Penfold v The Queen

[2016] NSWCCA 101

Court of Criminal Appeal

Supreme Court

New South Wales

• Summary available
• Amendment notes

Medium Neutral Citation:	Penfold v R [2016] NSWCCA 101
Hearing dates:	3 March 2016
Date of orders:	03 March 2016
Decision date:	02 June 2016
Before:	Bathurst CJ at [1]; Hall J at [2]; R A Hulme J at [3]
Decision:	1. Leave to appeal granted. 2. Appeal allowed. 3. Conviction quashed. 4. Verdict of acquittal entered.
Catchwords:	CRIMINAL LAW – appeal against conviction – aggravated break, enter and steal – where juror(s) perceived accused to threaten witness from the dock – where judge directed jury not to take perceived threat into account – judge refused application to discharge jury – fair-minded and informed observer would have apprehend lack of impartiality by juror(s) – direction given inadequate – failure to discharge jury erroneous CRIMINAL LAW – appeal against conviction – identification evidence – where case against appellant depends upon that evidence – evidence problematic for several reasons – verdict unreasonable or not supported by the evidence – appeal allowed – conviction quashed
Legislation Cited:	Criminal Appeal Act 1912 (NSW) ss 5(1), 5F(3) Evidence Act 1995 (NSW) s 116
Cases Cited:	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
Category:	Principal judgment
Parties:	Gavin Penfold (Appellant) Regina (Respondent)
Representation:	Counsel: Mr M Johnston SC ( Appellant) Mr N Adams (Crown)   Solicitors: Legal Aid NSW Solicitor for Public Prosecutions
File Number(s):	2013/78811
Decision under appeal	Court or tribunal: District Court Date of Decision: 09 September 2014 Before: Maiden SC DCJ File Number(s): 2013/78811

Judgment

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. 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. 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. 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. 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. 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

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.

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.

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.

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.

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 1 – The learned trial judge erred in declining to discharge the jury

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

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:

"Upon releasing the jury for the day at approximately 3.45pm one jury member enquired from me whether it would be possible to view the security footage of the courtroom. They noticed that there were cameras in the courtroom and wanted to review something that some of the members noticed occurred at the conclusion of Ms Adelaide Porters evidence.

Without wanting to go into detail with the jurors in relation to the security requirements in the courtroom I advised the jury that security footage wasn’t accessible but I could raise any issues with the Judge.

Some jury members then indicated to me on an informal basis as we were walking out of the jury room that it appeared to a few members who were watching the accused as Ms Adelaide Porter walked out of the witness box at the conclusion of her evidence they viewed Mr Gavin Penfold raise his fist to his cheek in what they have taken to be a threat made to Ms Adelaide Porter that he was going to hit her.

I have indicated to the jury that I would bring that matter to the Judges attention but that at this point of time, and due to the fact I was releasing them for the day that my belief was security footage was not available and the matter would be raised with the Judge. I then released the jury at 3.50pm." (Emphasis added)

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

"It does show Ms Porter leaving or walking down in front of the jury box and past the dock and she appears to be looking straight ahead towards the back of the room as she's leaving. It does show Mr Penfold turning, and this is my interpretation, turning his head which would be to his left and that is away from Ms Porter who is either beside him or further to the back of the room and then his fist being placed against his jaw or side of his face, possibly fist, which could be consistent with either a fist being made or it could be consistent with him just putting his hand on that part of his face. I was unable to determine whether or not there was any threat that could be inferred from that action. That's my interpretation. It may be others but that's how I see it from that."

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.

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.

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:

"I don't have any application, but I anticipate there will be application or applications coming to your Honour and when that happens I don't know that the Crown can oppose them." (Emphasis added)

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.

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

“I am not going to discharge the jury and I will give some reasons for that. In this most unusual matter, as indicated earlier today, I received information from a Court Officer, who was in Court 4 Newcastle. I asked that officer to put in writing what was said to her by members and members of the jury.

Application has been made on behalf of each accused for the jury to be discharged. Ms Hutchins, who appears for the accused Penfold, correctly raises two matters. Firstly, there is the conversation between the officer and one jury member which is set out in the MFI, in the first paragraph and secondly, there is what appears to be informal discussion between other members of the jury not in the - or as they were leaving the jury room.

The information received is a request by the jury to review security footage and that is to form a view as to what occurred. In my mind, that creates that there some uncertainty by the jurors as to what did or did not occur.

In my mind, having now viewed the footage a number of times, it is clear that Ms Porter had moved past the dock and was not in sight, that is her sight, of Mr Penfold, or indeed of Mr McGuire and thus, in terms of there being any threat that she was aware of, that could not be demonstrated.

The counsel raised with me the prospect of prejudice against each accused and I propose to deal with any possible prejudice by issuing a firm direction that the jury is not to consider any actions by anyone, including the accused in this jury, unless it is evidence and they must disregard any matter that is not evidence, from their minds.

I will also indicate to them that it is my job and not theirs, to be involved with security matters, but I will tell them that having viewed the footage, I am of the view that there was not any threat made to Ms Porter and in my mind the action or inaction of Mr Penfold, is not a matter that amounted on any version, to a threat to Ms Porter.”

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”.

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

“ … it is not your job, and you must not, and I emphasise must not, consider any matter in relation to this trial other than the evidence, and you’ve heard evidence, under oath, from the witness box and from the exhibits, and I can tell you, from my experience, that often things are misinterpreted or seen in any way, and it’s my job in respect of matters of security and looking at image, that’s my job, not yours.

…

I have shown that image to counsel and, having seen that image a number of times, I am of the view that the trial should proceed, because, looking at the image, it would appear that as Ms Porter left the room, she is looking towards the back of the room, perhaps to a person who was, who was in a white shirt who was sitting in the public area, and it would appear that the action of Mr Penfold that was identified by one of you occurs after she’s passed him …

So, and in terms of the action of Mr Penfold, I do not see his action in any way being intimidatory or any other matter for that part. It may be interpreted that way, but I don’t see it, frankly. …

So, having viewed the matter, I am of the view that you must, and I direct you, in respect of, and I will in any event direct you that you’re not allowed to look at anything that isn’t evidence. That’s where you draw the facts from, and to consider to look at what may or may not happen in any other part of the room other than the witness box or in respect of the exhibits, is not allowed, and

indeed you are directed, and I direct you, to excuse and to dismiss all such matters. Indeed, I will give you a direction later that in respect of the identification, or the supposed, alleged identification of Mr Porter, you are not to form any view of him as he sits in that witness box - sorry, Mr Penfold, as he sits in the witness box. It’s not for you to - it’s for the witness, coming from evidence, not your job. Very easy for all of us to become investigators.

…

And, of course, if you start forming any conclusions from other matters, an accused person not only will have the chance to defend themselves, or to challenge it, they won’t even know. That’s how important it is, and that’s a matter of absolute fairness that you must, and I direct you, to apply.” (Emphasis added)

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.

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

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.

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.

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.

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.

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

Evidence pertaining to Ms Porter’s identification

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”.

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.

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.”

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:

“[He] was pacing backwards and forward keeping his body towards me and towards Mark, just pacing between sort of where we were and what was going on. I don’t have a lot of memory of the altercation itself. I try not to watch violence.”

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”.

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”.

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.

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.”

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

"I'd seen the same figure as the guy that was at my house walking along Gan Gan Road, I think – not Gan Gan Road, Taylor's Beach Road. I never saw a face to the guy that I saw walk in but the same figure of the guy walked in along there was the exact same figure of the man that was at my house that day".

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:

“That day I called Detective Harvey. Before I did, when I saw him at Salamander, I thought I knew who he was but I wasn’t 100 per cent sure. We both live in the same area, the same town. It’s such a small area, everyone knows everyone. There’s one high school. Well, there’s two high schools, one’s a private, one’s a public. I went to both. It’s such a small area that you know everyone through everyone, so when I saw him at Salamander I thought that that was Gavin Penfold but I wasn’t 100 per cent sure in my own mind. I knew that it was the guy – that guy that I saw at Salamander was Gavin Penfold but I didn’t know if that was his name for sure.”

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”.

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:

"heard on the grape vine in the Nelson Bay area that Gavin Penfold was the second offender with Scott McGuire who committed this offence. When I heard this it immediately came back to me and I was able to put Gavin Penfold's name to the face which was the second offender with Scott McGuire who committed this offence." (Emphasis added)

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.

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.

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:

"He was, when we opened the door I realised it was two men who weren't allowed into my house. He's kicked the door open and helped the other intruder into my house.

He followed me around and made sure I walked to my bed so I couldn't help the other guy that was attacking my, sort of boyfriend at the time (and she was interrupted).

He was standing on the left hand side when they first got to my door.

He made sure that I sat on my bed, so that I couldn't help. After he turned around and walked back to where the other guy had my boy… my partner at the time, on the ground, I got up and walked towards them and he sort of just stood at me to make sure I couldn't and wouldn’t do anything, kind of shadowed me everywhere around the house. And also, like, attacked my partner at the time.

I don't know if he had a weapon or not at the time. I don't remember. I know the other guy definitely did.”

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

Q. So the only person you recognise from being at your home that night is the guy in number ten?

A. Yes.

Q. Right, ok. That fellow there? (Photograph 10 was again on the computer screen)

A. Yes.

Q. So out of those 20 images you just viewed Adelaide, this is the only fellow you recognise …?

A. Definitely

Q. … as being involved in the offence that night?

A. Definitely.

Q. Definitely?

A. Yeah, I think so, yes. That look scares the hell out of me…

Q. Does he look much different in that photo to the night he came to your home?

A. Umm, not really, not too much, but then again I couldn't really see too much of him. I think he was in a dark hooded jacket at the time [she held both hands up beside her neck/lower jaw area] with the hood on. So you couldn't get too much of a look at him at the time. I suffer anxiety as well, so when people come into my house I, do you know what I mean? But, yeah, definitely like … there are those eyes … I could see the eyes, that was …

Q. Is there something particular about him that makes you think that, that makes you recall that this was the bloke there, or is it just his general appearance or are you positive that that's him?

A. I've known him for about four, five years ago, just through being local at the Bay, just running into each other. Not actually speaking or talking on any occasions really. But friends of mine would've had some association and stuff with him years ago. So, at the time I knew it was someone very familiar to me. Umm, since I've seen him and I've said that was him at my house. Since I've seen the photo [she gestured at this point with her hand towards the computer screen showing photo number 10] it was him at my house.

Q. This is definitely the fellow …?

A. Definitely the fellow that was at my house.

Q. Your ability to recall this fellow and to identify him, is it based on your knowledge of him years ago or is it based on your knowledge of him being at your house that night?

A. Being at my house that night.

Q. So, do you want to confirm him as being at your house that night?

A. Yes. It almost looks like a similar shirt he had on that same night, do you know what I mean? Like, whether it was, but, he wore clothes big for him, umm, yeah." (Emphasis added)

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

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.

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.

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.

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

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.

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.

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.

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

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.

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.

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.

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.

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.

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.

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".

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.

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

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.

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.

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Amendments

03 June 2016 - Spelling of counsel's name corrected

Decision last updated: 03 June 2016