R v Forrest (No 2)

Parties: Rex (Crown)
Eric Forrest (Accused)

Representation: Counsel:
E Blizard (Crown)
J S Hopper (Accused)
Solicitors:
Solicitor for Public Prosecutions (NSW) (Crown)
George Sten & Co Criminal Lawyers (Accused)

File Number(s): 2023/00350546

Publication restriction: Nil

JUDGMENT

1. Eric Forrest (“the accused”) has pleaded not guilty to one count of murder. It is alleged that on 25 September 2023 he shot and killed David Collisson (“the deceased”). The Crown case relies on eyewitness evidence and circumstantial evidence to prove the guilt of the accused beyond reasonable doubt.

2. The Crown seeks to lead evidence that the accused fled from police at McDonald’s in Mudgee at 6:50am on 26 September 2023 (“the McDonald’s incident”). The evidence is sought to be adduced as consciousness of guilt evidence.

3. The call charge records for the deceased’s phone reveal that the last connected call to that phone was at 9:12pm on 25 September 2023. It is likely that the deceased was shot and killed some time after that on the evening of 25 September 2023.

4. At the time of the McDonald’s incident the accused was driving the same car that he had been driving immediately before and after the alleged murder (a white Corolla).

5. The police officers at McDonald’s were Sergeant Sarah Cunningham, Senior Constable Allan Tull and Senior Constable Vanessa Webster. The officers were standing on the western footpath of Church Street, Mudgee when they noticed a car travelling at high speed for the posted 40 km/h zone. It was the way in which the car was being driven that caught their attention.

6. The officers drove along Church Street and observed the car in the drive-through area. SC Tull called Highway Patrol for assistance. SC Tull waited for the white Corolla to leave the drive-through. When the car exited, SC Tull activated his warning lights and followed the accused. A relatively short police pursuit ensued. The accused abandoned the car in Gawthorne Place, Mudgee. The car was found, towed and later forensically examined. Identification in the name of the accused was found in the car. A blood spot was found in the car which had a DNA profile consistent with that of the deceased.

7. The Crown case is that after the accused abandoned the car, he remained in the Mudgee area until 9 October 2023.

8. Objection is taken to the evidence of the police pursuit pursuant to s 137 of the Evidence Act 1995 (NSW). Section 137 provides:

137 Exclusion of prejudicial evidence in criminal proceedings

In a criminal proceeding, the court must refuse to admit evidence adduced by the prosecutor if its probative value is outweighed by the danger of unfair prejudice to the defendant.

Submissions

9. The Crown submits that the probative value of the evidence is high. In support of that contention the Crown relies upon the following:

(i) It was flight from police officers with whom he had no history. (ii) It occurred less than 10 hours after the alleged murder. (iii) It occurred within, at most, a couple of hours of moving the body of the deceased at a time when the remains were yet to be burnt. (iv) It occurred less than 10 km from the site of the alleged murder. (v) The accused was driving the same car that he had been driving prior to and after the alleged murder.

10. The Crown further submits that the prejudice asserted by the accused can be cured by judicial direction to the jury.

11. The accused submits that the probative value of the evidence is outweighed by the danger of unfair prejudice, which cannot be cured by judicial direction.

The accused’s evidence on the voir dire

12. The accused gave evidence on the voir dire on 1 October 2025. That evidence is contained in the transcript of the proceedings and is only referred to briefly in this judgment.

13. The accused had resided in Mudgee since 2014, at least during periods when he was not in custody. He moved to Dubbo in 2020 for a short period, returning to Mudgee.

14. The accused accepted that he was driving the white Corolla on the morning of 26 September 2023. He agreed that he saw the police lights activated and that he drove off at speed in an effort to evade police. He explained that he engaged in that behaviour for several reasons including that he was in possession of one and a half ounces of “ice”. Initially he said that the prohibited drug was “on the passenger seat or maybe the console”, later giving evidence that it was in the console of the car.

15. The accused had been involved in a prior, and unrelated, police pursuit at Tweed Heads on 18 September 2023 (“the Tweed Heads police pursuit”). Between 18 September and 26 September 2023, the accused was at large in relation to that allegation. He had not been arrested or charged in connection to the Tweed Heads police pursuit at the time of the McDonald’s incident.

16. The accused gave evidence that he had been harassed by the police for most of his life in Mudgee, Wellington and Dubbo. He said that he was “always up to no good. I’m a junkie, I’m a user. I sell drugs. So yeah, I have always sold drugs all me life”.

17. Effectively, the accused denied that he sought to escape the police because he had murdered the deceased.

Consideration

18. In giving evidence and when cross-examined, it became apparent that to explain why he fled from the police, the accused revealed a considerable history of criminality which involved drug use and drug supply, multiple previous police pursuits, several periods of incarceration, multiple interactions with the police, and alleged harassment and physical assaults by the police.

19. In R v Cook [2004] NSWCCA 52 (“Cook”), Simpson J, with whom Ipp JA and Adams J agreed, said at [43]:

“… I am satisfied that it is not the role of a trial judge in NSW, under the Evidence Act, to make a finding of fact about the actual reasons for flight where such evidence is given on behalf of the Crown. That remains the province of the jury. The role of the judge in NSW, at least post-1995, is merely to determine the relative probative value against the danger of unfair prejudice that might result. In saying this, I do not mean to lay down a blanket rule that, in considering evidence on a voir dire in which the issue is the admissibility of evidence having regard to s137, there is never any room for findings concerning credibility. There will be occasions when an assessment of the credibility of the evidence will be inextricably entwined with the balancing process. That means that particular caution must be exercised to ensure that the balancing exercise is not confused with the assessment of credibility, a task committed to the jury. There may, for example, be occasions on which the accused’s response is so preposterous as to give rise to the conclusion that it could be accepted by no reasonable jury. The credibility exercise, in those circumstances, is to determine whether the evidence given by (or on behalf of) the accused is capable of belief by the jury. If it is, then its prejudicial effect must be considered. If it is not, then the balancing exercise may well result in an answer favourable to the Crown. That is essentially because any prejudice arising to an accused from putting a preposterous explanation to the jury would not be unfair prejudice.”

20. This is not a case where the accused’s response is so preposterous as to give rise to the conclusion that it could be accepted by no reasonable jury. Even if the jury were to reject the accused’s account of being harassed and assaulted by police, it can be readily accepted that the accused has a history of engaging in considerable criminal activity and an antisocial lifestyle.

21. Although the criminality in which the accused has engaged does not appear to have involved violent conduct or conduct that can be described as bearing “a disturbingly close relationship to the offence with which he was charged” (Cook at [48]), the degree of the previous criminality, which is inextricably linked to his explanation for fleeing the police, is very high.

22. There is no rule of law which says that evidence of flight should be excluded because the accused’s explanation for the flight might reveal other evidence of criminal activity which may be prejudicial to the accused. However, there will be cases where the preferred explanation may be so prejudicial that the evidence of flight should be excluded: Quinlan v Regina (2006) 164 A Crim R 106; [2006] NSWCCA 284 at [18], [21].

23. In considering the prejudicial effect of the evidence that the accused would give to explain the flight, I proceed on the basis that it is not enough that the evidence would disclose previous criminal offences. However, in this case the evidence that the accused would adduce in order to meet the flight evidence would involve the following:

(i) Firstly, on the morning of 26 September 2023, the accused was in possession of a significant quantity of methylamphetamine. Notwithstanding the fact that there will be evidence in the trial of drug use on the part of witnesses, the deceased, and the accused, the possession of one and a half ounces of methylamphetamine carries significantly more prejudice than evidence of personal use. (ii) Secondly, the evidence would reveal that just some days prior, the accused was involved in a separate police pursuit for which he had not yet been arrested or charged. (iii) Thirdly, the evidence would reveal that the accused had been involved in other unrelated police pursuit incidents and that he had served periods of imprisonment. (iv) Fourthly, the evidence would reveal that the accused’s history (which encompasses prior offending and drug use) is replete with multiple adverse interactions with the police.

24. I accept that the evidence of the police pursuit has probative value particularly given the timing and location of the incident. However, having carefully considered the accused’s evidence, I am of the view that the nature of the evidence he would have to adduce in order to meet the flight evidence, would give rise to substantial unfair prejudice. It exposes the accused as having a lengthy history of criminal activity, incarceration and adverse interactions with the police, raising his bad character. I am not of the view that the substantial unfair prejudice can be cured by judicial direction.

25. It cannot be overlooked that the decision to admit the evidence of flight may well be a factor in the consideration of whether the accused gives evidence or not.

26. Accordingly, I find that the probative value of the evidence is outweighed by the danger of unfair prejudice. The evidence of the police pursuit on 26 September 2023 is not admissible.

27. For completeness, I note that the evidence that the accused was driving the white Corolla on the morning of 26 September 2023 is admissible, as is the evidence that the vehicle was seized by the police and forensically examined. The results of that forensic examination will also be before the jury.

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