Michael Penney Homepage

Attempted Murder (arson) 1994

Author: Dr Robert N Moles

See the report of the High Court Appeal in this case

Attempted murder of wife

Michael Penney was charged with the attempted murder of his wife. It was said that he threw a lighted match into a tin of methylated spirits which started a fire in the boot of the vehicle driven by his wife, as it was about to move off.

As the trial judge said:

[the prosecutor’s] case from the outset was abundantly clear, that this was a case where the fire was started by Mr Penney throwing a lit match into a tin of methylated spirits.
[Trial Transcript p569– 570]

His wife said that she married Michael in January 1989. They were both school teachers and they had two children. During 1994 they had some problems with their marriage. Michael left the house for six weeks at one time, and then for seventeen weeks at another time. He returned to the house in late September 1994. They had two cars. The Magna was the wife’s and the Torana was Michael’s. Michael usually dropped the children off at school in the mornings. If there was just one to take, he took the Torana. On a Tuesday he would take the Magna as both of the children were to be taken to school on that day. The incident which gave rise to the charges occurred on 30 October 1994. His wife said that she would have driven the Torana about a week before the incident occurred. She said that there was a petrol cap on it then. The boot leaked and for this reason she never used it. In 1993 they had taken out insurance policies - $250,000 on her life and $150,000 on Michael’s life. She said that Michael tended to withdraw when he was upset and she would get angry. They had been to a marriage counselor in July 1994.

Michael was charged with the attempted murder of his wife, by setting fire to the boot of the car she was driving on 30 October 1994. One of the son’s said that his dad had bought a petrol can, about two weeks before then. It was subsequently found, full of petrol, in the boot of the car being driven by the wife. The weekend before the incident they had gone on a trip to Hindmarsh Island some 60 kms away from where they lived at the time. They went in the Magna. Michael was playing in his cricket team that weekend. He didn’t take his cricket gear with him. He left the family and friends at the holiday house in the morning around 11am, and came back around 8.30pm after he had finished his cricket. The wife said that he was quieter than usual that night. After the holiday weekend, they got home around 4pm on the Sunday. The wife said that she was near the garage, but didn’t notice anything unusual about the petrol cap on the Torana. She saw Michael wiping the lawnmower with some rags that evening. He had a small can of petrol for the mower. She went to bed around 8pm that night.

They got up the next morning around 7am. The wife said they’d have to talk about a divorce. She said Michael would have gone outside to change some of the things around with the cars. Making sure that he had his briefcase and his papers for school in his car. She expected to take the Magna to work. Then Michael said that he wanted to take the Magna because the indicators weren’t working properly on it. After going to the bank machine to get some cash, they went off on their different ways. After a while, the wife noticed Michael driving behind her. She stopped and he parked behind her with the boot of his car facing the boot of her car. He said that he had left his briefcase in the boot of her car. She said that she thought that this was strange, as she said that he wouldn’t have put his briefcase in the Torana boot because he knew that it leaked. One of the sons was in the front seat of the Magna. Michael went to the boot of the car she was driving. She said she could feel the car moving and things being moved around in the boot. She didn’t hear the boot close, but she said that she heard Michael tap the boot and she saw him put his hand up. She said that she drove off wondering why he had been in the boot for so long.

After she had driven a short way, she saw another car flashing its lights at her. The driver of the other car said that her car was on fire. She had never seen the man who stopped her before. She saw from the side that there were flames coming from the boot. The other man was a Mr Ryles. She saw him stamp some rag out. There were containers with fluid in them and rags in the boot of the car. She saw that the petrol cap was missing. She hadn’t seen that before – or the jerry can of petrol which was in the boot of her car. She went with Mr Ryles and rang the police and met them back at the car. She gave the police the rag when they got there.

Ryles was the motor mechanic who came to Mrs Penney’s rescue. He had been a motor mechanic for 25 years. He said that on the date of the incident he was driving along the road, when he saw a Torana with smoke coming from the back. He didn’t notice any other vehicles on the road prior to that, although he should have passed Michael’s car just before that. He saw that the boot of the other car was on fire. He blew his horn at the car and screamed at the woman driver to get out. He said he was flashing his lights and blowing the horn to her. He noticed that there was a rag in the petrol tank on fire with white smoke was coming from it.

He raced around the back of his car and got the extinguisher. He said that he carried the extinguisher in his vehicle as he’d got a girl that got burned in a car. He sprayed the burning rag that was in the boot and in the petrol tank. He said that there was no petrol cap and that the rag was in the filler pipe. He pulled it out and stomped on it. He said that the seal around the boot was on fire. The seal apparently was on the lid of the boot, not on the fixed part of the boot. He sprayed across the back and around the boot and from underneath where the flames were coming out from the boot. He got the keys and opened the boot. He grabbed the jerry can to see if there was anything in it. The spray from the extinguisher got into the boot through the missing boot seal. In the boot was a melted ice cream container. He said there was the smell of methylated spirits, and rags which smelled of petrol. He stomped on the cloth and kicked it to beside the left rear wheel in case it was needed.

A circumstantial case

Constable Carger was the original investigating officer in this case. His opinions led to the charges being laid. Although Constable Carger was presented at the committal hearing as an expert witness, he did not appear in this capacity at the trial.

The Crown’s case against Michael Penney was entirely circumstantial. This means that the special legal rules relating to circumstantial evidence apply. They state that a person can only be convicted on circumstantial evidence where the facts, as alleged by the Crown, lead ineluctably to an inference of guilt. If the facts are capable of an interpretation which is consistent with both guilt and innocence, then the prosecution cannot be successful and should not continue. It is for this reason that once the Crown accepts that the facts as alleged are consistent with an interpretation other than guilt, they should discontinue the prosecution. It is not acceptable for the Crown to say that whilst guilt and innocence are possibilities, they prefer the guilty story and urge the jury to agree with them.

Another way of putting this is to say that unless the Crown can positively assert that interpretations of the facts consistent with innocence can be excluded, then they have not really done their job properly. It would not be satisfactory, for example, for the Crown to say that they had not investigated scenarios consistent with innocence. They only looked at the reasons for guilt and ignored the rest. The reason that we talk about “the Crown” here rather than the police, is that it is the responsibility of the Crown, in the form of the Director of Public Prosecutions to make strategic decisions about whether charges are to be laid. The police may come along with a brief of evidence, but if it is not convincing, in terms of the applicable legal rules, then charges should not be laid. The police cannot insist upon any of the prosecutorial aspects of the case. Their job is to investigate. The DPP’s job is to prosecute. If however, a zealous prosecutor were to lay charges where the rules did not support that decision, then one would expect there to be an early motion before the court to discontinue the case.

Such a motion by the defence can be raised in the early stages. Before any case comes to a trial there are usually a number of hearings before the judge. In criminal cases they are called “directions hearings” and they amount to opportunities to organise the timetable which will lead to the trial. The court will need to decide on issues such as bail and suppression orders about publication of matters connected with the case. A decision will have to be made about the form of the “committal proceedings”. This means that before a case can be set down for trial, there has to be some form of preliminary hearing to determine if there is sufficient evidence to warrant going to the expense and trouble of a full trial. This is the first main opportunity to have the case struck out for lack of evidence, if the prosecutor is proceeding to pursue an inappropriate prosecution. 

It is quite common for committal hearings to be decided on the paper work. Each side states in documentary form what it is they intend to put forward as evidence, and the magistrate has to determine if there is a case which is capable of being proved to the demanding levels required of a criminal prosecution. However, it is possible that either side can request that witnesses be brought forward at that stage so that their evidence can be tested. The oral form of committal proceedings takes longer. However, it gives to the defence a chance to test the prosecution witnesses, out of the presence of the jury. They can get the measure of the witness and assess whether they are likely to be convincing before the jury.

We take the view that Mr Penney’s case should have been struck out at that stage. However, if that application is unsuccessful, and the case is set down for trial, the next main opportunity, apart from any change of heart by the prosecution, is at the end of the close of the prosecution case at the trial. The Crown, by the end of the trial has to establish guilt beyond a reasonable doubt. If they have not achieved that by the close of the prosecution case, then the defence can apply to have the case struck out at that stage. If the judge takes the view that the prosecution have the possibility of establishing guilt beyond a reasonable doubt, then the defence will open and see if they can establish such a doubt to the satisfaction of the jury by the time they close their case.

This means that at the committal, as part of the preliminary proceedings, or at the close of the prosecution case at the trial, a circumstantial case which does not accord with the rules of circumstantial evidence should be discontinued. It is clear that in the case of Michael Penney, this was not done.

The Crown had two main witnesses - Senior Constable Colin Carger, and Dr Paul Kirkbride, a forensic scientist who was now to become the “expert” witness.

The “eye-witness” evidence not obtained

It is inappropriate to find that until just before the committal proceedings, Constable Carger was not aware of who it was that had stopped Mrs Penney on the road and what that person had to say. Bearing in mind that this person (Ryles) was the only independent eye-witness as to what had occurred, one would have thought that his evidence would be crucial. Yet, Constable Carger made it clear that by the time the matter came to the committal hearing, he was unaware of what Mr. Ryles had to say. It was just a day or two before the committal hearing that another constable involved in the matter had become aware that Constable Carger was not aware of Mr Ryles or his statement. Mr Borick was the defence lawyer in this case.

Mr Borick: A couple of days before you gave evidence did you have a conversation with Detective Overmeyer?
Constable Carger: Yes, I recall I did.
Mr Borick: Who rang who?
Constable Carger: I am sorry I don’t recall now who rang who.
Mr Borick: Could you tell us, to the best of your recollection, the gist of that conversation between yourself and Overmeyer?
Constable Carger: I am trying to remember, and I am sorry, I can’t recollect now what it was.

In view of the importance of what he was to recall, this too seems to be inappropriate.

Mr Borick: Did the conversation relate to the statement made by the witness Ryles?
Constable Carger: Yes. Now coming back, sorry, I think it was in relation to receiving copies of the statement.
Mr Borick: That in particular of Mr. Ryles, the eye-witness?
Constable Carger: Yes.
Mr Borick: And did he tell you that you should have received a statement by way of fax?
Constable Carger: That’s correct.
Mr Borick: Did you say to him that you had not received it?
Constable Carger: That’s correct.
Mr Borick: And that’s the fact of the matter, is it, whether he sent it or not you certainly didn’t receive it?
Constable Carger: Yes, that’s right.
Mr Borick: When he learned that fact that you had not received it, what was his reaction?
Constable Carger: He was surprised.
Mr Borick: Could you describe his reaction as being of one of shock?
Constable Carger: I don’t recall exactly what his expression was at the time.
Mr Borick: What was your reaction discovering that there was an important eye-witness statement that you had not seen?
Constable Carger: Yes, I was also surprised and alarmed by it. 
Mr Borick: As a result of that information, did you do anything?
Constable Carger: Yes, I spoke to the prosecutor and was shown the witness Ryles’ statement.
Mr Borick: When was that; before or after you gave evidence?
Constable Carger: Before.
Mr Borick: That was, to best of your recollection, the first time that you had actually seen or heard what Mr. Ryles had to say?
Constable Carger: That’s correct.

No knowledge of what happened to the rags

Constable Carger was also unaware of what Mrs Penney had to say about the rags, or what Constable Kelly (the first policeman on the scene) had to say about them. He was also unaware that Mrs Penney had picked the rags up and put them behind the rear wheel of the car. He was also unaware that she had subsequently picked them up again and handed them to Constable Kelly. He was unaware that it was Constable Kelly who had placed them in the boot of the car. The importance of all of this is that these are crucial elements in piecing together the story of what had happened. If the police officer is attempting to determine what the scene was like at the time of the events, it is clear that he must reconstruct any changes to the scene since the events occurred. Without interviewing the key eye-witness, and without determining the ways in which the witnesses had themselves altered the scene, the officer can hardly draw any sensible inferences about what may have happened. Constable Kelly had placed rags in the car boot – Ryles and Mrs Penney had taken things from it. How would Constable Carger have known what it was like before all that had happened, without asking the people involved?

Flammable liquid thrown in the ditch

It appeared that after the fire had been put out, there were two blackened tins found in the boot of the car. It is said that they were photographed at the scene. Constable Carger said that the photograph showed that there was liquid in one of those cans. When asked what had happened to the liquid, he explained that it was tipped out:

I’d already taken a sample of the liquid, and the small quantity left inside it, we just tipped that out on the side of the road.

When asked whether he had measured how much of the liquid was there before he tipped it out, he said “No”. It has to be said that this was most unfortunate. It would have been crucial to both the defence and the prosecution to be able to precisely reconstruct the scene as it was at the time. The quantity of fluid in the containers would be an essential part of any reconstruction. Where a sequence of events has occurred, one has to question every element of the story for what is called “narrative coherence”. This really means that all elements of the story should fit together. Mrs Penney had said that she had driven along the road, and after being stopped because of the fire, she opened the boot and there were the containers with some liquid in them. Given that she must have stopped very quickly it would be essential to know the quantity and weight of the fluid in the tins. On a reconstruction, it might well turn out, for example, that any open tin of that liquid, with that amount of liquid in it, would be expected to fall over in an emergency braking situation. That would then give rise to questions about whether it had all really happened in that way. If it turned out that the story did not fit together, then the investigator would have to look further at the story being put forward. It is not beyond the bounds of possibility, that a key “witness” in such a situation, could have been involved in a manner not hitherto disclosed.

For example, in the UK, a woman had been found dead in a shop with her throat slit. It appeared that a Somali man (Mr Mattan) had been seen in the street by a person who lived nearby. Mr Mattan was eventually convicted of her murder and hanged. It was some years later that the key witness for the prosecution was found to have attacked his own daughter in very similar circumstances. It was nearly 50 years after the event that Mr Mattan’s conviction was overturned as constituting a miscarriage of justice. The lesson to be learned from this is that any investigator has to preserve all of the evidence and to investigate everything thoroughly, before determining who might be a witness and who might be a suspect.

The “match” (the murder weapon) was thrown away too

However, the story of the disappearing evidence did not stop there. Constable Carger was only part of the way through his description of the various ways in which he had disposed of the evidence. The sequence of events being put forward by the prosecution was that Michael Penney had gone to the boot of the car, and knowing that there were flammable liquids and vapours in the boot, he had thrown a lighted match into the boot before he made off. Constable Carger had said that he had found a broken and partially burned match in the boot of the car. It was clear that this was in fact the “murder weapon”. He was then asked to look at the photograph of the two pieces of the match that he had spoken about. Mr Borick then said:  

Mr Borick: What’s happened to the two pieces of match?
Constable Carger: They have broken.
Mr Borick: I know. What’s happened to them since that photograph was taken?
Constable Carger: They were destroyed.
Mr Borick: By whom?
Constable Carger: Myself.
Mr Borick: When?
Constable Carger: After the examination.
Mr Borick: That same day?
Constable Carger: Yes.
Mr Borick: How did you destroy them?
Constable Carger: I threw them away.
Mr Borick: Did it not occur to you that they could be important exhibits at any subsequent trial?
Constable Carger: I photographed them, and the photographs show the match, and I considered that was sufficient to bring to court.
Mr Borick: Did it occur to you that it might be important to have someone with a knowledge of match heads, chemistry, to have an opportunity to have examined that match?
Constable Carger: No.

It is surprising to think that “attempted murder” charges could be laid where the investigator is busy throwing away the evidence before the defence has any chance to examine it. If the police had searched for boxes of matches, they may have found that the match in fact came from a box in the possession of someone other than Michael Penney. Indeed, it might even have affirmed that they were from the same batch as other matches in Mr Penny’s possession.

Photos not printed by the time of the trial

Even at the trial, it appears that Constable Carger was not fully prepared. He was asked whether the photographs which had been produced in court were the only photographs that were taken at the scene.

Constable Carger: No.
Mr Borick: Where are the others?
Constable Carger: I haven’t had them printed. They are still in their negative form.

How could the investigator possibly turn up to the trial without having developed all of the photographs, and without having made them available to the defence?

Didn’t know how long rags had been there

It is quite clear from what we have seen that the rags in the boot were to be of considerable importance to the scenario. In fact, they were produced in court, still dripping wet with petrol. Mr Borick asked him:

Mr Borick: On or about 30 October, [the date of the incident] after you had found the rags in the car, in the boot, you had collected them, did you make any inquiry from anyone to ascertain how long they had been in the boot prior to the fire on 30 October?
Constable Carger: No, I don’t recall making that inquiry.
Mr Borick: Do you agree that it would have an important piece of information for an investigator to know how long those rags had been in the boot prior to the fire on 30 October?
Constable Carger: Yes, in that condition, yes.
Mr Borick: And why would it be important to have that information if you could get it?
Constable Carger: Because it would show how long those particular petrol soaked rags had been in that boot compartment to allow for evaporation of the petrol vapour and spread of the odour through the vehicle.

Indeed, given the fact that the rags produced in court were still dripping wet with petrol, one would have to infer that they could not have been in the boot for very long because otherwise the petrol would have evaporated. Indeed, as Mrs Penney acknowledged that Mr Penney had been moving things around in the boot, it would be very surprising if he had not arrived at school smelling of petrol, if the boot had been in that state when he had been there.

No proper examination of the boot

There were two holes in the metal bulkhead at the back of the boot through which the felt backing of the rear seats could be seen. Constable Carger said that on his visual inspection of the felt behind those two holes, he saw smoke staining to the surface of it. He was asked if he had conducted any other examination of the felt and he said that he had not.

The carpet in the boot had been covered with white powder from the extinguisher. Mr Borick asked the constable if he had inspected the carpet to see whether there was soot staining underneath the white powder. He said that he did not. However, he did say that it could have been done – just that he did not think to do it. He also said that he had never investigated a fire in a boot of a car before.

He then went on to say that when he examined the vehicle on 30 October, he did not find any other holes in the bodywork. It was obviously important to calculations regarding evaporation and ventilation of a fire, to determine how much oxygen was available. Subsequently, at the committal hearing, Constable Carger was shown the vehicle again. At that time, he was shown other holes which were in the lower area of the left rear mudguard.

Mr Borick: And you completely missed those holes, hadn’t you?
Constable Carger: I didn’t see those holes. That’s correct.
Mr Borick: And you agree that those holes were significant in terms of the movement of air oxygen into and out of the boot?
Constable Carger: It is relevant, yes.
Mr Borick: Important weren’t they?
Constable Carger: Relevant, yes.
Mr Borick: Do you agree that they were, in terms of the movement of oxygen or air in or out of the boot, they were significant?
Constable Carger: They were significant, yes.
Mr Borick: Totally missed by you in examination?
Constable Carger: Yes, I missed them.

Boot light switch – hidden under sticker on photo

The line of questioning then moved on to the wiring in the boot of the car, to see if that had been examined properly. This questioning was aimed at ascertaining possible ignition sources, such as from a spark in the wiring. When he was asked if he had examined the whole of the wiring in and around the boot of this vehicle, Constable Carger said that he had “conducted an examination of the visible wiring to the boot compartment, yes.”

Mr Borick: Was there other wiring in the boot of the vehicle which was not visible because it was behind, for example, the bulkhead?
Constable Carger: Yes.
Mr Borick: Did you examine the wiring which in that sense was not visible?
Constable Carger: No, I did not.
Mr Borick: Did you examine the fuses?
Constable Carger: No.
Mr Borick: Did you look for a boot light switch in this vehicle when you were conducting your examination on 30 October?
Constable Carger: No, I did not.
Mr Borick: Did you in fact see a boot light switch?
Constable Carger: No.
Mr Borick: Can you tell us now as a result of information you have gained at other times, whether or not there is a boot light switch there?
Constable Carger: Yes, there was.
Mr Borick: And when did you first see the boot light switch?
Constable Carger: When I uncovered it underneath a number that I placed on one of my photographs.

The constable claimed that he had put one of his numbering stickers over the boot light switch on the photograph, and so had not noticed the switch there. One might have thought that he would have come across it in his examination of the car, rather than his examination of the photograph. Constable Carger and other witnesses said that the switch was made of plates which came together to complete the circuit. Each time the plates opened and closed they created a spark. It was accepted that such a spark could have caused an ignition as the boot was opened or shut, if the vapours were at the appropriate levels.

Mr Borick continued:

Mr Borick: Did you appreciate that there was a Torana LC manual in the glove box of this particular vehicle?
Constable Carger: I remember seeing it there, yes.
Mr Borick: Did you look at it at all to check what switches were in the vehicle?
Constable Carger: No.
Mr Borick: Did you look at it at all?
Constable Carger: No.

Mr Borick then went on to question Constable Carger about the boot seal.

Mr Borick: You will see the offside or driver’s side that there is a bit of a gap between the boot and the rim?
Constable Carger: Yes.
Mr Borick: On the other side, the near side, it is pretty well flat down?
Constable Carger: Yes, it is flush.
Mr Borick: Did you happen to notice that difference at the time when you examined the vehicle?
Constable Carger: No.

It then appears that there was a large plastic bag in the boot of the car. Mr Borick asked the Constable if he knew what happened to it or what was in it. He replied that, “I don’t recall there being anything in it. I had no reason to collect it”. Given the size of the bag, there was clearly “something in it”. He was then shown a photograph with a black plastic bag in it. He said that he had no idea what it was doing there or what was in it either.

The constable then went on to explain that he had examined the muffler of the car. He said that the muffler was in good condition, although it had two small holes underneath. The holes were apparently about 5mm in diameter. Constable Carger and other witnesses accepted that it might have been possible for a spark from the muffler to have ignited vapours emanating from the boot. Not surprisingly, Mr Borick went on to inquire of the Constable what condition a muffler would have to be in for him to regard it as being in bad condition. He said that it would have to be “not working” to fall into that category.

Mr Borick asked Constable Carger if a spark from the boot switch could have ignited the vapours. Whilst the constable agreed that it might have been a possibility, he said that he did not accept that it was a reasonable possibility. If he had done so, of course, then it would have completely undermined the prosecution case. When asked why it was that he did not regard it as a reasonable possibility, the Constable answered “because I had not examined it”. This is where Mr Borick should have uttered those immortal words, “I rest my case”.

An inappropriate re-enactment

Dr Kirkbride said that he was a forensic scientist who had assisted Constable Carger in conducting certain “reconstructions” of the scenario. He said that he participated in experiments which were shown to the court on video. The first experiment was the lighting by a match of a rag placed in the fuel filler pipe of a Torana wreck. Constable Carger had obtained a sum of money from his department to go and buy a wreck of a car which was said to be “similar” to the one involved in the incident. There were, of course, a few differences between “the wreck” and the original car. The wreck had no wheels, no windows or windscreens, and many other parts of the car were missing. To simulate the original incident, the wreck was put onto a trailer and towed up and down the road with various fires in the boot. Constable Carger admitted that with the wreck being towed behind another car, no windows, and the back seat not fitting properly, the aerodynamics around the boot might have been a little different in the reconstruction – but then he was not an expert in aerodynamics.

Dr Kirkbride acknowledged that the circumstances were not ideal in terms of trying to re-create the circumstances of what occurred in this case. He said that the wreck, for example, did not have any indicators in place, so there were some large holes on that part of the body, which were not present on the original vehicle. Dr Kirkbride said that he tried to fill those up as much as possible, but that “one would not achieve a perfect seal like an indicator would do”. In addition, the rear seat didn’t fit as a normal seat would, therefore, he agreed, more air might get through that opening. Apparently the experiment was “far from ideal”.

It was clear that a lot depended upon the seal of the boot. However, Dr Kirkbride said that he had not even examined the seal of the Torana which was burned on 30 October. However, he did agree that during the investigation it would be important to know how airtight the boot was. He accepted that if on the body of the car there were quite large holes which would allow air into the boot, then that would be an important factor to take into account. Quite how one was to take it into account he did not explain.

Dr Kirkbride accepted that as he had never seen the original seal on the boot of the Torana which was burned, it would be hard to make a comparison with the seal on the model used in the “experiment”.

Mr Borick: In fact basically impossible?
Dr Kirkbride: Yes.

The expert knew nothing about the car’s wiring

On the topic of the wiring, Dr Kirkbride agreed that it would have been important to have examined all the wiring in the boot which could be a possible source of ignition. He also agreed that it would be very important to examine the fuses as they could be an indication that something had blown in the car. Unfortunately, in addition to the fact that he had not inspected the boot of this particular Torana, he said that he did not have any basic knowledge of what the wiring system would be like in the boot of such a vehicle. As he said in court, “No, my electrical expertise are pretty limited”. He agreed that an auto electrician, or someone who has had a lot of experience in that field, would be needed to give some assistance on that.

Proper procedures not followed

He said that in the world of forensic science generally, one of the most important things for the scientist is that all relevant data, information and exhibits are properly collected and stored before going for examination. This is because, he said, that one has to exclude the possibility of contamination - material from one item getting on to another item. It is also important, he said, for the chain of custody, so that one knows from photographs for example, or from markings, where those items were taken from.

He not unnaturally agreed that it would also be very important to keep all relevant exhibits. He agreed that it would not be good practice to throw away the broken match head, which was found in a tin of methylated spirits, “if it’s going to have a bearing on the proceedings”. As he said, “I guess it’s a fairly simple thing to keep, yes”.

He also said that if there were remnants of a rag found in the petrol pipe or the fuel pipe of this vehicle, but it was pretty badly burned and disintegrated, a good collector could still get together those pieces or the fragments. Unfortunately, Constable Carger said that when he touched the fragments of the burned rags on the outside of the boot “they disintegrated into nothing”. We know of course, that the laws of physics do not allow for materials to disintegrate “into nothing”.

Dr Kirkbride said that it was well understood that when cellulose fabrics are burned they become very fragile. They look intact until one attempts to touch them or collect them when they can fall apart very readily. He agreed that an investigator would be aware of that and do his best to collect it.

Dr Kirkbride said that the storage of exhibits is important so that, for example, they don’t contaminate each other. He agreed that if two rags come from one particular part of the vehicle, and they were then placed in the same container as a rag from another part of the vehicle, then there would be a possibility of contamination between the two rags if there was petrol on one of them but not on the other. Petrol could obviously be transferred from one rag to the other.

He said that it was fairly difficult to say whether it was an explosion or a rolling fire, in this case. He said that at least it was clear that some things had burned inside the boot, and there was something on the outside of the boot that has been on fire at some time. However, he said, “the exact course of events, for example, whether it was started by an explosion, or whether it was just a flame, I think is difficult to come to”.

Mr Borick: Certainly one real possibility that exists is that petrol vapour in the car, in the boot, could have been set on fire by a spark from the electrical switch, the rear boot light switch?
Dr Kirkbride: I think that is a possibility, yes.

The rules of circumstantial evidence ignored

We should point out that Dr Kirkbride was the expert witness for the prosecution. He readily accepts that a naturally occurring set of events could well explain the sequence of events, without the need for any human intervention. What he has said here means that because this is a circumstantial case, for the reasons which we explained earlier, the case should have been thrown out at this stage.

Mr Borick: We don’t know, do we, how long any flammable liquids had been present in the boot compartment?
Dr Kirkbride: No, we don’t.
Mr Borick: That would be an important piece of information to have to start to draw any conclusions about this fire?
Dr Kirkbride: I believe so.

The judge appeared to be of the view that unless the defence could rule out human agency, then the case should proceed. This seems to have put the cart before the horse. The proper approach should be that unless the prosecution can rule out naturally occurring factors – that is without human agency – then the case should not proceed. We remember, of course, that up until the close of the prosecution case, it is not for the defence to prove anything. At that point, with a circumstantial case, as this was, the prosecution should have established that the facts on which it based its case were consistent with the guilt of Mr Penney – and not with anything else. Now we have already seen how even the crown witnesses were willing to agree that the fire could well have been an accident. In those circumstances, it was, in our opinion, inappropriate for the judge to allow the case to proceed beyond the close of the Crown case.

In this particular case, it appears that the original investigator had failed to examine crucial aspects of the crime scene, and the expert witness had not examined them at all. Yet, by getting together to tow a shell of a similar car up and down the road, they felt that they could provide the court with useful information. It seems hard to accept that such antics could possibly lead to a conviction “beyond a reasonable doubt”.

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