Penfold v R [2016] NSWCCA 101

Court of Criminal Appeal Supreme Court New South Wales 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)