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

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…

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.

Continue reading Fennell v The Queen

Details

AGLC: Fennell v The Queen [2019] HCATrans 58
Case: [2019] HCATrans 58
Decision Date

CaseChat Overview and Summary

Steven Mark John Fennell applied to the High Court of Australia for special leave to appeal against a decision of the Queensland Court of Appeal. The applicant sought to challenge the sufficiency of the Crown's case at his trial for murder, arguing that the verdict was unreasonable and that the Court of Appeal erred in upholding it. The core of the applicant's argument was that the prosecution's case relied too heavily on conjecture and speculation, particularly concerning the identification of a hammer found near the deceased's belongings.

The legal issues before the High Court concerned whether the evidence presented at trial, specifically the identification of the hammer, was admissible and, if so, whether adequate directions were given to the jury regarding its assessment. The applicant contended that the identification of the hammer by Mr and Mrs Matheson was profoundly inadequate and should have been excluded, or at least subject to stringent directions akin to those required for person identification in cases like *Domican* and *Clout*. Furthermore, the applicant argued that even if the hammer evidence was admissible and properly directed, the overall Crown case, comprising opportunity, motive, and the hammer, was so weak that it could not rationally support a guilty verdict.

The applicant's counsel submitted that the Crown case lacked any forensic evidence linking Fennell to the murder scene or the murder weapon, and that the evidence of motive and opportunity was extraordinarily weak. The hammer, found near the deceased's belongings and identified by the Mathesons as belonging to Fennell, was presented as the critical piece of evidence. However, the applicant argued that the identification was flawed due to inconsistencies between the witnesses, the passage of time since they last saw the hammer, and the risk of confirmation bias when viewing it in the context of a news report and subsequent police interviews. The applicant also highlighted alleged errors by the Court of Appeal in assessing the evidence of motive, particularly concerning financial transactions and gambling activities, and in dismissing the alternative hypothesis of burglary.

The respondent, the Queen, through the Director of Public Prosecutions (Qld), accepted a misstatement in the Court of Appeal's judgment regarding a specific detail about the use of money from a withdrawal slip. However, the respondent argued that this misstatement did not affect the overall conclusions regarding motive, which was broadly based on the applicant's fear of discovery of theft. The respondent contended that the financial analysis, despite the applicant's income from a lawn-mowing business, suggested that his gambling habits were funded from sources other than verifiable income, and that the location of withdrawal slips and the hammer in proximity to each other supported a fear of discovery. The respondent maintained that the Court of Appeal did not err in its consideration of the unreasonable verdict ground or the conduct of the trial.

Orders