A “Big Unsafe Verdict Win” for Felicity Gerry QC

The Court of Appeal of Victoria decision in Goodfellow v The Queen [2019] VCC 1600 was described by Professor Jeremy Gans at Melbourne Law School as a “big unsafe verdict win” for Felicity Gerry QC. The indictment had alleged that in the early hours of 21 January 2017, the applicant, in the company of three other men, committed an aggravated home invasion. The applicant pleaded not guilty to the charges and was tried. The central issue in the applicant’s trial was identity. The prosecution made a circumstantial case against him based largely on three pieces of evidence: his palm print on the outside rear fixed window of the Kluger; an empty medication bottle found in the Kluger that had been prescribed to him and dispensed some days earlier; and the existence of the applicant’s DNA, in a mixed combination involving at least two contributors, on a grey hoodie found close to the crime scene. The witness was unable to identify the man in the grey hoodie when shown an identification board that included a photograph of the applicant.

The Court of Appeal (Justices NIALL, EMERTON and SIFRIS JJA) gave judgment on 16 September 2021. While there were six separate proposed grounds of appeal, Ground 6 was said to capture the essence of the applicant’s case: that, on the basis of the evidence and in light of the various alleged failures by the trial judge, it was not reasonably open for the jury to find the applicant guilty. Felicity Gerry QC is quoted in the decision as explaining:

In relation to the grounds, again as you know, there are six grounds which can be summarised as a misdirection on identification evidence and on DNA. The reference to Mr Goodfellow rather than the man in the grey hoodie that was not corrected, multiple failures to discharge the jury including after a significantly poor prosecution speech and then what are described as aggregate errors with Ground 6 perhaps the catchall of being unsafe and unsatisfactory but our submissions are as follows. On the substantive issues, it is our submission that it was not open to the jury to be satisfied of guilt beyond reasonable doubt. Put another way, there was a reasonable or realistic possibility that it was someone else in the grey hoodie engaging in that home invasion.

The Court of Appeal held that ground 6 was made out, it was unnecessary to consider the other grounds stating, "The jury’s understanding of the ‘common course of human affairs’ does not allow it to fill holes in the evidence by telling itself that it would be too much of a coincidence if the applicant were not involved.”

Felicity led Megan Casey from Foley’s List, upping the statistics on women appearing in the Court of Appeal in Victoria.