In Fennell v The Queen  HCA 37 (reasons published 6 November 2019) the High Court of Australia has explained its unanimous decision to allow the appeal of the accused (the appellant) from the decision of the Court of Appeal of the Supreme Court of Queensland in R v Fennell  QCA 154 (21 July 2017). Previously on 11 September 2019, the High Court had quashed the appellant's conviction for murder and ordered that a verdict of acquittal be entered.
The appellant was convicted on 21 March 2016 of murder at Macleay Island, on or around 12 November 2012, and was later sentenced to life imprisonment.
The victim was an 85 years old resident of Macleay Island. The appellant had done occasional odd jobs for her. The victim lived alone in a two-storey house and was killed in her bed by blows to the head with a blunt instrument.
The appellant was the person who alerted police on 13 November 2012 to express concerns about the victim’s welfare. The police, in the company of the appellant, attended the victim’s house on 13 November 2012, finding the victim’s body face-down on the floor of her bedroom. It looked as if there had been a break-in.
The Crown made out a case against the appellant where it alleged that the appellant had been stealing from the victim as a way of funding his gambling habit and fearing he would soon be discovered provided him with a motive for the victim’s murder.
The Crown’s case also included evidence from a couple, that a number of years before the murder, they had lent the appellant a hammer. This hammer they then identified as the hammer alleged to be the murder weapon which had been found in mangroves off Macleay Island, a short distance from banking documents and a shaving bag belonging to the victim.
The Crown’s case against the appellant’s was entirely based on the circumstances and the appellant submitted that an alternative hypothesis consistent with innocence, that of a botched burglary, was reasonably available on the evidence.
The appellant appealed to Queensland Court of Appeal (Gotterson and Philippides JJA, Byrne SJA - see R v Fennell  QCA 154 (21 July 2017)). In that appeal, the appellant argued that the jury’s verdict was unreasonable and that it could not be supported by the evidence. The appeal was unanimously dismissed the on 21 July 2017.
In reaching their decision their Honours noted that the task for a Court when an “unreasonable verdict” ground of appeal is raised, “. . . is to make an independent assessment of the sufficiency and quality of the evidence at trial”. Their task is then to decide whether, upon the whole of the evidence, it was reasonably open to the jury to be satisfied beyond reasonable doubt that the appellant was guilty of the offence for which he was convicted.
The Court of Appeal found that, while this was not a case of “evidential perfection”, there was sufficient evidence to support the major strands in the Crown’s circumstantial case. Further, the alternative hypothesis proposed by the appellant, consistent with innocence, was not a reasonable one, given the absence of any evidence of a forced entry, the rummaging of drawers or the disturbance of anything in the upper floor of victim’s home. These weighed against the appellant’s alternative being accepted.
On consideration of the evidence as a whole, the Court of Appeal found it open to the jury to be satisfied beyond reasonable doubt that the appellant had murdered the victim and dismissed the appellant’s appeal.
The appellant sought and was granted special leave to appeal to the High Court (see Fennell v The Queen  HCATrans 58 (22 March 2019)). The sole ground of appeal is that the Queensland Court of Appeal erred in failing to find that the verdict was unreasonable or could not be supported having regard to the evidence, in part because it made significant errors of fact.
In reaching its decision the High Court found that the Crown case on the questions of opportunity and motive was extremely weak. It did not place the appellant in “. . . a relevantly different position from numerous other residents of Macleay Island who had the common knowledge that the victim kept large amounts of cash in her house”. The police had searched the appellant's home and his person and, in both searches, found nothing linking the appellant to the murder. Further, the appellant’s DNA and fingerprints were not found at the crime scene and he was excluded from the DNA taken from the victim’s shaving bag found with the hammer. CCTV footage, showed the appellant’s opportunity to carry out the crime was small and required assumptions about the timing of the murder contradicting other evidence. Further, as regards the appellant’s gambling providing a motive, this was discounted by accounting evidence showing that his gambling habits were unchanged. The appellant was not in debt and that he was ahead on his mortgage repayments.
The High Court found that the Crown’s case on “opportunity and motive” was quite weak. The identification of the hammer became essential evidence for a reasonable jury to convict the appellant. In this respect the High Court held that the evidence had identified the hammer was “glaringly improbable” [see paragraphs 78- 81] and their evidence should have been given so little weight that, at best, it was barely admissible.
The High Court unanimously held that on the evidence it was not open for the jury to be satisfied of the appellant's guilt beyond a reasonable doubt [see paragraph 91].
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Fennell v The Queen  HCA 37 (reasons published 6 November 2019)
Fennell v The Queen  HCATrans 186 (decision 11 September 2019)
Fennell v The Queen – Short Particulars and summary
Fennell v The Queen  HCATrans 58 (22 March 2019)
R v Fennell  QCA 154 (21 July 2017)
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