Citation: Application by Mark Forbes [2024] NSWCCA 63
Court: NSW Court of Criminal Appeal
Date: 3 May 2024
Judge(s): Harrison CJ at CL
Background
The applicant was convicted of child sexual assault offences committed in 2013, following a trial before a District Court judge and jury. He was sentenced in October 2014 to a non-parole period of five years and six months, with a balance of term expiring in April 2025. At the time of this application, he was on parole, and his conviction appeal (filed out of time) was listed for hearing in May 2024.
The applicant sought a review of a decision made by the Registrar of the Court of Criminal Appeal on 29 February 2024. The Registrar had refused his application for orders requiring a school principal to attend court and provide an affidavit, and for production of police records he described as "log books."
The applicant's core argument was that investigating police had failed to pursue lines of inquiry concerning male DNA found on a victim's clothing and body, and that this failure amounted to a perversion of the course of justice. He also raised a concern that his trial counsel had been incompetent in not pressing police to investigate these matters more thoroughly.
Legal Issues
- Whether the Registrar's refusal of orders to produce police records and compel attendance of a witness should be set aside on review under rule 6.1 of the Supreme Court (Criminal Appeal) Rules 2021.
- Whether the applicant's proposed inquiries into the DNA evidence had a rational evidentiary basis sufficient to warrant production and attendance orders.
- Whether the Crown's failure to exclude the possibility that another person deposited DNA recovered from the victim was capable of supporting a miscarriage of justice argument on appeal.
Decision
Harrison CJ at CL confirmed the Registrar's decision in full. The Chief Justice found that the applicant's complaints amounted to no more than speculation or surmise, and that the Registrar had correctly characterised the applications as a fishing expedition without a sound evidentiary basis.
On the DNA issue, the Chief Justice noted that the Certificate of Analysis provided by the applicant himself showed that the male DNA recovered matched the applicant's Y-filer profile but was also consistent with all males on his paternal line and approximately 1 in 750 unrelated males in the general population. The possibility that the DNA came from an unidentified third party was therefore already live at the trial, without any need for further police investigation.
The Chief Justice also observed that the conviction rested substantially on direct evidence, namely the victim's testimony about what the applicant did to her. The jury was entitled to convict on that evidence even in the complete absence of DNA. The proposition that the Crown's failure to exclude third-party DNA contribution constituted a miscarriage of justice was therefore not capable of being critical to the appeal.
Regarding the request concerning the school principal, the Chief Justice found there was no utility in the application. The applicant did not identify what the affidavit or the police records were expected to contain, and he appeared to want to establish a negative proposition by demonstrating the absence of records or investigations, which the court found was not a workable basis for a production order.
Orders Made
No orders were made in this decision. The Registrar's original decision refusing the production and attendance orders was confirmed.
Key Takeaways
- The Court of Criminal Appeal confirmed that a review of a Registrar's procedural decision under rule 6.1 of the Supreme Court (Criminal Appeal) Rules 2021 may be exercised by a judge of the Common Law Division designated by the Chief Justice under s 22(1) of the Criminal Appeal Act 1912.
- A production or attendance order will not be granted where the applicant's underlying argument amounts to speculation or a fishing expedition without a rational evidentiary foundation.
- Where a conviction rests on direct evidence from a complainant, the presence of unidentified third-party DNA does not automatically generate a viable miscarriage of justice argument on appeal, particularly where that possibility was already before the jury at trial.
- Seeking to establish the absence of police records or investigations is not, without more, a sufficient basis for a court order compelling production of those records.
- In dismissing the review application, the court underscored that a jury is entitled to convict on direct evidence alone, even where DNA evidence does not match the accused or does not exclude other contributors.
Legislation and Cases Referenced
Legislation:
- Criminal Appeal Act 1912 (NSW), s 22(1)
- Supreme Court (Criminal Appeal) Rules 2021 (NSW), rule 6.1
Cases cited: No cases were cited in this judgment.