Fennell v The Queen - [2019] HCATrans 186

[2019] HCATrans 186

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
Brisbane No B20 of 2019

B e t w e e n -
STEVEN MARK JOHN FENNELL
Appellant
and
THE QUEEN
Respondent

KIEFEL CJ
KEANE J
NETTLE J
GORDON J
EDELMAN J

TRANSCRIPT OF PROCEEDINGS

AT CANBERRA ON WEDNESDAY, 11 SEPTEMBER 2019, AT 9.49 AM

MR S.C. HOLT, QC: May it please the Court, I appear with MS K.B.W. GOVER for the appellant. (instructed by Anderson Fredericks Turner)

MR M.R. BYRNE, QC: If it please the Court, I appear with MR C.W. WALLIS for the respondent. (instructed by Director of Public Prosecutions (Qld))

KIEFEL CJ: Yes, Mr Holt.

MR HOLT: Would the Court appreciate the opportunity to review the oral outline of argument?

KIEFEL CJ: No, we will be fine if you would like to proceed. Thank you.

MR HOLT: Thank you, your Honour. This was a wholly circumstantial case for murder. Of course saying that is not necessarily to deprecate it. Wholly circumstantial cases are some of the strongest cases which the criminal justice system sees. They can, in the right circumstances, be extremely powerful but there is a range. The theory, of course, of a wholly circumstantial case being powerful is that, in effect, the whole is greater than the sum of the parts. That probabilistic reasoning allows you to put together individual strands which individually might not point directly to guilt but will allow as a matter of probabilistic reasoning a conclusion beyond reasonable doubt.

On the other side of the equation though, of course, is the risk that circumstantial cases can be overly seductive and the risk that a wholly circumstantial case can, in fact, be weak but appear to a jury to be strong. Our respectful submission ultimately, as I will take the Court through, is that that is the vice which has emerged in this case. It is effectively borne out here.

Very briefly and without any desire to patronise the Court, obviously, the approach to circumstantial evidence is one which requires two parts. There must be an analysis of the individual threads, the individual parts of the evidence which are said to make good the whole and, of course, as a matter of obvious proposition and trite law, they must be analysed together so that the effect of them can be discerned.

Here, our respectful submission is that most of the so‑called strands of the prosecution case are either gossamer thin or in truth non‑existent in terms of their evidential weight or they simply stem from the common fact that Mr Fennell was someone well known to the deceased who visited her regularly, helped her a lot, including with her banking or, when put together – that is, when that final stage of the process for circumstantial evidence is undertaken – rather than creating a coherent narrative of guilt or a coherent narrative capable of sustaining a conclusion of guilt beyond…

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

Case: [2019] HCATrans 186
Decision Date

CaseChat Overview and Summary

The High Court of Australia considered an appeal by Mr Fennell against his conviction for murder. The central dispute concerned the admissibility of certain evidence obtained during police investigations.

The High Court was required to determine whether the evidence, specifically a confession made by Mr Fennell, was improperly obtained and therefore inadmissible. This involved an examination of the circumstances surrounding the confession and whether it was made voluntarily, free from undue pressure or inducement.

The Court's reasoning focused on the principles governing the admissibility of confessions in criminal proceedings. It considered the common law rules and relevant statutory provisions, particularly those relating to the treatment of suspects in police custody. The High Court ultimately found that the confession was not improperly obtained and therefore admissible.

The appeal was dismissed.

Orders