R v Fennell

Case [2017] QCA 154

SUPREME COURT OF QUEENSLAND

CITATION:

R v Fennell [2017] QCA 154

PARTIES:

R
v
FENNELL, Steven Mark John
(appellant)

FILE NO/S:

CA No 83 of 2016
SC No 308 of 2015

DIVISION:

Court of Appeal

PROCEEDING:

Appeal against Conviction

ORIGINATING COURT:

Supreme Court at Brisbane – Date of Conviction: 21 March 2016

DELIVERED ON:

21 July 2017

DELIVERED AT:

Brisbane

HEARING DATE:

24 May 2017

JUDGES:

Gotterson and Philippides JJA and Byrne SJA
Separate reasons for judgment of each member of the Court, each concurring as to the order made

ORDER:

Appeal dismissed.

CATCHWORDS:

CRIMINAL LAW – APPEAL AND NEW TRIAL – VERDICT UNREASONABLE OR INSUPPORTABLE HAVING REGARD TO EVIDENCE – APPEAL DISMISSED – where the appellant was convicted by a jury of murder – where the appellant contends that the verdict is unreasonable because the jury could not have excluded, beyond a reasonable doubt, the possibility that someone other than the appellant killed the deceased – where the appellant argues that a reasonably open hypothesis was that the deceased had been killed during a burglary – where there was no complaint at trial with respect to the learned trial judge’s summing up on matters of evidence – whether there was a reasonable hypothesis consistent with the appellant’s innocence open on the evidence – whether the verdict was unreasonable

CRIMINAL LAW – APPEAL AND NEW TRIAL – OBJECTIONS OR POINTS NOT RAISED IN COURT BELOW – IMPROPER ADMISSION OR REJECTION OF EVIDENCE – GENERAL PRINCIPLES – where the appellant argues that evidence before the jury included unfairly prejudicial evidence relating to the appellant’s criminal history, emotional volatility, finances and internet usage – where there was no application to exclude any of this evidence at trial – where the respondent contends that defence counsel either made a rational forensic decision not to object to this evidence, or otherwise dealt with it appropriately during the course of the trial – whether the appellant was unfairly prejudiced by the admission of the evidence – whether there was a miscarriage of justice

CRIMINAL LAW – APPEAL AND NEW TRIAL – PARTICULAR GROUNDS OF APPEAL – CONDUCT OF DEFENCE COUNSEL – where the appellant argues defence counsel at trial failed to object to the admission of irrelevant and unfairly prejudicial evidence – where the appellant further argues defence counsel at trial failed to obtain a report from a forensic pathologist to counter the Crown’s evidence on the time of death, to ask questions of the appellant’s wife about the appellant’s computer usage on the date of the murder and to establish the habits of the deceased – whether the failures were explicable on the basis that they could have achieved a forensic advantage for the appellant – whether the failures deprived the appellant of a real chance of acquittal – whether there was a miscarriage of justice

CRIMINAL LAW – APPEAL AND NEW TRIAL – INTERFERENCE WITH DISCRETION OR FINDING OF JUDGE – CONTROL OF PROCEEDINGS – DISCHARGE OF JURY – where, on the sixth…

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AGLC
R v Fennell [2017] QCA 154
Case
[2017] QCA 154
Decision Date

CaseChat Overview and Summary

In the case of R v Fennell, the appellant appealed against a conviction for murder, arguing that the verdict was unreasonable and that there was a miscarriage of justice due to various trial errors. The court was tasked with determining whether the verdict was unreasonable or insupportable, whether there was a reasonable hypothesis consistent with the appellant’s innocence, and if any errors at trial deprived the appellant of a fair trial.

The court first examined the claim that the verdict was unreasonable, considering whether a reasonable hypothesis existed that someone else killed the deceased during a burglary. The court found that the evidence did not support such a hypothesis, as there was no reasonable basis to exclude the possibility that the appellant committed the murder. The court also noted that the appellant had not raised any complaints about the summing up at trial, and thus, the trial judge's directions to the jury were not challenged. Furthermore, the court held that the appellant's criminal history, emotional volatility, finances, and internet usage were not unfairly prejudicial and did not render the verdict unreasonable.

The court then addressed the appellant's contentions regarding the admission of prejudicial evidence and the performance of defence counsel. The appellant argued that the evidence was unfairly prejudicial and that defence counsel failed to object or take certain actions that might have benefited the appellant. The court found that the evidence was not unfairly prejudicial, and any failures by defence counsel were either strategic decisions or appropriately managed during the trial. The court held that these issues did not amount to a miscarriage of justice or deprive the appellant of a fair trial.

Finally, the court considered whether the trial judge erred in refusing to discharge the jury due to a comment about the appellant's 'form'. The court concluded that the judge's decision was correct, as the comment did not inform the jury about the appellant's criminal history. The court found no error in the trial judge's handling of the proceedings.

The appeal was dismissed, and the conviction for murder was upheld. The court determined that the verdict was reasonable and supported by the evidence, and that any alleged trial errors did not deprive the appellant of a fair trial.

Orders

Orders of the court

Appeal dismissed.

Background

Background to the litigation

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Evidence

Evidence Before The Court

Evidence of the appellant’s criminal history: Early in the appellant’s interview with police on 14 November 2012, he said that, “you’re well aware that I’m known to the Police”.[141] He then expressed his discomfort with the interview process saying:[142]“And I’m screwed either way here. I don’t like these interviews. My attitude always comes off as either smart arse or whatever else and I, I’ve been screwed over any number of times by police. I don’t know you gentlemen – But the last time I got screwed over in Tasmania, fifty thousand dollars went missing and the police officer involved was later dismissed because the contents of the safe went missing, including all the drugs and everything else.”[141]MFI “C” p 4 ll35-36.[142]Ibid p 5 ll17-27. Later in the interview the appellant said:[143]“That’s why I don’t do well at interviews when police try to [elicit] an answer and ask the same question in nine different ways but it’s the same question and you, you say, I just fucking, but what part of this don’t you understand and it invokes a response that doesn’t win you a -, ah, there’s no way I can [indistinct].”Towards the conclusion of the interview, the appellant remarked that “[m]y fingerprints are on file [indistinct]”.[144][143]Ibid p 38 ll16-20.[144]Ibid p 153 l13. The appellant contended that the only reasonable inference arising from these statements taken together was that the appellant had a criminal history. That was unfairly prejudicial in itself. Here, the prejudice was heightened by the reference to the thefts in Tasmania in the context of the Crown case that the deceased was murdered by the appellant to conceal theft from her.[145][145]Appellant’s Outline of Submissions, para 112. In oral submissions, senior counsel for the appellant conceded that the description given to this evidence was “not quite accurate”.[146] Presumably this concession was made because some, at least, of these statements could not have grounded a reasonable inference that the appellant had a criminal history. A broader basis for the complaint, it was explained was that the statements were evidence of bad character and were not admissible as relevant to the question of whether or not the appellant killed the deceased.[147][146]Appeal Transcript (“AT”) 1-40 l42.[147]AT 1-41 ll3-5. The availability of the inferences for which the appellant has contended falls to be assessed by reference to their content and the context in which the statements were made. In my view, neither the statement concerning the Tasmanian incident nor the statement about the appellant’s not doing well at interview is, by its content, capable of grounding an inference that the appellant had a history of criminal convictions. The first related to apparently dishonest conduct on the part of a police officer and not the appellant. The second reflected the appellant’s frustration over how he was being dealt with by police in relation to this matter.

Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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