Forbes v The Queen

[2010] HCATrans 45

[2010] HCATrans 045

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

Application for special leave to appeal

FRENCH CJ
CRENNAN J

TRANSCRIPT OF PROCEEDINGS

AT CANBERRA ON FRIDAY, 12 MARCH 2010, AT 9.33 AM

Copyright in the High Court of Australia

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

MR D.F. JACKSON, QC:   If the Court pleases, 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 will be aware this is an application for leave to appeal against a decision of the Court of Appeal in the Australian Capital Territory upholding the conviction of the applicant for an offence of sexual assault in which the evidence was virtually, we say, in the form of DNA analysis results.  The point of the application, which we contend is one of general application and, therefore, appropriate for the grant of leave, is that the conviction is unsafe because DNA evidence alone was insufficient to establish the guilt of the accused beyond reasonable doubt in the absence of any other circumstantial evidence which would give colour and weight to the DNA analysis results.

CRENNAN J:   Is your complaint a wider one than a complaint, in essence, about the absence of a direction of the kind described in R v Green, the unreported decision of the New South Wales Court of Criminal Appeal, 26 March 1993?

MR HASTINGS:   That is part of it, your Honour, yes.

CRENNAN J:   That is part of it, but not the whole of it?

MR HASTINGS:   Well, it is part of it in the sense that there were various points, it seems to me with the benefit of hindsight, at which this point could have been taken.  It could have been taken about the form of the address, it could have been taken at the point of seeking a verdict by direction, but it was not taken until – well, it was a point raised during the trial, but the precise broader point was not taken until on appeal.  However, we take some comfort from the fact that the Court of Appeal embraced the point and dealt with it in a way in which we say was erroneous.

FRENCH CJ:   Was there any objection taken to the conclusionary labelling of particular statistical results as strong or extremely strong evidence?

MR HASTINGS:   No, your Honour.  That seems to be now part of DNA law.  There seems to be a common practice now of putting labels on the statistical results ‑ ‑ ‑

CRENNAN J:   An agreed discourse.  In other words, agreed terms which keep being repeated.

MR HASTINGS:   Agreed amongst the DNA fraternity as an appropriate way in which to classify the results and it seems to be now common in the way that DNA evidence is presented.  That is not to say it is correct, but nevertheless it now seems to be an accepted practice that the evidence would adopt that terminology.

Your Honours, it seems to me that in order to demonstrate that the point arises for consideration I need to make good the factual premise upon which it is based.  We submit that the only evidence capable of incriminating the accused was the DNA evidence.  The respondent’s submissions, it will be noted, refer to the case comprising four parts.  In our submission, that does not accurately reflect the nature of the case.

FRENCH CJ:   When you say – just before you go any further – DNA evidence, and I notice that is the term you have used in the draft notice of appeal, you are using that as a shorthand to refer to expert evidence concerning the results of DNA comparisons.

MR HASTINGS:   Yes, which are based on statistical theories rather than reality.

FRENCH CJ:   It is the expert testimony at trial in relation to the samples taken from the victim and those from the accused.

MR HASTINGS:   Yes.  Your Honours will note that the respondent has referred to the case being of four parts; that is the evidence of the complainant and then three separate parts as described in relation to three results for DNA analysis of different samples from different parts of the clothing of the complainant.  In our submission those three parts really are just one.  The fact that there are three separate results does not add to the probative value of those results because it was equally plausible that indeed the same person was the contributor in each case, but none of the circumstances in which those separate pieces of DNA were identified and sampled had any particular facet of the evidence which enhanced the probative value of one result compared with the other.

Your Honours will have noted that in very short form as we have described in the submissions the case was quite simple.  The victim was assaulted at night in circumstances in which she understandably was not able to identify or describe with any certainty the attacker.  To the extent that she did provide a description it did not accord with the applicant.  She gave an estimate of age which did not accord with the applicant.  She described the attacker as being circumcised, which was also inconsistent with the applicant; and she was not able to identify the applicant from a photo board examination. 

In addition the applicant and his wife gave evidence to the effect that after the event they had endeavoured to work out what he had been doing that night and to the best of their recollections both of them gave evidence to the effect that they thought that he had not left the home that night.  That was imperfect because they were not able to be precise about it.  Nevertheless, it was sworn evidence in front of the jury.

FRENCH CJ:   It was obviously disbelieved in the end.

MR HASTINGS:   Presumably, your Honour, yes.  But may I just say, maybe disbelieved, your Honour, but not to the point of it being ever suggested that they were lying in a way which might have added something to the prosecution case on the part of the applicant at least as a conscience of guilt.

CRENNAN J:   Not accepted might be a better way of putting it.

MR HASTINGS:   Yes.  So the factual result, in our submission, was that the only evidence which was capable of incriminating the accused was the DNA evidence.  There was nothing in the evidence of the complainant itself which incriminated him, and to the extent that she did provide detail, it did not fit the applicant.  In the end the only evidence, we submit, that was capable of incriminating him was the statistical estimates of the frequency with which the DNA profiles identified occur in the general population, bearing in mind, in particular, that the evidence was that in Canberra the population base used for the statistical analysis and prediction is some 620 people, so that in itself, in our submission, carries with it an inherent question mark.

FRENCH CJ:   The way it works is that I think they took 10 points on the relevant DNA strands and the statistical tables available from the database are said to suggest that there is a certain probability, if you like, that somebody other than the person from whom a matching sample is taken would have the same 10 points on their strand.

MR HASTINGS:   Yes, the same matching 10 results, yes.  Sometimes it is not 10.

FRENCH CJ:   Yes, I appreciate that.

MR HASTINGS:   If it is less it affects the odds and it brings them down or up.

FRENCH CJ:   That brings them down to merely strong, as distinct from extremely strong.

MR HASTINGS:   That is right, yes and sometimes, of course, as there was in one of the bra sample tests, a mixed result so there is an indication that there had been more than one contributor to the matter, which has been the subject of the analysis. 

Your Honour, our application in a sense is relatively simple.  We say that from a very early stage when DNA evidence of this type came before the courts it was accepted that it was not capable of proof beyond reasonable doubt.  We have referred in our submissions to a passage from Pantoja where the Chief Justice at Common Law Hunt in the Court of Criminal Appeal in New South Wales made a quite emphatic statement.  We perhaps have not emphasised in our submissions enough the emphasis which his Honour gave to his statement.

FRENCH CJ:   But you say goes no higher than establishing that the person whose sample is matched could be the person who was involved with the victim.

CRENNAN J:   In other words, raises a possibility?

MR HASTINGS:   Yes.

FRENCH CJ:   Is that a factual conclusion?  It is not a proposition of law, is it? 

MR HASTINGS:   Well, we would say so, your Honour, in the sense that – it became a proposition of law, we submit, because of the way in which Justice Hunt and Justice Abadee in an earlier decision of Green enunciated the way in which it was to be used in evidence, became, in our submission, an established principle of law given that there was a question mark about the admissibility of DNA evidence in the first place and then an ongoing concern about its probative value.  In our submission, the statements of Justice Hunt and Justice Abadee and other courts which have applied the same principle have entrenched it as a principle of law.

FRENCH CJ:   I am not sure that one can take factual inferences from statistical evidence and fossilise them into principles of law.  In any event, I am not sure that that affects your argument one way or the other really.

MR HASTINGS:   In any event, your Honour, they are judicial statements based on a careful analysis of the processes used in the extraction of the evidence and the basis upon which the statistical estimates are made and ‑ ‑ ‑

FRENCH CJ:   See on that proposition, I suppose, the jury should be told, if it is a proposition of law, that the DNA evidence can go no higher than to establish that the accused could have been the person whose samples were found on the victim’s clothing.

MR HASTINGS:   Yes, but we would say and the direction should go further to say, but that you should not convict unless you are satisfied that there is some other evidence, separate from the DNA, which would persuade you that it was the applicant beyond reasonable doubt who is the person identified.  It was that absence in this case, your Honour, which we submit was lacking.

Your Honours, the court below was taken to this issue quite squarely, and at paragraph 39 of the judgment, which is at page 54 of the appeal book, the court dealt with the broad proposition.  We embrace some of what was said, particularly your Honours will see at around line 44 where their Honours said:

Secondly, it is well established that the phrase “beyond reasonable doubt” does not reflect some calculation of percentage probability.

We embrace that in the sense that – it seems to me to be a broad question here as to the point at which DNA statistically can amount to proof beyond reasonable doubt and this case provides a good example because one of the samples resulted in a strong probability whereas the others were extremely strong.  It would be interesting to contemplate whether the mere finding of “strong” proved beyond reasonable doubt that it was the applicant, or whether it required an extremely strong statistical result before one crossed that threshold.  In our submission, the mere consideration of that issue exposes the frailty of the evidence and indicates quite clearly why the authorities to date have emphasised the need for some independent evidence which would provide additional strength as to the statistical estimates.

We also say that their Honours at the top of page 55 reflected a misunderstanding of the nature of the material by equating fingerprint evidence.  It is true of course that their Honours said:

Thirdly, fingerprint evidence, which in some respects is analogous to DNA evidence, is routinely admitted and may be decisive.

We refer to authority going some way back in Milat, where it was quite clearly emphasised that fingerprint evidence is not the same as DNA evidence because it has the capacity to provide a unique identifier of a suspect, whereas DNA does not.  We point to that as a further indication of their Honours’ failure to grasp the fundamental issues which were being advanced.

Similarly in the next paragraph, paragraph 40 on page 55 of the appeal book, their Honours acknowledge that they were taken to Pantoja, the case to which I have referred to earlier in which Chief Justice Hunt and Justice Abadee made quite emphatic statements about the inadequacies of DNA evidence, but rather than embracing the principle, in our submission, avoided it by the statement at line 21:

but that does not mean that DNA evidence cannot be highly probative evidence in an appropriate case.

Their Honours then referred to Gibson, which I think was a Tasmanian case, in which they say:

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.

That factor, in our submission, was quite compelling in the sense that there was identification evidence in Gibson, so that it did not present a case such as this in which the only evidence was the DNA evidence, and the principle did not fall for consideration nor enunciation. 

So, in our submission, it can be demonstrated that their Honours fell into error.  We point out of course that this was a circumstantial case and the proof of the DNA results as linking the applicant as the assailant was an indispensable fact and was another reason why that fact had to be proved beyond reasonable doubt in a way that perhaps just reflects or captures the same problem, but nevertheless, in a circumstantial case such as this where there was no other evidence, it seems to emphasise yet again how important the DNA evidence is and how significant the frailties of it become in those circumstances.

FRENCH CJ:   What is the consequence of your submissions for the use of this kind of evidence?  Do you say it should not be admitted because it goes not further than to say that somebody could have been there, or one could say about somebody who lived in the ACT, I suppose, or does it require a special direction from the judge?  What is the consequence?

MR HASTINGS:   Your Honour, admissibility is probably beyond argument.  It would be, in our submission, a position where at the end of the Crown case one could make an application for a verdict by direction if there

was no other evidence than the DNA evidence on the principles that I have been referring to, or alternatively seek a direction from the judge that the jury be told that they should not convict if they are satisfied the only evidence is the DNA evidence and that there is no other evidence which incriminates the accused. 

But I think the short answer is, your Honour, we would not go so far as to say the evidence is not admissible, but its probative value would stand to be assessed at the end of the Crown case when it could be determined whether there was any other evidence which would support it and give it the weight and colour that is necessary to be capable of proving guilt beyond reasonable doubt.  Your Honour, the only other matter I might mention is that in the submissions of the respondent reference is made to the decision in Murdoch v The Queen.

FRENCH CJ:   There was some direct identification evidence in that case, was there not?

MR HASTINGS:   Quite so, your Honour, yes, and again, your Honour, we would accept in a case such as that where there was evidence of identification, even though it was under challenge, and there was other evidence in the form of lies, I think, by Murdoch, in a case like that the principle which we advance would not apply and we do not seek to put our proposition any higher than it is a principle which applies in cases in which there is no such separate and independent identification evidence, but only DNA evidence.

In those circumstances, your Honour, we submit that it is an appropriate matter for a grant of leave.  DNA has obviously become a popular sense of forensic evidence and has enormous potential in some cases obviously to establish the guilt of the accused but, in our submission, the need for care needs to be reinforced and there is a need, in our submission, to ensure that the principles which were originally laid down in Pantoja and the early DNA cases are still current and enforced by those courts that are called upon to implement them.

FRENCH CJ:   Thank you, Mr Hastings.  Yes, Mr Jackson.

MR JACKSON:   Thank you, your Honours.  May I just go first to something about the actual evidence given by the applicant.  It did, with respect, go a little further than was put by your Honour Justice Crennan in this sense - your Honours should have a bundle which says “Respondent’s Material in Response”.  You will see it contains some passages from the transcript of the evidence.

I just want to go very briefly to two parts of the applicant’s evidence where he was asked questions about his participation.  The first is the page numbered 198 at the bottom of the page and that is in his evidence‑in‑chief.  You will see between lines 24 and 39 he denied that he was the person involved.  His cross‑examination went after that and you will see the conclusion of it at the page numbered 246.

Now, in the passage from the top of the page to about line 27 it is really being put to him absolutely clearly that he was the person who did it and, in effect, that he was not telling the truth in denying that.  The jury must have disbelieved him on that, with respect.  That takes one to the observations made by three members of the Court in R v Hillier (2007) 228 CLR 618, which your Honours should have. I wanted to refer your Honours to page 639 and the joint reasons for judgment of your Honours Justices Gummow, Hayne and Crennan. At paragraphs 49 and 50 on page 639 it is said on the third line of the page:

But the question . . . was whether, on the whole of the evidence, it was open to the jury –

et cetera.  Your Honours will then see paragraph 50.  There is the reference to the fact that Hillier had given evidence at the trial.  A couple of lines further down:

One question which the jury was bound to consider was what they made of Mr Hillier’s evidence.  Did they believe that Mr Hillier may have been telling the truth when he denied responsibility for Ms Hardwick’s death?  Or were they, as the verdict revealed, positively persuaded on a consideration of all of the evidence (including his) that he was not?

The point I am seeking to make about it is that it is not quite right, with respect, to describe this case as a case where the only relevant evidence was the evidence which was the DNA.

CRENNAN J:   I think what Mr Hastings said is what incriminated the accused was the DNA evidence, but the answer to that I expect is that that was not the totality of the evidence.

MR JACKSON:   That is so, your Honour.

FRENCH CJ:   We do not know, though.  I suppose on one scenario the jury may have found support for an inference of guilt in their disbelief of the evidence given by the accused.  On another view it may have been a combination of that and the DNA.  On another view it might have been the DNA evidence entirely which simply caused them to reject the evidence of the accused.  We do not know how they ‑ ‑ ‑

MR JACKSON:   No, I am sorry, your Honour.  What I was going to say in response to what your Honour has just put to me was this, that whichever be the process of reasoning, what the jury is doing is considering the whole of the evidence.  That is ultimately the type of case that this is because it is not a case where there was any complaint about the directions given to the jury.  There was no challenge to the DNA results as such.  It is not a case where the election was made not to adduce evidence.  So the case the court had to consider, speaking of both levels below, was a case where there was evidence given by the applicant denying it which the jury could not have believed.

Your Honour, could I just say that even if one looks at the DNA evidence and without attempting to describe it in any mathematical way, or as being perhaps very different from finding pieces of clothing that match that of an accused, on the person it was, as circumstantial evidence goes, in our submission, quite strong.

Could I just say these things about it, your Honours.  There were of course, three relevant parts.  There was staining found on the front upper right thigh of the victim’s trousers.  It was semen.  It had come from one person.  There was no other person involved, and the DNA profile obtained from it was the same as that which had been obtained from the applicant.  The second thing was that there was DNA found on the inner surface of the cups of the victim’s bra, and one of the profiles again was the same as that of the sample taken from the applicant and the same thing happened in relation to the third on the outside of the bra.

Your Honours, if one looks then at those locations, each of those three locations where DNA, having a profile similar to that of the applicant, was found, it was in an area of the victim’s clothing which was entirely consistent with the victim’s evidence.  Could I take your Honours – it is a short version of where your Honours will find that.  We have endeavoured to summarise it in the respondent’s submissions, page 75 AB, paragraph 19.

FRENCH CJ:   All of that goes to the proposition that the respondent was attacked by somebody in the way that she says she was attacked.  But the real issue in this case was identity, was it not?

MR JACKSON:   Of course, your Honour, yes.  But what one had in relation to that was that there were three pieces of DNA evidence which, taken together, were (a) consistent with her story in terms of location, but (b) each of them was DNA which had a profile which matched that of the applicant.  Of course one cannot say it did not follow that that was necessarily the applicant, but it was evidence the jury was entitled to consider and, in our submission, relatively strong evidence.

Your Honours, if one takes into account the jury’s obviously adverse view of his own evidence, which had to be taken into account and, your Honours, I referred to Hillier before, but in the preceding paragraph, paragraph 48, you will see the requirement that of course one has to look at all the evidence before the jury.  We would say, your Honours, that the Court of Appeal was entirely correct in saying, as it did – if I can just give your Honours two references, page 56 in the application book, paragraph 46 – that:

The jury was entitled to reject his evidence that he did not commit the offence -

and, your Honours, what we would also say is that the Court of Appeal was correct to say, as it said in paragraph 48, that in the particular case:

The DNA evidence called by the prosecution was very powerful ‑ ‑ ‑

FRENCH CJ:   It was called that by the witnesses who gave it.

MR JACKSON:   I am sorry.

FRENCH CJ:   That just raises an issue – I know it is incidental in a way to what has been put by Mr Hastings – but the labelling of the various statistical levels as either extremely strong, or strong – I forget whether there was a third level – that was simply put as a tag, was it not?  It was not otherwise given any content or stated to reflect the opinion of the expert witness.

MR JACKSON:   I think it was, your Honour. 

CRENNAN J:   The experts explained the tags, I think.

MR JACKSON:   Yes, they explained ‑ ‑ ‑

FRENCH CJ:   Yes, they explained the tag by reference to the statistical levels.

MR JACKSON:   Your Honour, I think that is right.  I know it was explained.  But, your Honour, could I just say that one of the reasons for using terms of that kind as appears from the material in the case, was to avoid endeavouring to give figures which are mathematical, in a sense, and present an air of mathematical certainty which otherwise might be more confusing to a jury.  Now, your Honours, in circumstances where that

material is not objected to and where no objection is taken to the summing‑up on that ground, where the point ‑ ‑ ‑

CRENNAN J:   There was no request for a Green Case style direction?

MR JACKSON:   No.  Your Honours, so our submission is that the case is one where it is right to say, as we have said at page 72 in paragraphs 1, 2 and 3 of our summary of argument, that this really is a form of circumstantial evidence.  There are no special issues in the case.  It might be different, of course, if there had not been evidence given by the applicant and, your Honours, we would say that it is not a case involving an issue of general significance.  A case may present it where it does but, with respect, this is not it.

FRENCH CJ:   Thank you, Mr Jackson.  Yes, Mr Hastings.

MR HASTINGS:   Your Honours, in my submission the fact that the jury may not have accepted the evidence of the applicant and his wife cannot be used in order to fill gaps in the prosecution case.  It seems to me it is very similar to the law which has been clearly laid down in Edwards and other cases in relation to the use of lies, which can reflect of consciousness of guilt, but this Court has made it very clear are not to be used, effectively, as the sword in the prosecution’s hands to establish another limb of a case of guilt against the accused and this is a very analogous position, in my submission.  One cannot infer into the result a finding by the jury that they did not accept the evidence of the accused.  They might have been quite equivocal about it, but still been overwhelmed by the evidence of the DNA and without having formed a concluded view about the evidence of the applicant and his wife. 

So that, in my submission, one cannot draw that inference and one should not, in any event, use that fact to fill what otherwise would be a deficiency in the prosecution case.  Your Honours accepted, as your Honour Justice Crennan has pointed out, again that possibilities could have existed at trial to deal with this differently.  Nevertheless, that was not done.  It was accepted as a genuine issue in the Court of Appeal and, in our submission, in a way which reflects error.  It would be undesirable, in our submission, for that error to remain on the record and it therefore provides an appropriate vehicle for this Court to make an authoritive restatement of the principles in Pantoja, so that the error in this matter would not be perpetuated in like matters in the future.  May it please, your Honours.

FRENCH CJ:   Thank you, Mr Hastings.  We are of the view that the application for special leave should be referred to the Full Court.  This would take no more than a day?

MR HASTINGS:   Yes, I think so.

MR JACKSON:   Yes.

FRENCH CJ:   Yes, all right.  The application will be referred to the Full Court.

AT 10.05 AM THE MATTER WAS CONCLUDED