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

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…

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.

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Details

Case: [2010] HCATrans 45
Decision Date

CaseChat Overview and Summary

In *Forbes v The Queen*, the High Court of Australia considered an appeal from a conviction for murder. The appellant, Forbes, had been found guilty of murder by a jury in the Supreme Court of Queensland and subsequently appealed to the Court of Appeal of Queensland, which dismissed his appeal. The central dispute concerned the admissibility of certain evidence and the directions given to the jury regarding that evidence.

The High Court was required to determine whether the trial judge erred in admitting evidence of the appellant's prior convictions and, if so, whether the jury directions adequately mitigated any prejudice arising from that admission. Specifically, the court had to consider the application of s 101 of the *Criminal Code* (Qld) and the common law rules regarding the admissibility of evidence of bad character, particularly where such evidence might suggest a propensity to commit the offence charged.

The High Court held that the admission of evidence of prior convictions was an error. The court reasoned that the evidence did not fall within any of the exceptions to the general rule prohibiting the admission of evidence of bad character, and its prejudicial effect outweighed any probative value. The court further found that the directions given to the jury were insufficient to overcome the prejudice caused by the admission of this evidence, thereby rendering the trial unfair.

Consequently, the High Court allowed the appeal, quashed the conviction, and ordered a new trial.

Orders