Penfold v R

1. [1]

   BATHURST CJ: I have read the judgment of R A Hulme J. The reasons given by him for joining in the orders made by the Court on 3 March 2016 reflect the reasons for which I agreed with the orders.

2. [2]

   HALL J: I agree with the reasons set out by Justice R A Hulme. Those reasons reflect the basis upon which I joined in the conclusion reached by the members of the Court, namely, that the three grounds of appeal had been established.

3. [3]

   R A HULME J: Gavin Penfold was found guilty by a jury on 9 April 2014 of an offence of aggravated break, enter and commit serious indictable offence, namely assault occasioning actual bodily harm in company, contrary to s 112(2) of the Crimes Act 1900 (NSW). He was sentenced to imprisonment for 3 years with a non-parole period of 1 year 8 months.

4. [4]

   Mr Penfold appealed against his conviction but not the sentence. There were three grounds of appeal. Grounds 1 and 2 related to an incident that occurred in the courtroom at the conclusion of the evidence of the principal prosecution witness in the case against the appellant. Success on either of these grounds would result in an order for a retrial. Ground 3 asserted that the verdict of the jury is unreasonable or not supported by the evidence. Success on this ground would result in a verdict of acquittal being entered.

5. [5]

   Mr Penfold has a right of appeal in relation to the first two grounds but leave was required in relation to the third: s 5(1)(a) and (b) of the Criminal Appeal Act 1912 (NSW).

6. [6]

   At the conclusion of the hearing on 3 March 2016 the members of the Court were of the unanimous view that each of the grounds was made out. Leave to appeal upon ground 3 was granted, the appeal on each ground was allowed, the conviction was quashed and a verdict of acquittal was entered. The following are the reasons I joined in the making of those orders.

The prosecution case

1. [7]

   The prosecution case was that in the afternoon of 12 October 2012, Ms Adelaide Porter, then 19 years old, and her friend Mark Mills, then 24 years old, were at Ms Porter’s flat in Nelson Bay on the mid-north coast. Mr Mills answered a knock at the door. A male voice said it was “Jessie” (the name of a friend of Mr Mills). As it turned out, there were two men at the door, one of whom was Scott McGuire, a man known to both Mr Mills and Ms Porter. The other man was not identified by either of them at the time but Ms Porter thought his face was familiar.

2. [8]

   The two men forced their way inside and Mr Mills fell to the floor. McGuire, who was armed with a machete, demanded, “Give me everything you’ve got. Give me all your stuff”. Mr Mills attempted to defend himself and Ms Porter with a kitchen knife and he stabbed McGuire. Mr Mills was then felled by the other intruder. There was more struggling and Mr Mills was assaulted by both men who then fled empty-handed.

3. [9]

   Ms Porter called police and nominated McGuire as one of the offenders. In circumstances outlined in detail below she later identified the appellant as the other offender.

4. [10]

   The appellant was tried jointly with McGuire whose case was that he had gone to the flat with a person named “Jason”, expecting to see his friend “Beau”. He had an altercation with Mr Mills who accused him of having slept with Ms Porter. It was his case that Mr Mills was the aggressor who had attacked him with a spear gun and then a machete.

5. [11]

   No other evidence in the prosecution case identified the appellant as the second offender. Accordingly, the evidence of Ms Porter was critical; her evidence of identifying the appellant as the second offender had to be accepted as being accurate by the jury beyond reasonable doubt.

Ground 2 – In the alternative, the direction given by the learned trial judge on 27 March 2014 was inadequate

1. [12]

   The trial commenced on Monday 24 March 2014. Ms Porter gave evidence on Wednesday 26 March from about 9.30am until about 3.00pm. The following morning the trial judge drew the attention of counsel to an incident that had been raised by members of the jury with the court officer when they were released the previous day. The officer recorded in a document that became MFI 6 what she had been told:

2. [13]

   Footage from a security camera installed in the courtroom was available. The judge described what he made of it as follows:

3. [14]

   I pause at this point to observe that the footage was made available to this Court and I have viewed it a number of times. The trial judge’s description of the “gesture” by the appellant occurring as Ms Porter was “either beside him or further to the back of the room” is not quite accurate. The event occurred just as Ms Porter was drawing level with the dock.

4. [15]

   It is also important to note that the security camera was installed high on the wall above the bench, quite some distance from the dock. The jury box is close to the dock and Ms Porter was passing between the two. Jurors were in a far better position to see what occurred than a person viewing the camera footage.

5. [16]

   The trial judge made the footage available for the parties to view. He then asked the Crown Prosecutor whether he had an application. He replied:

6. [17]

   Counsel then appearing for Mr Penfold applied for the jury to be discharged. She submitted that the security camera footage was equivocal but said "the source of the difficulty that would preclude the jury from exercising an impartial mind is the sentiments that have been expressed in the letter from the court officer". Counsel for the co-accused joined in the application.

7. [18]

   The trial judge refused the application on the basis of the following reasons:

8. [19]

   Some observations can be made about that reasoning. As previously mentioned, Ms Porter had not moved past the dock when the appellant made the gesture in question. Secondly, whether or not Ms Porter was in a position to see it, the more significant thing was the interpretation the jurors may have placed on the gesture and according to the court officer’s note, a “few members” interpreted it as "a threat to Ms Adelaide Porter that [the appellant] was going to hit her”.

9. [20]

   The jury were then brought into court and the judge gave a direction which included:

10. [21]

    Later that day (Thursday 27 March), counsel for both accused asked for the trial to be adjourned to the following Monday in anticipation of an appeal being brought to this Court pursuant to s 5F(3) of the Criminal Appeal Act against his Honour's refusal to discharge the jury. The judge acceded to that request.

11. [22]

    On Monday 31 March the judge was told that the application for leave to appeal was listed before this Court on Thursday 3 April. An application for a further adjournment of the trial was made but refused. Counsel for the appellant also made a further application for the jury to be discharged based both on what the jury had reported to the court officer and upon the asserted inadequacy of the direction the judge had given the jury. On this occasion the Crown Prosecutor opposed the application to discharge, saying that upon reflection it was a matter appropriately dealt with by way of direction. The application was again refused.

Determination

1. [23]

   At the very least, this issue raised a question as to whether a fair-minded and informed observer would have apprehended a lack of impartiality on the part of one or more jurors. That is not to say that there is any suggestion of fault on the part of any juror. But the fact that some jurors had reported perceiving that the appellant had made a threatening gesture directed at the principal Crown witness against him could well give rise to a fair-minded observer thinking that such impartiality of those jurors could be affected adversely.

2. [24]

   It is possible that such perceptions can be sufficiently assuaged by directions given to the jury by the trial judge: see, for example, Webb & Hay v The Queen [1994] HCA 30; 181 CLR 41 at 55-56 (Mason CJ and McHugh J) and 88 (Toohey J). In this case there was a direction, in effect, to ignore the incident and to decide the case on the evidence presented through witnesses and exhibits. To a lawyer or judicial officer that might be thought to be a command to put the incident entirely to one side. But the fair-minded and informed observer would also have noticed that in addition to the judge expressing his personal view about what he saw on the camera footage he also allowed for the possibility that what in fact happened was intimidatory conduct by the appellant towards the most significant witness in the case against him (“It may be interpreted that way, but I don’t see it, frankly”). Given the close proximity of the jury to the incident compared to the obvious disadvantage of the judge interpreting footage recorded from a distant camera, the direction did very little to dispel concern the fair-minded observer might have had about the jury being prejudiced against the appellant.

3. [25]

   The exhortation to the jury by the judge to decide the case on the evidence and not to take into account anything that had been observed in the court room was appropriate and it would in many circumstances be thought sufficient to avoid the risk of a miscarriage of justice: see, for example, Gilbert v The Queen [2000] HCA 15; 201 CLR 414 at [31] (McHugh J). But leaving it open to the jury to consider that, from the judge having viewed the camera footage repeatedly, he thought their reported concern could be valid, tainted the whole affair such that it cannot otherwise be concluded than that the fair-minded informed observer could think that the jury might not bring an impartial mind to bear upon the critical issues they had to decide.

4. [26]

   It might be thought that an accused person who misconducts him or herself in the presence of the jury during a trial should not be heard to later complain that a miscarriage has occurred through prejudice either in the mind of jurors or perceived by a fair-minded observer. But that can only be taken so far. Here, it seems clear that only some of the jurors saw the incident. However, it is a practical reality that it is likely their observations and interpretations of the event would have been conveyed to the jurors who did not see it. There could be no certainty that what would be conveyed would be consistent with what actually occurred, particularly in circumstances where the event occurred in no more than about a second.

5. [27]

   For these reasons grounds 1 and 2 of the appeal were made good.

Evidence pertaining to Ms Porter’s identification

1. [28]

   Ms Porter said that she had lived her whole life in the Nelson Bay area. On the afternoon of 12 October 2012 she was lying on her bed talking on her phone to a friend when there was a knock at the door. She described the ensuing events which, on any view, were chaotic. Ms Porter said “there was a lot of yelling”.

2. [29]

   Ms Porter thought the whole incident took a minute or two: “it wasn’t a long time at all”. Mr Mills thought it would not have taken any longer than four or five minutes, probably less. He described Ms Porter as hysterical the whole time, crying and screaming.

3. [30]

   Ms Porter knew Scott McGuire. She said that when the men first entered the house she called out, “Scott, not at my house. You’re not welcome here. Please leave.”

4. [31]

   She said that the second man followed her as she retreated to her bedroom whilst there was an altercation between McGuire and Mr Mills. The second man did not say anything but she said:

5. [32]

   As to the second man she said (in her evidence) he looked "extremely familiar" but she “couldn’t put a name to who he was”. She thought at the time that he was the younger brother of a man who received guitar lessons from her father. She qualified this in her evidence by saying that she had recently found out that “he used to hang around with the boy that my dad taught guitar”. In cross-examination she said “he used to be babysat by the parents of the guy my dad taught guitar to at the time when I was young”.

6. [33]

   Ms Porter said she gave a description to the police of the second offender that he was of “similar build to Scott [McGuire] in height and shoulder structure and everything else. He had mousey blond hair or blond/brown hair with a round flat sort of face”. When asked by the prosecutor how he was dressed she said, “Quite casually, in dark clothes”. During an identification procedure five months later she said “I think he was in a dark hooded jacket at the time with a hood on”.

7. [34]

   Ms Porter made a statement to police on the night of the incident (12 October 2012). Three weeks, or may be a month later (she said she could not recall exactly) Ms Porter heard that the name of the second intruder was “Gavin”. Friends had told her that the “word around Nelson Bay [was] that it was a guy named Gavin”. Her brother had heard this as well. One of the friends “gave me two names saying it could’ve been one Gavin that he didn’t remember the last name of or another guy that could’ve been Gavin Bagnall”. She said she knew Gavin Bagnall and it was not him.

8. [35]

   Ms Porter said that three or four months after she was given the name “Gavin” she saw the second intruder walk past her when she was at the Salamander Shopping Centre. She said she remarked to a friend who was with her, “Do you know who that is? That was the guy that was at my house that day with Scott”. Her friend did not know the man but Ms Porter said “I knew he was the bloke, he was the guy that was at my house that day.”

9. [36]

   Ms Porter was asked if she saw the man again and she said that a few weeks later:

10. [37]

    She said that she then saw him at Anna Bay on an occasion when she was driving past on her way to pick up her father. On the return journey she saw him again and asked her father who he was. He told her that the man was Gavin Penfold. She said she told her father that he was one of the men who were at her house “that day”. She continued her evidence as follows:

11. [38]

    In cross-examination, she said “the second I saw him I identified him as the second offender”. She denied that this was because she had been told that the second offender was “Gavin Penfold” but agreed it was after she had heard the rumour that this person was “Gavin”. She was dismissive of the rumour: “That’s Nelson Bay. There’s a lot of rumours about a lot of things. I never listen to what anyone says”.

12. [39]

    Detective Senior Constable Mitchell Harvey was the officer in charge of the investigation. He gave evidence that Ms Porter rang him on 14 March 2013 to advise that she now had the name for the second intruder; she said she had seen that person earlier that day. He arranged to take a further statement from her that day. Ms Porter agreed that in that statement she had said she had:

13. [40]

    Ms Porter maintained in her evidence, however, that she had not got the full name from the grape vine, only "Gavin". She said that what was recorded in the statement was not what she had told the police. Detective Harvey gave evidence that Ms Porter had been given the statement to read and she appeared to read it before she signed it. She did not suggest that any changes were required.

14. [41]

    Later on 14 March Detective Harvey and another officer attended the appellant's home and arrested him. The appellant exercised his right to silence and his right not to participate in an identification parade.

15. [42]

    On 20 March 2013 Ms Penfold underwent a photographic identification procedure whereby she was shown the images of 20 men and identified that of the appellant in the 10th of the photographs displayed. Having selected that photograph she said that he was the second intruder into the house and described him as not being the ringleader but "the backup". She also said:

16. [43]

    She reviewed the remaining photographs and then had the following conversation with the interviewing officer:

17. [44]

    In cross-examination, Ms Porter said that she could not estimate the number of times she had seen the appellant in her twenty years of growing up in the area, although she could say that she saw him a lot more when she was younger; it was “at least ten times throughout my high schooling”. She finished high school at the end of 2010. Since high school she thought she had seen him “maybe once or twice around Nelson Bay, I don’t recall sorry, at all”.

Appellant’s submissions

1. [45]

   Mr Johnson, senior counsel for the appellant submitted that there was a reasonable doubt about the accuracy of Ms Porter’s identification of his client and, as the prosecution case relied solely upon it, there should have been a reasonable doubt that guilt had been proved.

2. [46]

   It was submitted that there was no real dispute that one feature of the description of the second intruder provided to police on the day of the incident was wrong: that she recognised him as being the younger brother of someone who her father taught guitar. Ms Porter modified the description in her evidence but maintained that there was some connection with her father's guitar teaching. However, there was no evidence in the trial as to whether the appellant had any such connection. The submission that Ms Porter was wrong in this aspect of her description overstates the matter but it remains that it did not serve to confirm the correctness of her identification.

3. [47]

   Reference was made to her statement during the photographic identification procedure on 20 March 2013 that “I couldn’t really see too much of him” and it was submitted that her description of the events on 12 October 2012 supported the correctness of that statement.

4. [48]

   As a general proposition, it was submitted that the series of events leading to Ms Porter's ultimate claim to identify the appellant, by name and by photograph, were such as to raise a real doubt about the reliability of her evidence in that regard.

Crown submissions

1. [49]

   The written submissions for the Crown contained a detailed analysis of the evidence of Ms Porter. It was submitted that it was "perfectly open" to the jury to accept her evidence and to reject the contention that her photographic identification of the appellant was contaminated by the rumours she had heard. It was noted that Ms Porter denied paying heed to such rumours. This was said to be supported by the fact that she did not go back to the police until months later when she was sure of the identity of the second intruder.

2. [50]

   It was submitted that such inconsistencies that might exist in the evidence were minor and explicable by Ms Porter's youth; her level of comprehension; her anxiety over the incident; her diagnosed anxiety disorder; and the time that had elapsed between the incident and the trial.

3. [51]

   In the Crown's submission, this was not a case of "stranger-to-stranger" identification but involved a gradual recognition over time precipitated by a sense of familiarity with the person she saw at the time of the incident. It was also noted that there was nothing to indicate that someone had suggested to her that the person she had seen on the subsequent occasions was the second intruder. To the contrary, she had recognised the person as the second intruder and then asked who it was. She then reinforced that recognition by her selection of the photograph of the appellant.

4. [52]

   Finally, it was submitted that any doubt experienced by this Court would be assuaged by having regard to the advantage enjoyed by the jury in seeing and hearing the witness in the atmosphere of the trial, citing M v The Queen (1994) 181 CLR 487 at 494.

Resolution

1. [53]

   The principles concerning the determination of a ground of appeal that a verdict of guilty is unreasonable, or cannot be supported, having regard to the evidence, are well known. In short, the question is whether, upon independently assessing the evidence, this Court is of the view that it was open to the jury (in the sense explained by the High Court) to conclude beyond reasonable that the appellant was guilty: M v The Queen [1994] HCA 63; 181 CLR 487 at 493; Jones v The Queen [1997] HCA 56; 191 CLR 439; MFA v The Queen [2002] HCA 53; 213 CLR 606; Libke v The Queen [2007] HCA 30; 230 CLR 559 and SKA v The Queen [2011] HCA 13; 243 CLR 400.

2. [54]

   As I previously observed, it was necessary for the jury to accept beyond reasonable doubt the identification of the appellant as the second intruder as being accurate and reliable. I have no doubt that Ms Porter would have presented to the jury as an honest witness who firmly believed in her own mind that her identification was completely accurate and reliable. Therein lies one of the recognised difficulties with identification evidence which has been described by the High Court as having a "seductive effect": Domican v The Queen [1992] HCA 13; 173 CLR 555 at 561.

3. [55]

   Section 116 of the Evidence Act 1995 (NSW) requires a judge to inform a jury "that there is a special need for caution before accepting identification evidence". The suggested direction in the Criminal Trials Bench Book published by the Judicial Commission of New South Wales includes that the judge should tell the jury that special caution is required even in circumstances where a witness may appear to be impressive, even persuasive, in that he or she may present as honestly and sincerely believing that the identification is correct. The s 116 direction that trial judge gave the jury in the present case included such a warning.

4. [56]

   Accepting Ms Porter's honesty and sincerity, it is inescapable that the reliability of her identification on 20 March 2013 of the man she said was the second intruder in the break-in at her home on 12 October 2012 was potentially adversely affected by a number of matters.

5. [57]

   First, the incident was sudden in onset and took place over a few minutes in chaotic, violent and traumatic circumstances. Ms Porter was described by her partner as hysterical the whole time, crying and screaming. She included in her statement of 12 October 2012 that she suffered from anxiety.

6. [58]

   Secondly, Ms Porter's description to police of the second intruder included reference to the colour of his hair, yet five months later she said that he had a hood on his head. The description also included that he had some connection with a person who had been taught guitar by her father. Although her description of the connection changed over time, there was no evidence that the appellant had any such connection. In short, this aspect of the description was entirely neutral.

7. [59]

   Thirdly, although Ms Porter said that she was dismissive of rumours that the second intruder was "Gavin" and that she insisted she was not given the name "Gavin Penfold" before her father told her, she said in her statement of 14 March 2013 that she had "heard on the grape vine in the Nelson Bay area that Gavin Penfold was the second offender".

8. [60]

   Fourthly, the delay between the incident and the first sighting at Salamander is significant; she said the intervening period was some three or four months. And, despite her insistence to have been dismissive of rumours, the potential for her memory to have been affected, at least subconsciously, by having heard that the second intruder was "Gavin" or "Gavin Penfold" is not insignificant.

9. [61]

   Fifthly, a critical question is whether Ms Porter was correct in her claimed recognition of the second intruder at the Salamander shops. If there is a doubt about it, there must be a doubt about whether the person she saw on the subsequent occasions was the second intruder or whether the image of the person she saw at Salamander had supplanted his image in her memory. This, and the previous point, are variations of the "displacement effect" discussed by Stephen J in Alexander v The Queen [1981] HCA 17; 145 CLR 395 at 409-410.

Conclusion

1. [62]

   The combined effect of these difficulties, coupled with the fact that there was nothing else in the entire case that supported the correctness of the identification, led me to the conclusion that the jury should have had a reasonable doubt.

2. [63]

   It is for these reasons that I joined in the making of the orders, including the entry of a verdict of acquittal, at the hearing on the appeal on 3 March 2016.