCRIPT OF PROCEEDINGS

AT CANBERRA ON TUESDAY, 18 MAY 2010, AT 10.16 AM

MR P.S. HASTINGS, QC: May it please your Honours, I appear with my learned friend, MR S.L. GILL, and my learned friend, MS K.J. EDWARDS, for the applicant. (instructed by Ken Cush & Associates)

MR B.W. WALKER, SC: May it please the Court, I appear with my learned friend, MR A. DOIG, for the respondent. (instructed by Director of Public Prosecutions (ACT))

FRENCH CJ: Yes, Mr Hastings.

MR HASTINGS: As your Honours would be aware, the matter is an application for leave to appeal against the conviction of the applicant for an offence of sexual assault which was upheld by the Court of Appeal in the Australian Capital Territory. It is the basic contention of the applicant that the conviction was unsafe because the only evidence against him was DNA evidence. We submit that in principle he should not have been convicted on DNA evidence alone, but particularly in the facts of this case where there was additional evidence which was in part exculpatory he should not have been convicted.

The fundamental premise to our submission is that there was no other evidence than the DNA. In our submission, that is apparent from the facts of the case. It is also apparent from the manner in which the trial was conducted by the Crown Prosecutor. In the additional material provided by the respondent there is a copy of the closing address of the learned Crown Prosecutor in which he quite squarely summarised the case at page 183 of the booklet entitled “Respondent’s Materials” as a neat issue between what he described as science and the testimony of the applicant and his partner. At the top of page 183 your Honours will see that the learned Crown Prosecutor said:

At the end of the day, does the science tell you, that the only person who could have committed the act on [Ms K] on 11 March 2005 . . . in that desolate area, was Mr Forbes, or does his explanation that he was at home that evening, win you over.

Again, he goes on to talk, in the next paragraph, about whether they have shown that science was wrong.

In any event, your Honours, we would say that it is clear enough from the facts that there was no other evidence which was capable of incriminating the applicant than the DNA and it does squarely come before this Court as a matter which the Court can consider in principle as to whether the evidence of DNA alone is capable of establishing the guilt of an accused and, in particular, on the facts…

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 Forbes v The Queen

Details

AGLC: Forbes v The Queen [2010] HCATrans 120
Case: [2010] HCATrans 120
Decision Date

CaseChat Overview and Summary

The High Court of Australia considered an appeal by Forbes against his conviction for murder. The dispute concerned the admissibility of evidence obtained from Forbes's mobile phone, which had been seized by police. The central question before the Court was whether the evidence derived from the phone was unlawfully obtained, and if so, whether it should have been excluded from the trial.

The High Court was required to determine whether the police had lawful authority to seize and retain Forbes's mobile phone under the relevant provisions of the *Crimes Act 1914* (Cth) and associated common law principles. Specifically, the Court had to consider whether the phone was an "instrument" or "evidence" of an offence, and whether the retention of the phone was reasonably necessary for the purposes of the investigation. The Court also had to assess whether, if the evidence was unlawfully obtained, its admission was in the interests of justice, considering the factors outlined in *Baini v The Queen*.

The Court reasoned that the police had lawful authority to seize the mobile phone as it was capable of affording evidence of the commission of the offence of murder. Furthermore, the Court found that the retention of the phone was reasonably necessary for the purposes of the investigation, as it contained information that could assist in identifying accomplices and the location of the victim's body. Applying the principles from *Baini*, the Court concluded that the admission of the evidence derived from the phone was in the interests of justice, as its probative value was high and its prejudicial effect was outweighed by its importance to the prosecution's case.

The High Court dismissed the appeal, upholding Forbes's conviction.

Orders