Application by Mark Forbes

HIS HONOUR: Mark Forbes has filed an appeal against his conviction for child sexual assault offences committed in 2013. The appeal is listed for hearing on 31 May 2024. Mr Forbes was tried before his Honour Marien DCJ and a jury and sentenced on 21 October 2014 to a non-parole period of imprisonment of 5 years and 6 months expiring on 27 October 2019 with a balance of term of 6 years expiring on 27 April 2025. Mr Forbes is currently on parole. The Crown originally appealed against this sentence but that appeal was later abandoned. Mr Forbes’ own conviction appeal is out of time.

Mr Forbes seeks a review under rule 6.1 of the Supreme Court (Criminal Appeal) Rules 2021 of a decision of the Registrar of the Court of Criminal Appeal made on 29 February 2024 refusing Mr Forbes’ application for orders to produce and attend. The power to review such decisions can be exercised by a “Judge of the Supreme Court designated by the Chief Justice” in the provisions: Criminal Appeal Act 1912, s 22(1). The Chief Justice has designated all judges of the Common Law Division as having that power and the other powers listed in s 22.

Mr Forbes now seeks an order that Mr O’Connor, the principal of the school where one of the victims was a pupil, attend at his appeal and provide an affidavit. He also seeks an order for production of police log books. His submissions in each case are, in summary, to the following effect.

The Registrar declined Mr Forbes’ requests upon the basis that he was seeking to explore a theory or hypothesis that some other offender may have been responsible for the assaults and that his application was in fact an exercise in speculation. Mr Forbes complains that the investigating police failed to follow the available lines of inquiry concerning male DNA found on one of the victims’ clothes and that their failure amounted to a perversion of the course of justice. Mr Forbes also wishes to contend that his defence counsel was incompetent in not pressing the police to investigate these matters thoroughly. The Registrar considered that Mr Forbes was in effect undertaking a fishing expedition without a rational or sound evidentiary basis for doing so. Mr Forbes wishes to maintain that he is the victim of a miscarriage of justice and that he did not receive a fair trial.

In my opinion, Mr Forbes’ complaints rise no higher than speculation or surmise. Mr Forbes’ case at trial was that he did not commit the alleged offences. He gave evidence. The trial judge summed up to the jury in a way that emphasised possible frailties in the DNA evidence against him and arguably very sympathetically to Mr Forbes.

As far as I am able to determine, the burden of Mr Forbes’ case at trial was that the DNA that was found could have been the DNA of another male or males in his paternal line but that it was not investigated. The jury were therefore confronted with Mr Forbes’ denials and the complainants’ evidence, in the shadow of the possibility that the DNA of an unidentified male or males was present and that it was not his. It would have been no part of his forensic responsibility for Mr Forbes to explain the presence on the victim or her clothes of a third party’s DNA. I am presently unaware of whether the Crown’s so called failure to do so was something to which the jury’s attention was drawn at the trial.

The victims gave evidence. MO described being licked by Mr Forbes on her nipples and on her vagina. The DNA evidence was directed to the identity of the contributor to the DNA on her nipples. There was no DNA recovered from her vagina.

There is no utility in the application for production of police records or for Mr O’Connor to provide an affidavit. It is not known what the records are supposed to contain. It appears that Mr Forbes wishes to contend that there are no records of investigations of the type he says should have been carried out and that he presumably wishes to establish a negative proposition. However, he does not identify how the police are expected to accommodate a request for documents that show nothing or to provide a response that says there are no documents to be produced.

With respect to the DNA, the failure to exclude the proposition that someone else in his family was responsible for the DNA recovered from MO’s nipples would not be relevant in his appeal having regard to the Crown case at trial that Mr Forbes was the person who licked MO’s nipples and vagina. The jury would have been entitled to find him guilty on direct evidence even in the absence of his DNA on any part of MO’s body or clothing. The suggestion that there was or may have been a miscarriage of justice because the Crown did not exclude the possibility that some other person may have deposited the DNA would not have been critical to a finding of guilt in a case based on direct evidence in the form of the victim’s testimony about what she said Mr Forbes did to her. Indeed, the scientific evidence concerning the DNA specifically admitted of the possibility that someone other than Mr Forbes could have deposited the DNA recovered from the victim.

For example, contrary to Mr Forbes' submission that the recovered DNA "is not the convicted persons, namely, mine, but other person(s)", a Certificate of Analysis dated 7 March 2014, prepared by NSW Health Pathology and provided by Mr Forbes, indicates that swabs taken from MO's nipples produced the following identical results:

In the light of this evidence, the jury would have been confronted with the possibility that the DNA recovered from MO’s nipples could have been that of some unidentified male in the general population. That possibility was alive at the trial without resort to submissions that the police were somehow at fault. The associated proposition that the police wrongfully or improperly failed to investigate this possibility, putting aside the unanswerable question of how they might conceivably have been expected, in practical terms, to do so, cannot therefore have any significance in Mr Forbes’ appeal.

Accordingly, to the extent that Mr Forbes’ application seeks a review of decisions made by the Registrar under the Rules, I confirm the Registrar’s decision.