Penney v The Queen (A66-1997) [1998] HCA 51 13 August 1998
ORDER
Appeal dismissed.
On appeal from the Supreme Court of South Australia
Representation:
K V Borick with A J Redford for the appellant (instructed by Scales & Partners)
P J L Rofe QC with J McGrath for the respondent (instructed by Director of Public Prosecutions (South Australia))
Notice: This copy of the Court’s Reasons for Judgment is subject to formal revision prior to publication in the Commonwealth Law Reports.
CATCHWORDS
Penney v The Queen
Criminal law – Appellant convicted of attempted murder of his wife by setting fire to car – Whether verdict was unsafe or unsatisfactory or productive of a "miscarriage of justice" entitling the appellant to an acquittal or retrial – Significance of a defective police investigation – Whether misdirection on elements of offence and motive – Relevance in this context of marital discord.
McHUGH J. I agree that this appeal should be dismissed for the reasons given by Callinan J.
GUMMOW J. The appeal should be dismissed. I agree with the reasons of Callinan J.
KIRBY J. I agree with Callinan J.
HAYNE J. I agree with Callinan J.
CALLINAN J. This is an appeal from the Court of Criminal Appeal of South Australia against an order dismissing an appeal against a conviction (by a majority verdict) of attempted murder.
Facts
Mr Michael Penney (the appellant) and his wife were, on 30 October 1995, on the verge of estrangement. They owned two motor cars, a Magna and a Torana. Mrs Penney was a school teacher who usually drove the Magna to her work. On that date the appellant asked his wife to use the Torana, the car he usually drove. He said he wanted to have the indicators on the Magna checked. On her way to work in the Torana the appellant drove the Magna behind it and signalled his wife to stop by flashing the headlights of the Magna. When she stopped he told her that he had left his briefcase in the boot of the Torana. He then went to the rear of the Torana whilst his wife remained in the driving seat. She heard the boot being opened. There was a pause, and then the appellant indicated to his wife that she might drive away.
Another motorist driving behind Mrs Penney's car less than two minutes later noticed an ignited rag protruding from its petrol tank filler. That motorist managed to attract Mrs Penney's attention so that she could stop the car to enable him to extinguish the rag. He saw no cap on the filler to the petrol tank. Police officers found a plastic receptacle in the boot containing about 20 litres of unleaded petrol. There were also various tins and a bottle in the boot, two of which contained a small quantity of…
Grounds of appeal
[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.
[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.
[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.
Consideration
[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.
[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.
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Details
AGLC
Penney v The Queen [1998] HCA 51
Case
[1998] HCA 51
Decision Date
CaseChat Overview and Summary
This case concerned an appeal by Michael Penney (the appellant) to the High Court of Australia against the decision of the Court of Criminal Appeal of South Australia, which had dismissed his appeal against a conviction for attempted murder. The appellant was convicted by a majority verdict of attempting to murder his wife by setting fire to her car.
The High Court was required to determine whether the verdict of attempted murder was unsafe or unsatisfactory, or otherwise resulted in a miscarriage of justice, thereby entitling the appellant to an acquittal or a retrial. This involved considering the significance of a potentially defective police investigation, whether there had been a misdirection by the trial judge on the elements of the offence and motive, and the relevance of marital discord to the case.
The Court reasoned that the jury was entitled to consider all the proved circumstances of the case, not just the opinions of expert witnesses. The opinions of experts were relevant but could not pre-empt the jury's duty to assess the combined effect of all evidence. The Court found that the trial judge had correctly directed the jury on the essential elements of attempted murder, which included a voluntary intention to kill, an act immediately directed towards fulfilling that intention, and the absence of lawful excuse. The Court of Criminal Appeal had also properly considered the ground that the verdict was unsafe and unsatisfactory, and the High Court agreed with their conclusion.
The appeal was dismissed.
Orders
Orders of the court
Appeal dismissed.
Background
Background to the litigation
This is an appeal from the Court of Criminal Appeal of South Australia against an order dismissing an appeal against a conviction (by a majority verdict) of attempted murder.Facts Mr Michael Penney (the appellant) and his wife were, on 30 October 1995, on the verge of estrangement. They owned two motor cars, a Magna and a Torana. Mrs Penney was a school teacher who usually drove the Magna to her work. On that date the appellant asked his wife to use the Torana, the car he usually drove. He said he wanted to have the indicators on the Magna checked. On her way to work in the Torana the appellant drove the Magna behind it and signalled his wife to stop by flashing the headlights of the Magna. When she stopped he told her that he had left his briefcase in the boot of the Torana. He then went to the rear of the Torana whilst his wife remained in the driving seat. She heard the boot being opened. There was a pause, and then the appellant indicated to his wife that she might drive away. Another motorist driving behind Mrs Penney's car less than two minutes later noticed an ignited rag protruding from its petrol tank filler. That motorist managed to attract Mrs Penney's attention so that she could stop the car to enable him to extinguish the rag. He saw no cap on the filler to the petrol tank. Police officers found a plastic receptacle in the boot containing about 20 litres of unleaded petrol. There were also various tins and a bottle in the boot, two of which contained a small quantity of methylated spirits. A spent match was floating in one of the tins. The appellant's evidence was that he had bought the 20 litres or so of petrol a few days earlier and had forgotten that he had left it in the boot of the Torana. The Proceedings in the Supreme Court Both the appellant and the respondent called experts at the trial who were unable to assign a definite cause for the ignition of the rag. Various possible causes were discussed, including innocent and accidental ones. These latter the appellant relied on in the Court of Criminal Appeal for a proposition that the respondent had failed to negative hypotheses consistent with innocence. With respect to this, Duggan J, with whom Doyle CJ and Perry J agreed, said[1]:"The principal proposition which Mr Borick [counsel for the appellant] put to the court in relation to the evidence of the expert witnesses was that, of itself, it gave rise to a reasonable possibility that the fire started accidentally. Accordingly, so it was said, the prosecution had failed to prove beyond reasonable doubt that the accused performed the acts which the prosecution relied upon as the actus reus of the offence. This submission seems to proceed on a basic misunderstanding as to the nature of circumstantial evidence and the way in which it is to be approached by a jury. The process of reasoning advanced by the appellant involves isolating the expert evidence and considering whether, on that evidence, a reasonable possibility exists that the incident was accidental.The role of an expert witness is to express opinions on matters which are not, or are not wholly, within the knowledge and experience of ordinary persons[2]. Opinion evidence in a case such as the present is based on a restricted collection of facts relevant to the expression of the opinion. However, the jury's function when considering the issue to which the opinion evidence is relevant may well involve, as it did in the present case, consideration of a large number of proved circumstances which, for obvious reasons, were not put to the experts. The opinions of the experts are relevant in the ultimate assessment, but they cannot pre-empt the duty of the jury to consider the combined effect of all the circumstances which they find proved.The prosecution case was that proof of the appellant's deliberate involvement was to be found in other evidence and the jury was entitled to act on that evidence if satisfied that the inference sought by the prosecution was established beyond reasonable doubt. Furthermore the finding for which the prosecution contended was not inconsistent with the views of the experts in the sense that they could not rule out the possibility of human intervention."[1]R v Penney, unreported, Court of Criminal Appeal of South Australia, 21 March 1997 at 8-9.[2]Clark v Ryan (1960) 103 CLR 486; R v Bonython (1984) 38 SASR 45 at 46.
Evidence
Evidence Before The Court
Full text does not contain this section.
Decision
Reasons for decision
HUGH J
GUMMOW J
KIRBY J
HAYNE J
CALLINAN J
There is nothing in the next submission that the trial judge misdirected the jury with respect to the elements of the offence. The submission was not made out by reference to any alleged defective direction. An examination of the transcript of the summing up shows that the trial judge on more than one occasion identified the essential elements of the offence and stressed the need for proof of each of them. One example will suffice:"The crime of attempted murder consists of three elements; you must be satisfied that the prosecution has proved each of them. First, the prosecution must prove a voluntary intention on the part of the accused to kill his wife. Nothing less than a specific intention on his part to kill her is sufficient.Secondly, the prosecution must prove an attempt to execute that intention to kill, that is to say, the prosecution must prove an act or a series of acts which are immediately directed towards fulfilling that intention.The third element which the prosecution must prove is that the act was done without any lawful excuse. That is to say, the accused had no lawful reason for doing what he did."Conclusion and Order The only other submission that was developed was that the verdict was unsafe and unsatisfactory in the sense previously mentioned. The Court of Criminal Appeal carefully considered this ground in accordance with its obligation to do so as formulated in M v The Queen[22] and concluded that the verdict was not unsafe and unsatisfactory. In my opinion that conclusion was, on a consideration of the whole of the case, a correct one.[22](1994) 181 CLR 487. I would dismiss the appeal.