R v Pentland

Case [2020] QSC 231

SUPREME COURT OF QUEENSLAND

CITATION:

R v Pentland [2020] QSC 231

PARTIES:

THE QUEEN

v

NEIL ANDREW PENTLAND

FILE NO/S:

Indictment No 532 of 2019

DIVISION:

Trial Division

PROCEEDING:

Trial

ORIGINATING COURT:

Supreme Court of Queensland

DELIVERED ON:

4 August 2020

DELIVERED AT:

Brisbane

HEARING DATE:

20, 21, 22, 23, 24, 27 and 30 July 2020

JUDGE:

Martin J

VERDICT:

Count 1 - Murder - Not guilty

CATCHWORDS:

CRIMINAL LAW – PARTICULAR OFFENCES – OFFENCES AGAINST THE PERSON – HOMICIDE – MURDER – VERDICT – where the deceased was murdered on 13 April 1997 in a plant room at his office building – where the deceased had been shot in the head and neck with four bullets – where it was not in contention that the deceased was dead and that whoever killed him had intended to do so – where the defendant was the director and secretary of the company that employed the deceased – where the defendant was charged on indictment with murder in 2019 following three distinct police investigations – where the case against the defendant was circumstantial – where the prosecution submitted that the defendant was the only person with the opportunity, motive and knowledge required to carry out the killing – whether the prosecution has proved beyond reasonable doubt that it was the defendant who killed the deceased

Criminal Code, s 300, s 302, s 615C, s 644

R v Baden-Clay (2016) 258 CLR 308, cited
Barca v The Queen (1975) 133 CLR 82, cited
Peacock v The King (1911) 13 CLR 619, cited
Shepherd v The Queen (1990) 170 CLR 573, cited
COUNSEL:

DL Meredith for the Crown

SC Holt QC and BD Dighton for the defendant
SOLICITORS:

Office of the Director of Public Prosecutions for the Crown

Gilshenan and Luton Legal Practice for the defendant

  1. Philip Carlyle was murdered on 13 April 1997. He had been lured, or coerced, into a small, sound-proofed plant room in an office building at Robina. He was then shot in the head and neck with four .32 calibre steel jacket bullets. The prosecution argues that this was a planned murder – that the killer went there armed and with an idea of how to hide the noise of the shots. It was described as an “execution”.

  2. One day short of 22 years later, Neil Pentland was charged on indictment that, on the 13th day of April 1997 at Robina in the State of Queensland, he murdered Philip James Carlyle. He has pleaded not guilty. The defendant had almost no experience with firearms. The only evidence is that, on one occasion, he had fired a handgun at a few beer cans for target practice – in about 1964.

  3. The prosecution case against Mr Pentland is circumstantial. There was no eye witness. There was no confession. The prosecution relies on a combination of events and relationships to prove the charge.

  4. This case was conducted without a jury under Chapter Division 9A of the

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R v Pentland [2020] QSC 231
Case
[2020] QSC 231
Decision Date

CaseChat Overview and Summary

The case of R v Pentland involved a dispute over the murder of Mr Carlyle, who was shot in the head and neck with four bullets in a plant room at his office building on 13 April 1997. The defendant, who was the director and secretary of the company that employed the deceased, was charged with murder in 2019. The prosecution’s case was circumstantial, relying on the contention that the defendant was the only person with the opportunity, motive, and knowledge to carry out the killing.

The legal issues the court had to decide were whether the prosecution proved beyond reasonable doubt that the defendant was responsible for the murder of Mr Carlyle. The court had to assess the reliability of the evidence provided by Dagmar Peyrac, a witness who claimed to have seen the defendant on three occasions, including the day before the murder, and whether these sightings were related to the disposal of a gun. Additionally, the court needed to consider the financial and operational context of the company and the relationships between the parties involved.

The court found that the prosecution had not proved beyond reasonable doubt that the defendant was responsible for the murder. The judge noted inconsistencies and unreliability in the witness Peyrac's testimony, which was critical to the prosecution's case. Peyrac’s memory was deemed unreliable due to the significant time elapsed since the events, and her accounts differed from previous statements. The court concluded that the prosecution's case was weakened by this unreliability, and therefore, the defendant was not guilty of the murder.

Orders

Orders of the court

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Background

Background to the litigation

The third chapter was conducted by Detective Sergeant Seaman from late 2016 until the defendant was charged.The background facts In 1996, the defendant and his wife (Dianne Pentland) set up a company called ATNET Pty Ltd. The defendant was a director and the secretary of the company. The shares were held by him and his wife. ATNET might now be called a start-up tech company. The initial operation of the company involved assisting clients to set up email accounts and with basic internet functions. Mr Carlyle was employed by the company as its marketing manager from late 1996. He was not a shareholder but there was an agreement which would have allowed him to buy 30% of the company’s shares for $30,000 at a later time. ATNET operated from an office located in a building at Glenferrie Drive, Robina. It consisted of: a reception area, a small kitchen area, an open work area, and two offices. Within the general office was a plant room which contained air conditioning equipment. Specific sound proofing had been applied to that plant room pursuant to arrangements made between Mr Carlyle and the real estate agents responsible for letting the office space. ATNET also employed the three children of the defendant as well as Mr Carlyle’s wife, Gion Carlyle (now Gion Tansley). The technical side of ATNET, that is the business relating to the internet, email and websites, was the province of the defendant and his sons. The marketing side was run by Mr Carlyle. In other words, the Pentlands created the product and Mr Carlyle sold it. After ATNET started operating it rapidly accrued a net debt position. Its overall debt stayed within the range of $150,000 to $200,000 until mid-1998. It had obtained a facility from the Commonwealth Bank with a debit limit of $100,000. The security for that facility consisted of:(a)a second mortgage over the Pentlands’ home,(b)a guarantee unlimited as to amount from the defendant, and(c)a first mortgage from ATNET over all its assets and undertakings. Between September 1996 and 15 April 1997, the defendant provided capital (presumably by way of loan) to the company in the sum of approximately $97,000. Between 1 July 1996 and 13 March 1997, ATNET made a loss of approximately $107,000. As at 12 March 1997, ATNET had a negative equity position of at least $75,000. It did not have any current assets such as cash at bank or any accounts receivable. The liabilities of ATNET were approximately $208,000 and its total assets amounted to approximately $132,000. An analysis by a forensic accountant of ATNET’s financial position concluded that:(a)at 13 April 1997, the defendant’s loan exposure totalled approximately $246,000,(b)the defendant’s personal property and financial status was closely aligned with the success or otherwise of ATNET,(c)the start-up period for a company like ATNET is the time of most financial pressure and the requirement for the use of borrowed funds was to be expected,(d)while the financial exposure of the defendant during the ATNET start-up phase cannot be discounted, “there were some positives that gave encouragement to the company’s dealings”, and(e)the defendant and Dianne Pentland never exceeded their loan limits or went into default with the Commonwealth Bank and they were “in front of their home loan repayments”.

Evidence

Evidence Before The Court

There is nothing in the evidence to suggest that the defendant thought otherwise than that ATNET, and through it him and his family, would benefit from the success of Insure-IT and other projects being undertaken by ATNET. At all times, I find that the defendant had the view that the success of ATNET depended not only on the work on the technological side, but also on the marketing skills of Mr Carlyle. To kill Mr Carlyle, in order to obtain the payout from the insurance policy, when, on any reasonable view of the evidence, the defendant thought that they were on the cusp of great success, makes no sense at all.The evidence of Dagmar Peyrac The investigation of this murder had been in abeyance for many years until a statement was taken from Dagmar Peyrac. Ms Peyrac had been Mr Hitchen’s partner from 1999 until 2003. The police first spoke to her in 2016. She had not had any cause to consider the events of 13 April 1997 until then. She gave evidence that she recalled that Mr Hitchen had, on one occasion, showed a gun which was contained within a box to some friends who were visiting them. She said that: • Mr Hitchen regarded it as a prized possession,• it was a BRNO brand pistol (which resonated with her as it was made in her native Czechoslovakia),• she saw the defendant on three occasions – once at the defendant’s house and twice when he came to see Mr Hitchen,• on the third occasion she saw the defendant she saw him at the front of the house when he “just stopped with the car”,• on the day she saw that occur, she and Mr Hitchen went for a drive and she believes that the same box she saw when the friends were at her house was in the car,• Mr Hitchen was, she said, upset that afternoon, and• she did not see the box which had contained the pistol again. The prosecution submits that the third occasion on which Ms Peyrac saw the defendant was the time used by him to dispose of the gun which, apparently, had been provided to him by Mr Hitchen. Ms Peyrac’s evidence can be dealt with briefly. I do not accept it. I do not say that Ms Peyrac was attempting to be dishonest in giving evidence. But, she was an unreliable historian. The events about which she gave evidence had meant nothing to her for 19 years. The evidence she gave at the committal hearing was that, on the relevant visit, she did not see the person visiting but only the vehicle. This was made very clear by her examination at the committal. The vehicle she described seeing was a white SUV or wagon. It is agreed between the prosecution and the defence that the defendant’s car at the time was a white sedan. It is much more likely that her evidence that Mr Hitchen was upset was with respect to a police search conducted of his home in 1999. The box which she saw in the car could have contained anything. It would be speculation on her part to conclude that it contained the pistol which she had seen some years earlier. Ms Peyrac did not have a reliable memory of what occurred on 13 April 1997. Her evidence on important points differed substantially from the evidence she had given at the committal. She exhibited considerable uncertainty in cross-examination about the events of that day and appeared to confuse them with events at other times and possibly concerned other people.Conclusion

Decision

Reasons for decision

Ms Peyrac did not have a reliable memory of what occurred on 13 April 1997. Her evidence on important points differed substantially from the evidence she had given at the committal. She exhibited considerable uncertainty in cross-examination about the events of that day and appeared to confuse them with events at other times and possibly concerned other people.Conclusion The prosecution has not demonstrated to the required standard all the elements necessary to constitute the offence of murder.Verdict Not guilty.

Ratio Decidendi

Legal Principle Established

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