Chapter Thirteen - No match

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Michael Penney 1996

In 1996, Michael Penney was convicted of the attempted murder of his wife. [1] It was said that he had set fire to the boot of her car just before she drove away in it. The case against him was entirely circumstantial, based on what turned out to be a less than adequate examination of the scene by the police and a less than adequate investigation into the events by the investigating officer and a forensic scientist. As in the Keogh case, evidence was destroyed before the defence had an opportunity to examine it. The case provides another example of the legal issues involved in cases based on circumstantial evidence and in the decision to prosecute.

Attempted murder

Julie married Michael Penney in January 1989. They were both schoolteachers. They had two children and in 1993 they took out insurance policies – $250,000 on her life and $150,000 on his. During 1994 they had some problems with their marriage and went to a marriage counsellor in July that year. Mr Penney left home twice during the year: first for six weeks, and then for seventeen weeks but returned home in late September 1994. The Penney’s had two cars: Julie drove a Magna and Michael drove a Torana. Julie Penney said that she hardly ever used the Torana because the boot leaked because the seal had become damaged, but she had driven it about a week before the incident which gave rise to the charge of attempted murder. She said that there was a petrol cap on the car then. The petrol filler on this model car is in the centre of the back, just below the boot lid.

It was said that while Julie Penny’s car was parked by the side of the road, Michael Penney threw a lighted match into a tin of methylated spirits which was in the boot and this started a fire. Their five year old son said that his dad had bought a petrol can about two weeks before the incident and Mr Penney agreed that this was so. The can was found, full of petrol, in the boot of the Torana after the incident.

Mrs Penney said that on the morning of the incident, she was going to take the Magna to work but Mr Penney said that he wanted to take it because the indicators on it weren’t working properly. She said her husband would have gone outside and she thought he would have changed some of the things around with the cars, making sure that he had his briefcase and papers for school in his car. On the way to work, they both went to an automatic teller to get some cash, then went their different ways.

After a while, Mrs Penney noticed her husband driving behind her. She stopped and he parked behind her, with the boot of the Magna facing the boot of her car. He said that he had left his briefcase in the Torana’s boot. She said she thought that it was strange, as he wouldn’t have put his briefcase in the Torana because he knew that the boot leaked. She said that while he was at the boot she could feel the car moving and things being moved around in the boot. She didn’t hear the boot close, but she heard him tap the boot and saw him put his hand up. She said that she drove off wondering why he had been at the boot for so long.

After she had driven a short way, she saw a driver flashing his lights at her and sounding the horn. The man had seen smoke and fire coming from the boot of her car, and a rag in the fuel filler pipe was burning, with white smoke coming from it. Both cars stopped and the man yelled at her that her car was on fire. She leapt from the car and she could then see that there were flames coming from the boot.

The man sprayed the burning rag with a fire extinguisher. One end of the rag was in the boot and the other in the filler pipe of the petrol tank, which, he noticed, had no petrol cap. He pulled the rag out, stamped on it and kicked it to beside the rear wheel. He sprayed the extinguisher across the back and around the boot as he said the seal of the boot lid was alight, and he also sprayed through a gap (where the seal should have been) underneath the boot lid where the flames were coming out. He got the keys and opened the boot.

Mrs Penney said she saw that there were containers with fluid in them and rags in the boot of the car, and that the petrol cap was missing. She hadn’t noticed the missing cap before, or the can of petrol. The man grabbed the can to see if there was anything in it. The boot also contained a partially melted plastic ice cream container with some rags in it. The man said there was the smell of methylated spirits, and that the rags smelled of petrol. 

Mrs Penney and the man went and rang the police, and meet them back at the car.

A circumstantial case

The prosecution’s case against Mr Penney was entirely circumstantial. This means that the special legal rules relating to circumstantial evidence apply. These rules state that a person can only be convicted on circumstantial evidence where the facts, as alleged by the prosecution, lead inescapably to an inference of guilt. If there is a rational hypothesis that is inconsistent with the guilt of the accused, then the evidence should not be admitted, as was pointed out in the earlier discussions of the judgments in the Van Beelen and Perry cases. Once the prosecution 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 prosecution to say that while guilt and innocence are possibilities, they prefer the guilty story and then urge the jury to agree with them.

Another way of putting this is to say that unless the prosecution can positively assert that an interpretation 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 prosecution to say that they had not investigated theories consistent with innocence, that is, that they had only looked at the reasons for guilt and ignored the rest.

It is the responsibility of the prosecution, in the form of the Director of Public Prosecutions, to make strategic decisions about whether charges are to be laid. The police may present 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 a prosecution if it is not supported by the DPP. The job of the police is to investigate. The DPP’s job is to prosecute. If, however, an over zealous prosecutor were to lay charges where the rules did not support that decision, then a motion from the defence to discontinue the case would be expected. 

The first opportunity to do this would be at the committal hearing, but if a motion to discontinue at that stage was unsuccessful, and the case was set down for trial, the next main opportunity would be at the close of the prosecution case at the trial, that is, after they have brought forward all their witness, and before the defence brings their witnesses. If the prosecution has not established guilt beyond reasonable doubt by this stage, then the defence can apply to have the case struck out. If the judge disagrees and takes the view that the prosecution has the possibility of establishing guilt beyond reasonable doubt, then the defence will open their case and see if, through the witnesses they bring forward, they can establish such doubt to the satisfaction of the jury by the time they complete it.

In a properly operating legal system, a circumstantial case that does not accord with the rules of circumstantial evidence really should not be put to a jury decision. We take the view that Mr Penney’s case should have been struck out at the committal stage. This did not happen although such an application was made. A further application was made to have it struck out at the end of the prosecution case but that too was not successful.

The committal proceedings

At the committal proceedings, the police investigating officer revealed that he did not know that there was an eye-witness to the fire or that the witness had made a statement. This man was the only independent eye-witness at the scene, and one would have thought that his evidence would be crucial. In fact, it was another constable involved in the case who, just a day or two before the hearing, realised the officer didn’t know of the eye-witness or his statement and told him about it. When questioned by defence counsel, Kevin Borick, QC, as to what his reaction was to discovering that there was an important eye-witness statement that he had not seen, the investigating officer said he was ‘surprised and alarmed’ by it. [2] Asked what he did as a result of finding out about it, the officer replied that he spoke to the prosecutor and was shown a copy of the witness statement. He confirmed that this was the first time that he had seen what the eye-witness had to say.

The officer was also unaware at the time of the committal proceedings of what Julie Penney had had to say about the rags, or what the first policeman on the scene had had to say about them. He was also unaware that Mrs Penney or her helper had picked up the rags and put them behind the rear wheel of the car. He was unaware that she had subsequently picked them up again and handed them to the first policeman. He was unaware that it was this policeman who had placed them in the boot of the car. [3] The importance of all of this is that these are crucial elements in piecing together the story of what had happened (the chain-of-evidence). If the investigating 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 these 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 initially. The man and Mrs Penney had taken things from the boot and the first policeman had placed rags in it . Without asking the people who were there, it would be impossible to know what the scene was like at the time of the incident.

Evidence discarded

It appeared that after the fire had been put out, two blackened tin cans, [4] one inside the other were found in the boot. The cans were photographed at the scene. The investigating officer said that the photograph showed that there was liquid in one of these 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’.

The officer hadn’t measured how much liquid there was before he tipped it out. Knowledge of the original volume would have been crucial to both the defence and the prosecution to be able to precisely reconstruct the scene. To be able to reconstruct a scene effectively, an investigator has to preserve all the evidence and to investigate everything thoroughly. Mr Penney said he did not place the can with the methylated spirits in the boot of the car. He said it was possible that one of the children may have put the cans there without his noticing it while they were tidying the garage. He also said he had been cleaning his large mower in the garage during the previous few days and had used petrol and some rags to do this.

The trial

Michael Penney was tried in the Supreme Court before a judge and jury. Mr Paul Rofe QC, Director of Public Prosecutions, prosecuted and Mr Kevin Borick QC appeared for Penney.

At the committal hearing, the police officer had been presented as an expert witness, giving opinion evidence, but he did not appear in this capacity at the trial. He did give evidence, but the role of expert witness was taken by the forensic scientist.

The ‘murder weapon’ also discarded

The sequence of events 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, had thrown a lighted match into the boot before he made off. The investigating officer said that he had found a broken match in the liquid in the cans in the boot. However, the photograph taken to show the match in the cans in the boot was taken at such an angle that the match is not visible. It was found that only part of the red head of the match had been burned. However, it was clear that the match was considered to be the ‘murder weapon’. The officer was then asked to look at the photograph of the pieces of the match that he had spoken about. For the photograph they had been placed on the side of the blackened can which had been laid on its side for the purpose of the photograph.

Defence counsel asked the officer in cross-examination what had happened to the pieces of match since the photograph was taken. The police officer said that after he had examined them on the day he ‘threw them away’.

“Counsel: Did it not occur to you that they could be important exhibits at any subsequent trial?
Police officer:  I photographed them, and the photographs show the match, and I considered that was sufficient to bring to court.
Counsel: Did it occur to you that it might be important to have someone with a knowledge of match heads, [and] chemistry, to have an opportunity to have examined that match?
Police officer:  No.” [5]

A charge of attempted murder, or anything else, should not have been laid nor prosecuted in such a situation as this in which the investigator destroys the evidence before the defence, or anyone else, has any chance to examine it.

Unprinted film

Even at the trial, which was five months after the committal hearing, it appears that the investigating officer was not fully prepared. He was asked whether the photographs presented in court were the only photographs that were taken at the scene.

“Police officer: No.
Counsel: Where are the others?
Police officer:  I haven’t had them printed. They are still in their negative form.” [6]

So not only had evidence been destroyed before the defence could examine it, but photographs had not been developed and made available to the defence. The following points made by the defence at the trial show just how important photographs can be.

How long had the rags been in the boot?

The rags in the boot were to be of considerable importance to the prosecution case. They were produced in court, still dripping wet with petrol when they were taken from the container in which they had been kept in the meantime. Defence counsel asked the officer if he had questioned anyone as to how long they had been in the boot before the fire. He said he did not recall doing so and agreed that it would be important information to know. 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, as the rags were still wet with petrol when produced in court, it would seem unlikely they could have been in the boot for very long, otherwise the petrol would have evaporated. Mrs Penney said that her husband had been moving things around in the boot just before the fire so, if the rags had been wet when he had been at the boot, it would be surprising if he hadn’t arrived at school smelling of petrol. We also know the rags had been removed from the boot by one of the police officers, and then placed back there by another officer. The defence claimed that Mr Penney’s clothes were not properly tested, nor was his briefcase, which was said to have been in the boot.

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. The officer said that on his visual inspection, he saw smoke staining to the surface of the felt behind those two holes. 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 officer 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 the boot of a car before.

The officer then went on to say that when he examined the vehicle on 30 October he did not find any other holes in the bodywork. When calculating the possible rate of evaporation from petrol on the rags, or of the methylated spirits, and the build up fumes, it is important to know all the facts about the ventilation of the boot. To calculate the progress of a fire, it would be important to know the amount of oxygen available to feed it. Earlier, at the committal hearing, when the officer was shown the photos of the vehicle, he had admitted that he had ‘completely missed’ other holes which were in the lower area of the left rear mudguard and which went through to the boot. [7]

The wiring and the boot light switch

The line of questioning then moved to the wiring in the boot to see if that had been examined properly. This questioning was aimed at ascertaining possible ignition sources, such as from a fault in the wiring. When he was asked in cross-examination if he had examined the whole of the wiring in and around the boot, the police officer said that he had ‘conducted an examination of the visible wiring to the boot compartment, yes’ However he said that he had not examined any wiring not visible (such as that which went behind the bulkhead), nor had he examined the fuses.

“Counsel: Did you look for a boot light switch in this vehicle when you were conducting your examination on 30 October?
Police officer: No, I did not.
Counsel: Did you in fact see a boot light switch?
Police officer: No.
Counsel: 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?
Police officer: Yes, there was.
Counsel: And when did you first see the boot light switch?

Police officer: When I uncovered it underneath a number [on a sticker] that I placed on one of my photographs.” [8]

It seems that the officer failed to see the boot light switch when he examined the car, then later, when the photographs were developed and he was numbering them, he accidentally covered the switch, which appeared in the photograph, with one of his numbering stickers. Because of this he failed to notice the switch in the photographs for some time.

The officer and other witnesses said that the switch was made of metal plates which came together to complete the circuit. Each time the plates opened and closed they created a spark.

Interestingly, it would appear that a key point about this issue, which had been examined in some detail at the committal proceeding, was not pressed so quite so far during the trial. Defence counsel had put it to the police officer in the committal that the boot light switch might have been a possible cause of the ignition in the boot. He had agreed that this might have been so. Indeed, he said that it could have been a probable cause of the ignition. Some of the answers repay careful attention:

"Counsel: Your observations were somewhat flawed, weren’t they; I give you two examples why: one is that you didn’t see the hole, and two, you didn’t see the switch.
Police officer: I’ll agree to those two areas, yes.
Counsel: If there was a light globe there, it would have been vital to look at the switch, do you agree?
Police Officer: Yes.
Counsel: Why would it be vital?
Police officer: To eliminate that as a cause of the ignition.
Counsel: So you can’t eliminate that as a cause of the ignition, can you; you didn’t inspect the switch and you don’t know if there is a light globe there or not?
Police officer: No, there wasn’t a light globe there because I didn’t see it and I cannot eliminate that as a probable cause.
LAST ANSWER READ [BACK] BY REPORTER
Counsel: You can’t eliminate what as a probable or possible cause?
Police Officer: The light, the rear boot compartment light as an ignition source. [9]

At the trial the officer merely stated that he was not qualified to discuss whether or not the switch would give rise to a spark.

The re-enactment

The forensic scientist giving evidence at the trial said that he and the investigating officer had conducted certain experiments to reconstruct the scene, and these 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, said to be ‘similar’ to the Torana in the incident. However, there were some important differences:like the Penney’s car, it had no wheels, no windows or windscreen, and many other parts 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. The police officer admitted that with the wreck being towed behind another car, with it having no windows, and the back seat not fitting properly, the aerodynamics around the boot might have been different in the reconstruction. The contrast to the re-enactment conducted by the defence in the Keogh case, in which they used the original bath in its original location, could not be more marked.

The scientist acknowledged in answer to questions by the prosecutor that the circumstances were not ideal in terms of trying to re-create what had supposedly 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 not present on the original vehicle. He 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 and therefore, he agreed, more air might get through that opening.

No examination of the car or wiring

Under cross-examination by defence counsel, the forensic scientist agreed that during the investigation it would be important to know how airtight the boot was, but admitted that he had not even examined the seal of the boot of the Penney’s Torana. He accepted that if there were quite large holes in the body of the car which allowed air into the boot, then that would be an important factor to take into account, but he did not explain in what way.

He also accepted that as he had never seen the original burned seal on the Torana’s boot, it would be ‘basically impossible’ to make a comparison with the seal on the model used in the ‘experiment’.

On the topic of the wiring, the scientist agreed that as a matter of proper forensic procedure, it would have been important to have examined all the wiring in the boot that could be a possible source of ignition. However, he had not examined it himself. He also agreed that it would be very important to examine the fuses as they could indicate that something was wrong with the car. 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 – his electrical expertise, he said, was ‘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

The forensic scientist 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 they go for examination. This is, he said, because 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 to be recorded so that one knows, from photographs for example or from markings, where those items were taken from.

He also agreed that it is very important to keep all relevant items and that it is not good practice to throw away a broken match 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’. [10]

He said in this case that it was fairly difficult to say whether it was an explosion or a rolling fire. He said that it was clear that at least some things had burned inside the boot, and there was something on the outside of the boot that had been on fire at some stage. 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’.

“Counsel: 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?
Scientist: I think that is a possibility, yes.”

The rules of circumstantial evidence ignored

The forensic scientist was the expert witness for the prosecution. He readily accepted that a naturally occurring set of events (a spark from a switch) could well explain the sequence of events, and these events could have occurred without any human intervention. What he has said here means that, because this is a circumstantial case, subject to the rules explained earlier in the chapter, the case should have been ended at this point.

The judge, however, appeared to be of the view that unless the defence could rule out human agency, then the case should proceed. This seems to 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. 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. Yet the prosecution witnesses agreed 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 prosecution case.

In this particular case, the original investigator had failed to examine crucial aspects of the scene, and the expert witness had not examined them at all. Yet, by getting together to tow a shell of a car up and down the road, they felt that they could provide the court with useful information which could lead to a conviction ‘beyond reasonable doubt’.

Michael Penney convicted

Mr Penney was convicted by a majority verdict and sentenced to ten years imprisonment.

He appealed to the Court of Criminal Appeal of South Australia, which included the Chief Justice. The appeal was dismissed. [12] His appeal to the High Court was refused. [13] This would appear to be one of those examples, such as those we discuss in Chapter 16, where a problem in the trial process was not picked up as part of the appellate process.

Although Michael Penney was sentenced to ten years imprisonment, as far as he is concerned it might as well have been for life – as a convicted attempted murderer he is not allowed to know the whereabouts of his children.

Endnotes

1. The details of Mr Penney’s case have been taken from the committal proceedings transcript; [details?]the trial transcript, The Queen v. Michael Ross Penney SCCRM No 194 of 1996; the Court of Criminal Appeal judgment [1997] South Australian Supreme Court 6071 (21 March 1997); and the report of Penney v. The Queen [1998] High Court of Australia 51 (13 August 1998).

2. Trial transcript, p. 240.

3. Trial transcript, p. 182.

4. Trial transcript, p. 154

5. Trial transcript, p. 192.

6. Trial transcript, p. 197.

7. Trial transcript, p. 205–6.

8. Trial transcript, p. 207.

9. Committal proceedings transcript, p. 82.

10. Trial transcript, p. 289.

11. Trial transcript, p. 293.

12. [1997] South Australian Supreme Court 6071 (21 March 1997).

13. Penney v. The Queen [1998] High Court of Australia 51 (13 August 1998).

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