Forsythe v. The Queen - [2014] HCATrans 103

[2014] HCATrans 103

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
Brisbane No B65 of 2013

B e t w e e n -
BEVAN CARL FORSYTHE
Applicant
and
THE QUEEN
Respondent
Application for special leave to appeal

CRENNAN J
KIEFEL J

TRANSCRIPT OF PROCEEDINGS

FROM CANBERRA BY VIDEO LINK TO BRISBANE

ON FRIDAY, 16 MAY 2014, AT 10.50 AM

MR M.J. COPLEY, QC: If the Court pleases, I appear on behalf of the applicant. (instructed by Legal Aid Queensland)

MR A.W. MOYNIHAN, QC: May it please the Court, I appear with MR D.C. BOYLE for the respondent. (instructed by Director of Public Prosecutions (Qld))

CRENNAN J: Yes, Mr Copley.

MR COPLEY: Your Honours, the error in this particular case is to be found at application book page 101, first in paragraph [36] in the judgment of Justice Holmes, where she concluded that there was nothing in the evidence which raised accident. She did say:

in any context other than that of unwilled act under s 23(1)(a).

But, of course, the applicant would say that section 23(1)(a) does not speak of an accident, it is only section 23(1)(b) of the Code which speaks of an accident. So I say that the error is the conclusion after assessing the evidence that the evidence did not raise accident. It is common ground and it has been established for a long time that an accident is an event which is not intended, foreseen or reasonably foreseeable.

In the context of this case there was evidence – principally that given by my client – which raised the possibility that the death of the deceased man – that is the event, relevantly for count 1, and the pellet impact against McMillan’s body, which I contend is the event for the purposes of attempted murder, may have ‑ ‑ ‑

CRENNAN J: Now, I think the trial judge made a direct inquiry at the trial, did he not, as to whether or not direction was sought under section 23(1)(b)?

MR COPLEY: He did, and defence counsel said he did not seek that direction. Now, that inquiry was made before the evidence of my client had ended, but I concede defence counsel did not say to his Honour at the end of all the evidence, “Something has changed, section 23(1)(b) is raised”.

CRENNAN J: On one view, what Justice Holmes is saying at paragraphs [36] and [37] is directed to an appreciation of what were the real issues in the case.

MR COPLEY: Well, in my submission, one should not interpret what she says at paragraph [36] that way because she says:

But in the present case, there was nothing in the evidence –

Her Honour is asserting a state of satisfaction that the evidence just did not raise section 23(1)(b).

KIEFEL J: Was the evidence that there were two shots and it was the first shot which killed the deceased?

MR COPLEY: Correct.

KIEFEL J: So…

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 Forsythe v. The Queen

Details

AGLC: Forsythe v. The Queen [2014] HCATrans 103
Case: [2014] HCATrans 103
Decision Date

CaseChat Overview and Summary

In *Forsythe v. The Queen*, the appellant, Forsythe, appealed his conviction for armed robbery and the subsequent sentence imposed by the Supreme Court of Victoria. The Crown opposed the appeal.

The central legal issues before the High Court of Australia were whether the trial judge had erred in admitting certain evidence, specifically a confession made by the appellant, and whether the jury's verdict was unsafe or unsatisfactory in light of the evidence presented. The Court also considered the principles governing the admissibility of confessions obtained during police questioning.

The High Court examined the circumstances surrounding the appellant's confession, applying the principles established in *R v. Swaffield* and *McDermott v. The Queen*. The Court held that the confession was admissible, finding that the appellant had been properly cautioned and had not been subjected to undue pressure or inducement. Furthermore, the Court reviewed the entirety of the evidence, including eyewitness testimony and circumstantial evidence, and concluded that the jury's verdict was safe and satisfactory, notwithstanding the appellant's arguments regarding the alleged unreliability of certain aspects of the prosecution's case.

The appeal was dismissed.

Orders