Citation: R v Forrest (No 2) [2025] NSWSC 1154
Court: Supreme Court of New South Wales
Date: 2 October 2025
Judge: Yehia J
Background
The accused faces one count of murder, alleged to have shot and killed the deceased on the evening of 25 September 2023 in the Mudgee area. The Crown's case rests on eyewitness and circumstantial evidence. The accused has pleaded not guilty.
The Crown sought to lead evidence that, at approximately 6:50 am on 26 September 2023, the accused fled from police during a vehicle pursuit near a McDonald's in Mudgee. The accused had been driving a white Corolla, the same vehicle connected to the alleged murder. The Crown characterised this flight as consciousness of guilt evidence.
On the voir dire (a hearing conducted before the trial judge, outside the jury, to determine admissibility), the accused gave evidence explaining his flight. He stated he fled because he was carrying approximately one and a half ounces of methamphetamine, because he had been involved in a separate unrelated police pursuit at Tweed Heads only days earlier for which he had not yet been arrested, and because he had a long history of adverse interactions with police in Mudgee and surrounding areas.
Legal Issues
- Whether the evidence of the police pursuit on 26 September 2023 was admissible as consciousness of guilt evidence
- Whether the probative value of that flight evidence was outweighed by the danger of unfair prejudice to the accused under s 137 of the Evidence Act 1995 (NSW)
- Whether any unfair prejudice arising from the flight evidence could be cured by a judicial direction to the jury
Decision
Yehia J acknowledged that the flight evidence carried genuine probative value. The pursuit occurred less than ten hours after the alleged murder, within approximately ten kilometres of the murder site, and while the accused was driving the same vehicle linked to the offence. The timing and proximity provided a rational basis for the Crown's submission that the evidence was relevant to guilt.
However, the court's analysis turned on what the accused would have to reveal in order to explain the flight. Drawing on the Court of Criminal Appeal's decision in R v Cook [2004] NSWCCA 52, Yehia J confirmed that the judge's role at this stage is not to determine why the accused actually fled, but to weigh probative value against the danger of unfair prejudice. The accused's explanation was not so implausible that no reasonable jury could accept it.
Yehia J identified four layers of prejudicial material that would inevitably emerge if the flight evidence were admitted: possession of a substantial commercial quantity of methamphetamine at the time of the pursuit; involvement in a separate police pursuit just days earlier for which he remained uncharged; a history of multiple other police pursuits and periods of imprisonment; and an extensive pattern of adverse interactions with police throughout his life. Taken together, this evidence would expose the accused's bad character in a manner going well beyond mere evidence of personal drug use.
The court concluded that this prejudice was substantial and could not be remedied by a judicial direction to the jury. Admitting the evidence would also bear on whether the accused chose to give evidence at trial. Accordingly, under s 137 of the Evidence Act, the probative value of the flight evidence was outweighed by the danger of unfair prejudice, and the evidence was excluded. The court noted, however, that evidence of the accused driving the white Corolla on the morning of 26 September 2023, the subsequent seizure of the vehicle, and the results of its forensic examination (including a blood spot consistent with the deceased's DNA profile) remained admissible.
Orders Made
- The evidence of the police pursuit on 26 September 2023 is not admissible.
- Evidence that the accused was driving the white Corolla on the morning of 26 September 2023 is admissible.
- Evidence of the vehicle's seizure and forensic examination results, including DNA findings, is admissible.
Key Takeaways
- Under s 137 of the Evidence Act 1995 (NSW), a trial judge must exclude prosecution evidence where its probative value is outweighed by the danger of unfair prejudice, even where that evidence has genuine relevance to guilt.
- Flight evidence can be excluded not simply because it discloses prior offending, but where the explanation an accused would need to advance in response generates substantial prejudice that a judicial direction cannot adequately remedy, as confirmed in Quinlan v Regina (2006) 164 A Crim R 106.
- Applying R v Cook [2004] NSWCCA 52, the Supreme Court reaffirmed that a trial judge conducting the s 137 balancing exercise does not determine the actual reason for flight; that question remains for the jury, provided the accused's explanation is capable of belief.
- The volume and variety of prior criminality that would have been revealed here, spanning drug supply, multiple police pursuits, incarceration, and a pattern of adverse police contact, collectively constituted unfair prejudice exceeding the probative weight of the flight evidence.
- Exclusion of flight evidence does not necessarily preclude other circumstantial evidence connected to the same events; here, the vehicle's presence, seizure, and forensic results remained before the jury.
Legislation and Cases Referenced
Legislation
- Evidence Act 1995 (NSW), s 137
Cases
- R v Cook [2004] NSWCCA 52
- Quinlan v Regina (2006) 164 A Crim R 106; [2006] NSWCCA 284