Date of Hearing: 11 September 2019 Date of Order: 11 September 2019 Date of Publication of Reasons: 6 November 2019
B20/2019
ORDER
1.Appeal allowed.
2.Set aside the order made by the Court of Appeal of the Supreme Court of Queensland on 21 July 2017 and in its place order that:
(a)the appeal be allowed;
(b)the appellant's conviction for murder be quashed; and
(c)a verdict of acquittal be entered.
On appeal from the Supreme Court of Queensland
Representation
S C Holt QC with K B W Gover for the appellant (instructed by Anderson Fredericks Turner)
M R Byrne QC with C W Wallis for the respondent (instructed by Director of Public Prosecutions (Qld))
Notice: This copy of the Court's Reasons for Judgment is subject to formal revision prior to publication in the Commonwealth Law Reports.
CATCHWORDS
Fennell v The Queen
Criminal law – Murder – Appeal – Appeal against conviction – Where appellant convicted by jury – Where Crown case based entirely on circumstantial evidence – Where circumstantial evidence related to opportunity and motive and miscellany of other inculpatory matters – Where evidence of opportunity and motive extremely weak – Where evidence connecting accused to alleged murder weapon based on glaringly improbable identification evidence – Whether verdict unreasonable or cannot be supported having regard to evidence.
Words and phrases – "basis for an inference", "circumstantial case", "contamination of recollection", "credibility and reliability", "glaringly improbable", "identification evidence", "identification of object", "motive", "murder weapon", "opportunity", "unreasonable verdict".
Criminal Code (Qld), s 668E(1).
KIEFEL CJ, KEANE, NETTLE, GORDON AND EDELMAN JJ.
Introduction
On either Monday 12 November 2012 or Tuesday 13 November 2012, Mrs Liselotte Watson was murdered in her home on Macleay Island, a small community of around 2,500 people in Moreton Bay, Queensland. At the scene of the murder, and in Mrs Watson's house generally, most of the drawers had been opened, the contents of cupboards were dishevelled, bags had been pulled out, and a large suitcase was left open. Numerous witnesses gave evidence of the common knowledge that Mrs Watson kept large sums of money in her house but only $290 was located.
Mr Fennell was tried and convicted for her murder. An appeal to the Court of Appeal of the Supreme Court of Queensland was dismissed. In this Court, Mr Fennell's only ground of appeal was that the Court of Appeal erred by failing to conclude that the verdict was unreasonable or cannot be supported having regard to the evidence[1], in part because it made significant errors of fact.
[1]Criminal Code (Qld), s 668E(1).
Mr Fennell's house was searched and his bank accounts were examined. No excess cash was found nor were any excess deposits identified. There was no evidence directly linking Mr Fennell to the crime scene. Neither his DNA nor his fingerprints were found…
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
Fennell v The Queen [2019] HCA 37
Case
[2019] HCA 37
Decision Date
CaseChat Overview and Summary
The High Court of Australia heard an appeal by Mr Fennell against his conviction for murder. The Crown's case against Mr Fennell was based entirely on circumstantial evidence, which included allegations of opportunity and motive, as well as other inculpatory matters. The evidence of opportunity and motive was described as extremely weak, and the evidence connecting Mr Fennell to the alleged murder weapon was based on identification evidence considered glaringly improbable.
The central legal issue before the High Court was whether the jury's verdict of guilty was unreasonable or could not be supported having regard to the evidence presented. This required the Court to assess the entirety of the circumstantial case, rather than considering individual pieces of evidence in isolation. The Court was also required to consider the inherent fallibility of human memory and the potential for miscarriages of justice, particularly in cases involving identification evidence.
The High Court reasoned that while a jury is entrusted with the primary responsibility of determining guilt and has the benefit of observing witnesses, an appellate court must also consider the realities of human experience, including memory issues and the scientific understanding of witness reliability. The Court found that the identification evidence presented in this case was "glaringly improbable" and that errors in the Court of Appeal's assessment of the case as a whole had infected its conclusion.
Consequently, the High Court unanimously allowed the appeal, quashed Mr Fennell's conviction for murder, and entered a verdict of acquittal.
Orders
Orders of the court
1. Appeal allowed.
2. Set aside the order made by the Court of Appeal of the Supreme Court of Queensland on 21 July 2017 and in its place order that:
(a) the appeal be allowed;
(b) the appellant's conviction for murder be quashed; and
(c) a verdict of acquittal be entered.
Background
Background to the litigation
At the conclusion of the hearing of this appeal, this Court unanimously ordered that the appeal be allowed, the order of the Court of Appeal be set aside and in its place order that: (i) the appeal be allowed; (ii) Mr Fennell's conviction for murder be quashed; and (iii) a verdict of acquittal be entered[3]. The Court said that reasons would be published at a later date. These are our reasons for making those orders.[3]Criminal Code (Qld), s 668E(2).Uncontroversial facts and unchallenged evidence Mrs Watson was an 85-year-old lady who lived in a two-storey house on Alistair Court which she kept very neat, and which one friend described as "immaculate". In the years before her death, Mrs Watson's mobility had become limited. She could walk, but not as far as the shops. She was assisted by the local Lions Club on Macleay Island, whose members do shopping and chores for elderly people. One member who had helped Mrs Watson, including delivering money for her to her daughter, Helen, on Lamb Island, was the then President of the local Lions Club, Mr Crook. Mr Fennell was a founding member of the local Lions Club. He was involved with the charitable activities of that club. For one to two years before her death, he also assisted Mrs Watson. Numerous witnesses gave evidence that Mr Fennell visited Mrs Watson, usually for 15 to 20 minutes, with accounts of his visits being almost every day or even up to twice a day. He would have conversations with her and assist her with her shopping and banking and, until another person took over, Mr Fennell also maintained her yard. Mr Fennell was contracted by various businesses in Moreton Bay to deliver pamphlets, which he did in his utility vehicle or on his "postie bike", which was a Honda CT110 motorbike. On Sunday 11 November 2012, a neighbour saw Mr Fennell delivering a pamphlet to Mrs Watson as part of his deliveries. On Mr Fennell's account, this was the last time that he saw Mrs Watson. Mrs Watson was seen outside her house at around 9.30 am on Monday 12 November 2012 by two witnesses, Ms Uzzell and Mr Barker. They respectively described her as wearing a grey house dress with shoes or a blue nylon dressing gown. That was the last time that Mrs Watson was seen alive. In the afternoon of Monday 12 November 2012, Mrs Watson did not answer telephone calls at 2.53 pm (from a caller with an international call prefix), 4.14 pm (from a caller with an international call prefix) and 4.22 pm (from Mr Fennell). On Tuesday morning, 13 November 2012, a friend, Ms Bowen, delivered newspapers to Mrs Watson's front verandah at 7.00 am or a little earlier. Those newspapers were never collected by Mrs Watson. At around 3.30 pm to 3.45 pm on Tuesday 13 November 2012, Mr Fennell drove to the residence of the Macleay Island police officer, Sergeant McDougall. He told Sergeant McDougall's wife that he had gone to see Mrs Watson that afternoon as he had missed an appointment to catch up earlier that day. Mr Fennell said that she had not answered her door. Mr Fennell said that he was concerned that she may have had a fall and might be injured in the house. Sergeant McDougall's wife told Sergeant McDougall that he may need to do a "welfare check". Sergeant McDougall accompanied Mr Fennell to the house. The aluminium windows on the front verandah were open about 5 cm but the front door was closed. Sergeant McDougall entered the kitchen of the house from a side door that was open.
Evidence
Evidence Before The Court
Full text does not contain this section.
Decision
Reasons for decision
KIEFEL CJ, KEANE, NETTLE, GORDON AND EDELMAN JJ
Where a court of criminal appeal is called upon to decide whether it considers that, upon the whole of the evidence, it was open to the jury to be satisfied beyond reasonable doubt that the accused was guilty of the offence charged, the court must not disregard or discount either that the jury is the body entrusted with primary responsibility of determining whether the prosecution has established the accused's guilt or that the jury has had the benefit of having seen and heard the witnesses[4]. At the same time, however, the court may take into account the realities of human experience, including the fallibility and plasticity of memory especially as time passes, the possibility of contamination of recollection, and the influence of internal biases on memory[5]. The court can also take into account the well-known scientific research that has revealed the difficulties and inaccuracies involved in assessing credibility and reliability[6]. And especially is that so in a case like this where the jury has been subjected to the seductive effects of a species of identification evidence that has in the past led to miscarriages of justice[7]. For the reasons we have given, and without impugning the honesty of Mr and Mrs Matheson in any way, their evidence was glaringly improbable.[4]M v The Queen (1994) 181 CLR 487 at 493.[5]Bingham, "The Judge as Juror: the Judicial Determination of Factual Issues" (1985) 38 Current Legal Problems 1 at 16-18.[6]Fox v Percy (2003) 214 CLR 118 at 129 [31]. See also Devlin, The Judge (1979) at 63; Bingham, "The Judge as Juror: the Judicial Determination of Factual Issues" (1985) 38 Current Legal Problems 1 at 7-8, 10-11; R (G) v Governors of X School [2012] 1 AC 167 at 196-197 [80].[7]See R v Clout (1995) 41 NSWLR 312. See and compare Domican v The Queen (1992) 173 CLR 555 at 561.The decision of the Court of Appeal In an appeal where a ground of appeal is that the verdict was unreasonable or cannot be supported having regard to the evidence, and particularly where the Crown case is based upon a number of matters of circumstantial evidence, it is necessary for the appellate court to assess the whole of the case and to weigh that case as a whole. A circumstantial case cannot be considered in a piecemeal fashion[8]. A corollary of this principle, particularly in cases in which the conclusion is not clear-cut, is that a substantial error, or errors, by an intermediate court of appeal in the process of assessing the case as a whole can infect the entire process.[8]R v Hillier (2007) 228 CLR 618 at 638 [48]. The Court of Appeal (Gotterson JA, with whom Philippides JA and Byrne SJA agreed) properly engaged in a consideration of the case as a whole when assessing Mr Fennell's submission that the jury verdict was unreasonable or cannot be supported having regard to the evidence. However, and with genuine respect for an experienced judge, the reasoning of Gotterson JA involved errors in four areas which infected his conclusion. It is likely that a different process of reasoning in relation to any one of these areas would have led to a different conclusion.Mr Fennell did not say that he gave $8,000 to Mrs Watson's daughter
Ratio Decidendi
Legal Principle Established
Established by:
KIEFEL CJ, KEANE, NETTLE, GORDON AND EDELMAN JJ