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Court of Criminal Appeal 2 June 2016

Penfold v R

[2016] NSWCCA 101

Assault & violenceTheft & property
CRIMINAL LAW APPEAL AGAINST CONVICTION AGGRAVATED BREAK, ENTER AND STEAL FAIR DIRECTION GIVEN INADEQUATE APPEAL AGAINST CONVICTION

Citation: Penfold v R [2016] NSWCCA 101
Court: NSW Court of Criminal Appeal
Date: 2 June 2016
Judge(s): Bathurst CJ, Hall J, R A Hulme J

Background

The appellant was convicted by a jury in April 2014 of aggravated break, enter and commit a serious indictable offence, specifically assault occasioning actual bodily harm in company, under s 112(2) of the Crimes Act 1900 (NSW). The offence arose from a home invasion at a Nelson Bay flat in October 2012, during which two men forced entry and assaulted the occupants. One intruder was identified at the time as a known acquaintance; the appellant was identified as the other intruder solely through the evidence of one witness, Ms Porter.

Ms Porter's identification of the appellant did not occur at the time of the incident. It arose later, following a claimed recognition at a shopping centre some three to four months after the break-in, and was complicated by her prior exposure to rumours naming the appellant. No other evidence in the prosecution case connected the appellant to the offence.

The appellant challenged his conviction on three grounds: that the trial judge erred in refusing to discharge the jury after jurors perceived a threatening gesture from the dock; that any direction given to remedy that perception was inadequate; and that the jury's verdict was unreasonable or unsupported by the evidence.

  • Whether the trial judge erred in refusing to discharge the jury after several jurors reported perceiving the appellant make a threatening gesture toward the principal prosecution witness as she left the witness box.
  • Whether the direction given to the jury to disregard the perceived threat was adequate to cure the risk of partiality.
  • Whether the jury's verdict was unreasonable or not supported by the evidence, given the significant problems with the sole identification evidence.

Decision

Grounds 1 and 2: Jury discharge and adequacy of direction

At the conclusion of Ms Porter's evidence, jurors reported to a court officer that some of them had seen the appellant raise his fist toward his cheek in a manner they interpreted as a threat directed at Ms Porter. The trial judge viewed security camera footage and considered the gesture equivocal, then refused to discharge the jury and instead directed them to disregard what they may have perceived.

The Court of Criminal Appeal held that this approach was erroneous on both grounds. A fair-minded and informed observer, aware of what the jurors had reported and the circumstances in which it occurred, would have apprehended a real possibility that one or more jurors could not bring an impartial mind to the verdict. The direction given was found to be inadequate to overcome that risk. Critically, jurors in the jury box were in a significantly better position than anyone viewing the distant security camera footage to assess what had actually occurred.

Ground 3: Unreasonable verdict

The Court granted leave to appeal on the third ground and found the verdict unreasonable. The identification evidence of Ms Porter was the entirety of the case against the appellant, and it was beset by multiple serious difficulties. These included her distressed state during the incident, an inconsistency in her description regarding the intruder's hair and headwear, the absence of any evidence connecting the appellant to a detail she included in her initial description, her acknowledged exposure to local rumours naming the appellant before she formally identified him, and the lengthy delay before her claimed recognition. The Court applied the principle, discussed in Alexander v The Queen, concerning the "displacement effect," noting the real risk that exposure to a name or image can unconsciously supplant an original memory. Finding that the jury should have had a reasonable doubt, the Court entered a verdict of acquittal rather than ordering a retrial.

Orders Made

  • Leave to appeal on ground 3 (unreasonable verdict) granted.
  • Appeal allowed on all three grounds.
  • Conviction quashed.
  • Verdict of acquittal entered.

Key Takeaways

  • A trial judge's refusal to discharge a jury must be assessed against whether a fair-minded and informed observer would apprehend a real possibility of partiality, not merely whether the judge personally considered a perceived incident to be equivocal.
  • Where jurors are physically closer to an event in the courtroom than a security camera mounted high on a wall, their vantage point carries significant weight and cannot readily be dismissed by reference to footage alone.
  • A judicial direction to disregard a perceived threat from the dock will be inadequate where the circumstances are such that the risk of juror partiality cannot be sufficiently cured by words alone.
  • Identification evidence that constitutes the whole of the prosecution case warrants close scrutiny; where multiple factors undermine its reliability, including delay, prior exposure to the suspect's name, and internal inconsistencies in descriptions, a verdict resting on it alone may be unreasonable.
  • The "displacement effect" recognised in Alexander v The Queen remains a live consideration: unconscious contamination of a witness's memory by subsequent information can cast doubt on the reliability of a claimed recognition, even where the witness sincerely believes the identification to be accurate.

Legislation and Cases Referenced

Legislation
- Crimes Act 1900 (NSW) s 112(2)
- Criminal Appeal Act 1912 (NSW) ss 5(1), 5F(3)
- Evidence Act 1995 (NSW) s 116

Cases
- Alexander v The Queen [1981] HCA 17; 145 CLR 395
- Domican v The Queen [1992] HCA 13; 173 CLR 555
- Gilbert v The Queen [2000] HCA 15; 201 CLR 414
- Jones v The Queen [1997] HCA 56; 191 CLR 439
- Libke v The Queen [2007] HCA 30; 230 CLR 559
- M v The Queen [1994] HCA 63; 181 CLR 487
- MFA v The Queen [2002] HCA 53; 213 CLR 606
- SKA v The Queen [2011] HCA 13; 243 CLR 400
- Webb & Hay v The Queen [1994] HCA 30; 181 CLR 41