Fennell v The Queen

[2019] HCATrans 58

[2019] HCATrans 058

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Brisbane  No B48 of 2018

B e t w e e n -

STEVEN MARK JOHN FENNELL

Applicant

and

THE QUEEN

Respondent

Application for special leave to appeal

KEANE J
GORDON J

TRANSCRIPT OF PROCEEDINGS

FROM MELBOURNE TO BRISBANE BY VIDEO LINK

ON FRIDAY, 22 MARCH 2019, AT 11.06 AM

Copyright in the High Court of Australia

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

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

KEANE J:   Yes, Mr Holt.

MR HOLT:   May it please the Court.  We need leave out of time.  It is not opposed, but I seek it.

KEANE J:   Any opposition, Mr Byrne?

MR BYRNE:   There is no opposition.  I will make a submission towards it later but I do not oppose the grant of time.

KEANE J:   You have that extension.

MR HOLT:   Thank you.  May it please the Court.  Our respectful submission is that this was an objectively inadequate Crown case, one that permitted a conclusion based only, with respect, on conjecture and speculation and therefore fell plainly below the line of an acceptable verdict based on reason and rationality.  On that basis, on a proper assessment of the evidence, including on the reasons below, bearing in mind the mistakes that were made and focusing on particular aspects of the evidence, special leave is justified in this case in the interests of justice particular to this case.  It also, in our respectful submission, raises important questions about the identification of objects ‑ ‑ ‑

GORDON J:   Are they the Clout directions?

MR HOLT:   Yes - about the identification of objects in particular.  It raises that, obviously, as the Court will be aware in the context of the critical evidence in our submission of the hammer – in this case, the identification of the hammer by Mr and Mrs Matheson, which was, if I could get to the heart of the point, in our submission a profoundly inadequate identification of an object, one which would not have survived ‑ in the way I have put that, there is an immediate concession, of course – an application to have it excluded and that the Court of Appeal, his Honour Justice Gotterson, was wrong to conclude that that evidence was admissible. 

Even had it been admissible the directions that needed to be given to it in relation to it to ensure that it was properly dealt with were those of a kind identified by Acting Chief Justice Kirby in his Honour’s dissent in Clout, and they were not given because the issues that arose here in respect of this identification were profound notwithstanding the fact that this was an identification of an object not the identification of persons. 

Even if we are wrong about all of that, in our submission the weaknesses in the evidence of the identification of the hammer and the centrality of the hammer to the prosecution case to any capacity to conclude to a standard anywhere approaching reasonable doubt that Mr Fennell was the murderer in this case – that that evidence was so weak that it did not permit that conclusion even if proper directions had been given.  That is the essence of the argument that we make.

The Court will appreciate that there were in essence three aspects to the prosecution case:  opportunity, motive and the hammer.  The hammer, in our respectful submission, was the critical aspect.  There was no forensic evidence at all linking Mr Fennell to either the scene of the murder, but had there been it would probably have been innocuous because he was a regular attendee of the house.  Nor was there any forensic evidence more importantly linking Mr Fennell to the murder itself, that is, no evidence of blood or anything of that kind directly linking him to a weapon being used, putting the hammer to one side.  Nor was there any forensic evidence linking him to any of the items that were otherwise located in the mangroves at Thompson Point.

The evidence of motive and opportunity in this case – it would be neither appropriate nor possible in the time available in this application to go into the detail of that evidence – were, in our respectful submission, extraordinarily weak.  This was not a case, circumstantial case where the combination of the various strands of evidence permitted any strength to be drawn from them.  It was not strands of a rope winding together; rather, it was the strands of a rope dangling next to each other.

The only thing – indeed, the only point at which Mr Fennell gets charged – that gives the case any sense of credence at all or reliability is, as we say, the evidence of the hammer.  That was confirmed by the learned trial judge.  Indeed, it was the way in which the prosecution case was run at trial.  As his Honour the trial judge put it, and for the Court’s reference it is at page 19 of the application book at line 23, which were the directions given in respect to the hammer:

The case against the defendant depends to a significant degree on the correctness of the identification of this hammer by each of Mr and Mrs Matheson.

That was so.  The Court will well appreciate that the other evidence was, in our respectful submission, so lacking that evidence which would have otherwise, if it were capable of acceptance and, indeed, accepted, suggested or showed or permitted the conclusion that it was a hammer that Mr Fennell had had that was found at Thompson Point near the discarded possessions of the deceased then that was on its face capable of acceptance – a really powerful conclusion for the jury to reach, for guilt.  That is why the Crown and the trial judge plainly, in our respectful submission, and properly made it clear that the hammer was essentially the central feature of the circumstantial case. 

It was found ‑ the Court will have picked this up I am sure, but just to step very briefly through the narrative of the finding of the hammer – two days before the murder – and it was plainly a murder - some items in a toiletry bag that belonged to the deceased were found in mangroves inadvertently, in effect, by a resident of Macleay Island and handed in to the police.  They included receipts and so on for banking.

After she was found dead – in fact, three days later – further items that belonged to her, including a TransLink wallet, a white purse, were found.  Then 15 metres away from that location was found this hammer.  There was no forensic link between the hammer and the murder.  The only link was that the pathologist had opined, without challenge, that the crescentic shape of the injuries were consistent with an object such as a hammer.

The hammer was corroded.  That was made clear in the Court of Appeal judgment.  Photographs were available on the appeal and below.  It was on its face an otherwise entirely unremarkable hammer; it was just a hammer.  The hammer was identified – this was the critical point; it was the point after which Mr Fennell was arrested – from a news bulletin by the Mathesons as one which had been linked to Mr Fennell much, much earlier and, on their evidence, never returned by him.  As I say, if that was his hammer then it was the only meaningful piece of evidence against him. 

That evidence was, in our submission, so poor as to be obviously inadmissible, in our respectful submission, and if not obviously inadmissible so called it could not provide the necessary support to an otherwise extremely weak Crown case.  On the appeal, as the Court will know, the point was taken that it was incompetent of trial counsel not to have objected to it.  But in the course of answering that question, the Court of Appeal below, Justice of Appeal Gotterson at paragraphs [127] to [128] of the judgment at page 78 of the application book, which is where his Honour deals with the question, dismisses that proposition in short order and, in our submission, in a way which makes clear that his Honour, with respect, completely failed to grapple with the palpable weakness of the identification which I will very briefly take the Court through.

It is not putting matters too high, in our respectful submission, to say that the weaknesses in the identification of the hammer evidence almost ticked every box – Domican‑like box – on the question of weakness of identification evidence per se.

GORDON J:   So is that a direct challenge to paragraph [84] of Justice Gotterson’s reasons where he talks about “the hammer stood as strong circumstantial evidence”?

MR HOLT:   Absolutely, and his Honour seems to have concluded a couple of things to get to that conclusion:  first, that Mr Matheson was detailed and consistent in his description of the hammer ‑ ‑ ‑

GORDON J:   You challenge that because of the inconsistencies between Mr and Mrs Matheson’s evidence about the hammer?

MR HOLT:   Absolutely, and also just the inherent unlikelihood of a capacity to identify those kinds of marks and also, obviously, the passage of time, which appears to have been lost as well.  On Mr Matheson’s evidence it was a year or two before the murder that he had last seen the hammer.  On his wife’s evidence it was something like three or four years.  So we have a time limit problem or a time lag problem in that respect as well.  They both describe it, as your Honour Justice Gordon has noted.

If it had only been Mr Matheson who said “I remember this little mark because I…..and I got angry”, it would have had some compelling aspects to it.  But then his wife just as convincingly describes the same marks as coming from entirely different sources.  That takes us to the fundamental problem.  His Honour’s response below, which was it had an appealing practicality to it just was not answer to this problem, which is that it was first seen by flashing up, as it was described by Justice Gotterson below, on a news story.  One can well understand how quickly that would have happened – flashing up on a news story a picture of a hammer – and then an inconsistency between Mr and Mrs Matheson as to what is then said.

Mr Matheson says it was not about the Macleay Island murder at all, recalling these are Macleay Island residents and there are two and a half thousand people living in that small community.  His wife says no, it was clearly an article about the island murder and she would normally expect to be right about that because it would be odd for it to otherwise be so.  She says, “I said, ‘That’s your hammer.’”  Mr Matheson says, “No, I recognised it straightaway”. 

What is clear enough is there was no capacity, as a matter of just blindingly obvious logic, for either of them to have assessed the little marks and things that then happened 12 days later at the police station when they had been looking at the hammer, or looking at the photographs of the hammer.  There is a suggestion that they looked at the hammer as well; that seems to be likely what occurred in the evidence, though it is not 100 per cent clear. 

There was a profound risk of the most extreme kind of confirmation bias in that sequence of events.  “That’s your hammer”, in the context of an event which was significant to them, one expects, given that they were people in this community, and then going to the police station and being shown only photos of that hammer – so no line‑up, no montage or anything else – the risk of confirmation bias was really significant.  As I have noted, the marks themselves were significantly different.

There was this quite facially compelling piece of evidence given by Mr Matheson.  I raise this because again it highlights the kind of Domican‑style issues relating to the identification of objects in the context of this case, where he says in evidence, “A workman knows his tools.  You can put out about a hundred hammers and a workman will be able” – a tradesman, I am sorry, he says – “will be able to pick out his hammer”.  They tried that of course with him, with chisels and screwdrivers, and he cannot do it. 

But it is the sort of thing which gives rise to this fundamental problem with identification evidence that the courts well recognise in terms of risk of improper reasoning and prejudice in that sense, which is the risk that witnesses who are absolutely certain of their own views, no doubt honestly so, will be extraordinarily compelling, and the need therefore to treat, in a case where an object is as important as a person, which was clearly the case here, as Acting Chief Justice Kirby said in Clout, to treat it essentially in the same way and to make sure that (a) appropriate directions are given and (b) in our respectful submission more importantly in the context of this case, that a court is alive to the fact that those weaknesses may well in fact mean that the evidence is inadmissible at all in any event.

KEANE J:   Whether or not the evidence was admissible and whether or not a Clout direction should have been given, you would say that in asking whether the verdict was reasonable or whether the Court of Appeal’s conclusion that the verdict was reasonable was correct, one should be alive to the Clout considerations in determining that question.

MR HOLT:   Precisely so.

GORDON J:   Can I ask one more question about that?  Do you accept that at paragraph [88] Justice Gotterson is asking himself the right question, having gone through this question about, in effect, the hammer, the motive and opportunity?

MR HOLT:   Can I say we considered this and my submission is - and came to the conclusion, I hope not wrongly, no.  When one reads the judgment in its totality and the correct citation of R v M, for example, and the correct citation of Baden‑Clay, we felt that it would be submission we could not sustain and that that would be the appropriate response to it. 

GORDON J:   I see.

MR HOLT:   Facially, though, on the face of paragraph [88], it is not right but in context it would appear, in our submission, to have been a difficult submission to maintain.

GORDON J:   Thank you.

MR HOLT:   I hope that was not an inappropriate concession.  That is the approach we took.  The remaining issues which essentially go to the question of opportunity and motive and the inadequacy of the Crown case in that regard are adequately set out, in our respectful submission, in the submissions that we make in the application book.  It is an essential precondition, I think, to special leave being granted on a visitation basis that the Court would accept that the opportunity and motive evidence otherwise was plainly insufficient to get to the point of a verdict of guilt in the absence of the evidence of the hammer.  In our respectful submission, that is plainly so. 

If I can just deal with those two questions on that basis really briefly.  Opportunity in this case was problematic because the span over which death could have been caused was relatively broad, that is, on the pathological evidence the 12th was preferred but the 13th was open.  The applicant, as the Court knows, provided - although he was apparently not a suspect he was nonetheless interviewed for six or seven hours in the days following and provided a timeline in detail. 

The Crown only disputed that timeline in respect of two matters.  One was his attendance at the TAB and the other one was a claim from a witness that he had returned to the house at 6.00 pm, evidence that was in itself highly problematic because there was evidence of him being on a computer at that time at home.  Otherwise, his timeline was not challenged.

It was common ground that he had attended at the house in the morning.  It was common ground that he was a regular attendee at this lady’s house, that that was something that he had done for at least a year or more.  There was nothing, in our respectful submission, in the highly problematic evidence that the claimed identifications of him or his bike or his utility vehicle arriving at the house to permit a conclusion of anything other than he visited the house once on that day, which was something which he had acknowledged in any event.

There was certainly nothing linking him to the interior of the house.  What was clear from the evidence was that when a police officer first arrived at the house there was a view that this was a burglary of some sort, or described as a break‑in. 

The problem for the prosecution and one of the reasons why opportunity was so problematic for them was that no matter where they went their timeline did not really make any sense because the deceased was found in bed, or next to the bed but with a duvet over the top of her, in her bedclothes but with her dentures in, yet the Crown case had her being killed on the basis of sporadic and problematic views of when he was at the house, sometime between 11.00 am and 2.00 pm.  The Court will have seen the difficulties with that evidence in terms of the inconsistencies and so on between them.  It kind of made no sense.

The way in which his Honour Justice Gotterson dealt with what was described as the alternative hypothesis of burglary was in itself problematic because his Honour said something which ended up being, with respect, entirely internally inconsistent.  What his Honour said was on the one hand the Crown case was that Mr Fennell had returned to make it look like a burglary, and on the other hand that it did not look like a burglary.  That excluded the alternative hypothesis of burglary.

The one fact that seemed to be relied on by the prosecutor and by the Court of Appeal was that there was no evidence of forced entry into the house, to which of course one responds:  if the murder happened as the Crown said it did, sometime in the middle of the day, then why would there necessarily be any difficulty in entering the house?  Why would the burglar need to be somebody unknown to the deceased in this case?  So those bases, which were the only bases put by Justice Gotterson as to the reason why a reasonable alternative hypothesis could be excluded, were, in our respectful submission, plainly inadequate.

The prosecution case – I will deal with this quickly – had its other credible aspect, and much of the three‑week trial was dedicated to it:  this notion of motive based around Mr Fennell’s gambling activities.  One gets a sense at times that the case was almost accepted in the Court of Appeal as being “if we can show that he did not have a lot of money then suddenly there is a motive”, which is of course erroneous reasoning – certainly erroneous reasoning to the extent that it is capable of properly supporting a verdict of guilt beyond reasonable doubt for murder.

This is where the mistakes that we have identified being made by the Court of Appeal and by his Honour Justice Gotterson become important.  The Court will be aware that there were a series of withdrawals that Mr Fennell makes from the deceased’s bank account over a number of months:  $3,000, $7,000, $3,000, $3,000, $8,000, in effect or close to that.

It was no part of the prosecution case, although one does not quite read that in the Court of Appeal judgment, that anything other than $5,000 of the 2 November withdrawal was other than legitimate.  The claim is he turned $3,000 into $8,000 and stole $5,000.  The Crown case was always put on the basis that the other withdrawals were done with her authority and consent.  She was someone who had quantities of money over that period of time.

So the 2 November date became critical, and the court’s error in concluding, as we have noted and as accepted by our learned friend, that the court erred in concluding that Mr Fennell had claimed to have delivered that money to the mainland from 2 November and that that had been denied by the deceased’s daughter was wrong, and it is accepted to be wrong, and it is a critical point going to that question of motive.  It goes to the very moneys that were in issue.

The second error, which our friend seeks to discount, is the error in claiming that there was an absence of commensurate withdrawal to fund his gambling over the relevant time.  In fact, as we have set out, the evidence demonstrated no meaningful change in Mr Fennell’s gambling habits over time, nor in fact in any sensible sense from the financial analysis that was done, any obvious problems. 

The Crown’s star point was this $10,000 of unexplained income, which sounds pretty compelling initially until one realises that that occurred over a 28‑month period for someone running a lawn‑mowing business and therefore amounts to $80 per week.  Or, when in fact, as we have noted in the outline and we do not understand it to be disputed, on that analysis, in truth, $9,000‑odd of that was from a single payment received in 2011, miles before any issue arose in the context of this case.

I am conscious (a) of time and (b) that all I will end up doing is giving a closing address, which I do not want to do.  Our respectful submission is opportunity and motive in this case were extraordinarily weak and the hammer was so poor that it could not get anyone over the line.  By proper understanding of the Clout principles, which have never been considered by this Court, that evidence is either, as your Honour Justice Keane said – well, did not say, but our submission is it is either admissible, better directions needed to be given which identified those

critical issues, or, if all of that was okay, at the very least the Crown case was still one which fell so far short of an appropriate standard that there was a genuine prospect here that that a substantial miscarriage of justice has occurred.  Unless I can assist the Court, those are our submissions. 

KEANE J:   Thanks, Mr Holt.  Yes, Mr Byrne.

MR BYRNE:   If it please.  The proposed grounds of appeal in each of the three proposed grounds assert error on the part of the Court of Appeal.  The first asserts error in terms of the manner in which the Court of Appeal dealt with the unreasonable verdict ground.  The next two assert error in relation to a consideration of the way that the trial was conducted.

It is said against us that the case was unreasonable and that the Court of Appeal was in error in failing to so find, and there were three particulars put towards that.  The first is in relation to the use of the money from 2 November, and I accept that there is a misstatement in the lead judgment from the Court of Appeal of Justice Gotterson. 

It is accepted that the applicant did not suggest to police that he went to give some of the money on 2 November to the deceased woman’s daughter.  He did, however, speak on other occasions.  That was denied by the granddaughter.  Whether it occurred on 2 November is, in my submission, irrelevant.  It speaks only of a misstatement or indeed an infelicity of language.  It has no real effect on the conclusions.  It does not change the observations which were made as to motive.

The motive was, broadly speaking, the asserted changing of the withdrawal slip from $3,000 to $8,000 and the misuse of that $5,000, or the theft if you like, of the $5,000 on 2 November.

KEANE J:   But the motive, though, that was suggested was a fear of her complaining about that – complaining about him for stealing the money.  It is not so much ‑ ‑ ‑

MR BYRNE:   I am sorry, I expressed it poorly.  Your Honour is quite right.  Yes.  It is that fear of discovery of the theft of the $5,000.  That needs to be seen in the context of the overall financial analysis which is said to be part of the error in the third particular promoted by the applicant.  It is put against us in the applicant’s reply that we have oversimplified the fact by referring to expenditure of $10,000 of the $15,000.  Let me put it a little more broadly.

The applicant had meagre income, or comparatively meagre income.  There was little by way of continued savings.  On the financial analysis which of course only dealt, and could only ever deal, with verified income, it can be noted from the exhibits that as at 21 August 2012 there was a combined saving of something in the order of $4,770.  By the time of 12 November that had receded to the sum of $2,731. 

Superimposed on that is the evidence that in the week of 22 October he was notified that his leaflet delivery service for the local IGA store would not be required further but he would be paid for outstanding invoices.  That seems to have been terminated on 5 November, but he had notice sometime in the week of 22 October.          This was a man who was, on the evidence, a heavy and regular gambler. 

GORDON J:   He was ahead on his repayments on his mortgage, was he not?

MR BYRNE:   He was, and they could not be withdrawn.  It was this change of income which was particularly significant of $347 a week.  Just to round that off for your Honour I think it was in the sum of about $4,000 they were ahead on the mortgage.  In those circumstances it was open to conclude that the forensic analysis in effect suggested that his gambling must have been funded other than from those verifiable sources.  In the response we have placed before the Court some of the figures that were being withdrawn at the relevant times.  In paragraph 3.9 on page 97 of the application book, at the very last line of that page, we note that:

the applicant withdrew $2000 cash on 6 November 2012 – the first Tuesday in November – and then a further $3000 cash over the 8^th and 9^th –

That is a combined total over those two days.  He was a regular and a heavy gambler.  If it was open to the jury to accept and, indeed, there was no error in his Honour Justice Gotterson accepting, that the $5,000 had been taken by this man and, hence, his fear of being discovered was one that was open on the evidence in that light ‑ ‑ ‑ 

KEANE J:   Mr Byrne, what is the high point of the Crown case that the deceased was aware of and intended to take action about this supposed theft?

MR BYRNE:   Would become shortly aware of because of the likelihood of receiving bank statements in the near future, not necessarily that she had already become aware.

KEANE J:   Right.  So do I take it then that the answer to my question is there is not any evidence that she had indicated to anyone her intention to complain to the police about the accused?

MR BYRNE:   No, there was not.

KEANE J:   Thank you.

MR BYRNE:   Thank you.  The location of withdrawal slips which the applicant had been involved, quite legitimately, in the transaction of but these withdrawal slips being found in the water on 10 November is, in our submission, inexplicable unless it can be related back to a fear of being discovered.  It cannot be said when they were placed in the water.  We accept that.  But there is then the coincidence ‑ and we say more than coincidence; it is the circumstance – of the location after the time of death of the hammer in roughly the same general area, which can be traced back to the applicant.

The complaint is made that this evidence should not have been led at trial.  The error that is said in this Court is that the Court of Appeal erred in saying that it would have been admitted.  But one must see any asserted error against the background of the complaint made before the Court of Appeal.  This is a case where both for the proposed second and third grounds the ground was not taken in that form at any stage earlier – not at trial by experienced criminal counsel and not in the form it is now sought to be litigated in this Court, even though the applicant was represented by senior counsel in the Court of Appeal.

In relation to the hammer, the complaint was part of a compendium of complaints about the conduct of counsel, in effect, in not objecting to it.  The comment made by his Honour Justice Gotterson at paragraph [128] on page 78 that:

Had defence counsel objected to any of this evidence on either of these grounds –

those grounds being relevance or prejudice:

the objection would have failed.

I do not walk away from that in making the observation that it is a ground that has not been taken previously, but that is a relevant consideration in the sense that this Court has spoken of the need for exceptional circumstances to warrant the grant of special leave where the grounds have not been taken below. 

One of the reasons relates to the compendium of considerations concerning finality of litigation, the concept of a client being bound by the conduct of counsel and the undesirability of different counsel being involved at different stages running defences in different manners.  That is precisely what has happened here. 

A further consideration, although I accept at the outset that it is relatively minor given that I have conceded the application to extend is the delay in bringing the proceedings.  I simply make that point and move on from there on it.

So the court was not being asked to consider the admissibility per se; it was considered in the context of whether it was open to counsel to consider that it would have been unsuccessful had objection been taken.

GORDON J:   But objection was taken, Mr Byrne.

MR BYRNE:   And that in light of that, the conduct of cross‑examination and trying to make inroads was, as his Honour ‑ ‑ ‑ 

GORDON J:   Objection was taken.  Objection was taken under ground 1, was it not?  Objection was taken under ground 1 that the verdict was unreasonable, and part of that assessment of the evidence was the strength of the evidence concerning the hammer.

MR BYRNE:   I will stand to be corrected.  I had understood that it was being run as a separate concept under ground 2, I thought – ground 3.  If I am in error in that, I apologise; I am not seeking to mislead the Court in any way.  Certainly, the court was not being asked to rule on the sufficiency of the directions which seem to have been incorporated into the applicant’s argument in this Court notwithstanding the ground is referring to error in admissibility.

KEANE J:   Mr Byrne, just pausing there, what do you say to Mr Holt’s contention that, questions of admissibility apart and questions of a Clout direction to the jury apart, the Court of Appeal’s reasoning is deficient in that it does not attend to the Clout considerations, the considerations discussed in Clout, as going to the fragility, if you like, of evidence of identification of objects?

MR BYRNE:   If there is a rule that requires the court to consider independently the admissibility of each of the items on which the court then relies to uphold the reasonableness of a verdict and to consider admissibility in detail, there is certainly a matter to be argued in this Court on a full hearing.  But there is no requirement as I understand it for that, particularly in light of my understanding in any event of how proceedings were conducted below, that the reasonableness was being considered on the basis of an assumption that that hammer was admissible.

Certainly, to my recollection in any event, there was no specific argument directed to the matters that were said to affect the admissibility, and certainly there was no reference to Clout, but I do not suggest that is fatal that it was not named by name.  The allegation of error ‑ ‑ ‑

KEANE J:   Sorry, Mr Byrne, while I have interrupted you, can I ask you another question?  

MR BYRNE:   Yes, your Honour.

KEANE J:   In relation to the evidence about the injuries suffered by the deceased, is it correct to say that that evidence was to the effect that the injuries were consistent with the use of a hammer rather than that the evidence was that the hammer was the cause of those injuries?

MR BYRNE:   I believe that to be the case, yes.

KEANE J:   Thank you.

MR BYRNE:   As my learned friend quite correctly submitted this morning orally, there was nothing forensically to link the hammer to the particular infliction of the injuries.

GORDON J:   Or to the applicant.

MR BYRNE:   Forensically, no, that is so, your Honour.  I was going to say that error has to always be seen through the prism of what is placed before the intermediate appellate court.  The court is entitled to assume that arguments not being conducted by experienced counsel have been considered and need not be trawled over.  Of course there will be occasions where the courts will ask particular questions, but it is very difficult to come along now in a recast manner and say that the Court of Appeal had erred when the argument that is now being run, particularly in relation to the admissibility of the hammer, was, as I understand it, not conducted below.  I understand your Honour Justice Bell had thought it ‑ ‑ ‑

KEANE J:   Justice Gordon, Mr Byrne. 

MR BYRNE:   I beg your pardon; Justice Gordon.  I am sorry.  Justice Gordon had thought that it had been conducted below, but it certainly, as I say, was not my understanding that it was run on that basis.  It was run on ground 1, the unreasonable verdict, was on the basis that if the hammer was admissible there was still an insufficiency of evidence.

Bearing in mind the time that I am speaking, can I just very briefly touch on one other matter, and that is the aspect as to the state of the

bedroom.  The applicant accepts that the suggestion in the original application that there was reference to the upstairs bedroom was incorrect.  The point is well made in reply that the matters referred to by Justice Gotterson as to the evidence of forced entry, there being no evidence of forced entry, no evidence of rummaging and no evidence of disturbance of anything on the upper floor should be looked at disjunctively. 

The finding as to no evidence of rummaging of the drawers is simply based on evidence of a police officer named Strang, a detective who distinguished between the removing of a drawer and rummaging through items in the house.  He described it in terms of the house being generally fairly neat.  That is contrast to the first officer who attended, who thought that there had been a burglary, and that was on the basis of some drawers being pulled away but not out of a coffee table‑style piece of furniture and a TV being placed on the ground and unplugged.  The findings in that respect were very much open. 

I suspect, although I have not heard the beep, that I am about to be out of time.

KEANE J:   You have three more minutes.

MR BYRNE:   Thank you.  I will move very quickly to the third ground.  My submission on that is very simply that – again, it is a new ground of complaint; I will not trawl over that – the previous complaint was on the basis of the conduct of counsel in permitting the recording and the transcript to be before the jury, in which it was said it could be deduced that the applicant had prior convictions.  The Court of Appeal held at application book 75, paragraphs [105] and [106] and page 78, paragraph [124] there were legitimate forensic reasons for that to occur and they are not criticised by me in any event.  The complaint is now that the transcript had references to prior periods of imprisonment. 

Our submission is that there is no real risk that the jury were aware of those passages of the transcript and that to say otherwise is, with respect, speculative.  Those who are best placed to assess that risk are those who were involved in the conduct of the trial.  Both counsel saw there was no real risk and the presiding trial judge did not demure from that.  There is no basis for that ground.

They are my submissions.  Can I simply apologise to Justice Gordon.  Where I am sitting, I am getting a stripe right down the screen just near where your Honour is, so I do apologise for misnaming you.

GORDON J:   Thank you.

KEANE J:   Thanks, Mr Byrne.  Mr Holt, before we hear from you, just give us a moment.  Mr Holt, the way in which you have presented the application today suggests that whatever you want to say about the substance of your grounds 2 and 3 is really bound up with ground 1.

MR HOLT:   Yes.

KEANE J:   You have heard what has been said by Mr Byrne in relation to the admissibility point.

MR HOLT:   Yes.  Ground 1 is our best point.

KEANE J:   It is.  Would you argue for the retention, as grounds of appeal, of 2 and 3?

MR HOLT:   Not if special leave were to be granted on 1, no.  With respect, listening to the way in which the argument has presented itself, that appears to be the appropriate course.

KEANE J:   All right.  There will be a grant of special leave to appeal on ground 1 at page 83 of the application book.  How long do you apprehend the appeal will take to be heard?

MR HOLT:   I would have thought half a day.

KEANE J:   Mr Byrne, the estimate is half a day.?

MR BYRNE:   I agree.

KEANE J:   Very well.  There will be a grant of special leave confined to ground 1 at page 83 of the application book.  The parties will be provided with directions as to times to which they should adhere.

The Court will now adjourn to Tuesday, 9 April at 10.00 am in Brisbane. 

AT 11.46 AM THE MATTER WAS CONCLUDED