A few weeks ago, the High Court of Australia (Australia’s final court of appeal) handed down its reasons for quashing the appellant’s murder conviction in Fennell v The Queen  HCA 37. This was an unusual case, partly because the conviction was based entirely on circumstantial evidence, and partly because the appeal succeeded solely on the basis that the evidence was such that it was not open to the jury to be satisfied of the appellant’s guilt beyond a reasonable doubt.
Typically, a court of appeal will be slow to overturn a jury conviction on the basis that it was not supported by the evidence. The court is very mindful of the fact that the jury have heard the witnesses and examined the evidence at first hand. They constitute the proper forum for determining the facts in a case. So long as it was reasonably open to the jury to convict on the evidence presented, an appeal court will not normally interfere with their conclusion even if the court may not necessarily have reached the same conclusion itself. Successful appeals are much more likely to result from an error of law or procedure such as the improper admission of significant evidence or a misdirection on the law to the jury by the trial judge. Successful appeals solely on the basis that the jury got it wrong are relatively few.
The murder occurred in a small island community of no more than 2,500 people. The victim was an elderly lady with limited mobility. She lived on her own in a house that formed part of a small development of detached houses located close to each other. She was bludgeoned to death with a claw hammer in a brutal manner that left a blood-spattered scene in her bedroom. It is inconceivable that the murderer would not have been spattered with blood, perhaps quite substantially. The victim’s house was ransacked in the style of a burglary. It was known that she kept large sums of money in it, yet very little cash was found on the premises during the subsequent police investigation.
It was established that the murder must have occurred at a time between 9.30am on Monday 12th November and about 4.00pm the next day. The pathologist “preferred” a time of death at some time on the 12th November, but he could not be precise about the time on that day, even though the victim was killed while lying in her bed in her nightclothes.
As a founder member of the local Lion’s club who did shopping, banking and other chores for the victim, the accused called with the victim almost on a daily basis. The police arrested him a few days after the murder and searched his house. They conducted a forensic examination of his body, clothes and “postie motorbike” (which he allegedly used to drive to and from the scene of the crime) and took fingerprints and DNA evidence. No evidence to connect the accused with the crime was found, despite the fact that the killer must have been spattered with the victim’s blood. The police also installed covert listening devices in the accused’s house and in the motel in which he stayed while his house was being searched. No incriminating conversations were picked up on them. A search of his bank accounts did not reveal any unusual lodgements or other suspicious transactions.
In short there was no tangible evidence connecting the accused to the murder. The prosecution’s case was purely circumstantial; consisting of alleged opportunity, motive, and a miscellany of related matters.
The prosecution’s case
The prosecution’s case against the accused was essentially that he had stolen money from the victim and that he had murdered her to avoid detection. They said that he murdered the victim at some point between 9.30am and 3.49pm (when he was picked up on CCTV in a local gambling club) on the 12th November. The accused’s movements after 3.49pm were independently supported. Nevertheless, there were fundamental problems with the prosecution’s case.
There was no direct evidence that the victim was killed between 9.30am and 3.49pm on the 12th November. Indeed, there was some circumstantial evidence that she may have been killed during the night of the 12th. Apart from the fact that she was killed while lying in her bed in her nightclothes, a couple living in the vicinity gave evidence of their dog waking them up during the night of the 12th/13th and barking underneath the window in the direction of Alaistair Court where the victim lived. This was most unusual behaviour as the dog was trained not to bark, and it took some time to settle him down. Shortly after that (about 2.30am or 3.00am), they heard a car travelling at speed down Alaistair Court.
Evidence of opportunity
Three witnesses gave separate evidence that allegedly placed the accused at the victim’s house on the 12th, but the evidence of each was problematic. One witness thought that he saw a utility vehicle parked on the victim’s street at 11.00am in a fleeting moment as he was driving past the end of the street. One year later, the witness recognised the vehicle as the accused’s even though his description of it did not match the accused’s vehicle. There was also independent evidence that the accused could not have been driving his utility vehicle at that time, and the witness himself accepted in cross-examination that his recognition of the vehicle was “simply a reconstruction after the event”. So little reliance could be placed on such evidence that the prosecution opted not to rely on it in the appeal.
A second witness, who lived two houses for the victim, said she looked out her bathroom window and saw a man park his “little red bike” and go into the victim’s house with pamphlets at 2.00pm. She did not see him leave, but heard the bike leave about 20 minutes later. She did not know the accused but had seen the same man deliver pamphlets there regularly (something that the accused would have done). Her evidence did not match the accused’s own timeline that he had given to the police. Equally, however, it conflicted with the evidence of the witness’ wife and an independent witness who both said they were with the accused until 2.30pm. Moreover, the prosecution witness said that she placed her 2.00pm sighting as being on the 12th (rather than the 13th) as she had heard the man say to the accused on the 11th that he would call with her the following afternoon. There was evidence that the accused had in fact arranged to call with the victim on the afternoon of the 13th. Taking all of this together, there was a major doubt over the reliability of the date and time of the witness’ sighting.
Even if the witness’ date and time of the sighting were accurate, it would not have provided sufficient time for the accused to have committed the murder, ransacked the house, returned home, showered, cleaned his clothes, washed his bike, and all without being seen by his wife, before going out again to the gambling club. Even the prosecution accepted that that was unlikely, so they sought to rely on an even more implausible theory that he returned to the victim’s house to clean up at 6.00pm. To place him there at that time, they relied on an identification from a third witness.
The third witness gave evidence of seeing the accused at the victim’s house at 6.00pm on the 12th. That evidence, however, was flatly contradicted by independent evidence which rendered it virtually impossible to be accurate.
The High Court concluded that the evidence of opportunity was, at best, a very weak strand in the prosecution’s case. Any opportunity that he had to commit the murder barely set him apart from other members of the population on the island.
Evidence of motive
The prosecution argued that the accused’s motive in allegedly murdering the victim was to prevent her finding out that he had been stealing from her to cover his gambling losses. To support this, they presented circumstantial evidence of the accused’s gambling losses, withdrawals of significant amounts of money by the accused from the victim’s bank account over a three month period, an apparent attempt to alter one of the withdrawal slips from $3,000 to $8,000 and an apparent attempt by someone to dispose of some of the victim’s bank withdrawal slips a few days before the murder. As with the evidence of opportunity, however, there were fundamental problems with the prosecution’s evidence for motive.
The evidence of gambling losses, as with so much of the prosecution evidence, was tainted by tunnel vision. It relied on losses sustained from bets placed on a single afternoon. There was nothing unusual about the accused’s gambling that afternoon and, critically, when viewed over a longer period his gambling was entirely sustainable. There was no evidence of problematic losses. Moreover, the accused’s personal finances were in a healthy state.
The pattern of withdrawals from the victim’s account was not highly unusual. In any event, there was material evidence suggesting that the withdrawals by the accused were authorised by the victim. Equally, there was no evidence that the alteration of a “3” to an “8” on a withdrawal slip had been done by the accused. Even if he had made the alteration, the evidence was such that it was likely done on the authority of the victim.
The High Court concluded that the prosecution evidence on motive placed the accused in a position that was little different from that of others on the island who had knowledge that the victim kept significant quantities of cash in her house and who might have had the opportunity to steal from her, but about whom there was never any suggestion of suspicion. In other words, the accused was being singled out on motive in an almost arbitrary manner.
Significantly, on the appeal, the prosecution accepted that once the conclusion was reached that the circumstantial evidence was weak, the evidence about the alleged murder weapon would be vital for a reasonable jury to convict. This was part of a miscellany of other matters that the prosecution was relying on as pointing towards guilt, but they were arguably even more circumstantial and remote than the evidence of opportunity and motive.
Miscellany of other matters
One of the miscellany of other matters was the failure of the accused to include, in his timeline to the police, the time he spent in the gambling club on the afternoon of the 12th. However, his omission could be explained by the fact that he was trying to keep his gambling secret from his wife. In any event, his presence there, which was captured on the club CCTV, was more properly to be considered evidence of alibi for that period, rather than evidence of guilt.
A few days before the murder, a bag containing the bank documents and withdrawal slips relating to the victim’s bank account was found in the mud at low tide. An attempt had been made to dispose of them, and the prosecution’s case was that this had been done by the accused in an attempt to conceal his alleged thefts from the victim’s bank account. A few days after the murder, a police diver recovered the claw hammer believed to be the murder weapon together with a wallet and purse belonging to the victim. The prosecution case was that their discovery near each other suggested that the murder was linked to theft from the victim. Even if the link was accepted (which was merely conjectural), it provides no credible circumstantial evidence against the accused as there was no evidence singling him out as someone who had stolen from the victim.
The other matters presented by the prosecution suffered from similar weaknesses. Either they did not point particularly at the accused and/or, properly interpreted, they were exculpatory than inculpatory. Nevertheless, the alleged murder weapon deserves particular attention, as the prosecution accepted in the High Court appeal that it was vital in enabling a reasonable jury to return a guilty verdict in this case.
Alleged murder weapon
The alleged murder weapon was a claw hammer of a standard type that could be purchased in a hardware store. A husband and wife gave evidence that when watching television news some months after the murder, a claw hammer flashed up on the screen (with no context relating it to the murder). They immediately recognised it as one they had bought many years previously as part of a toolbox of second-hand items. The husband said he had loaned it to the accused a year or two before the murder (the wife said four or five years before), but he did not return it.
An immediate problem arises over how they could have recognised it instantly from the television so long after they had loaned it. There was nothing to single out the hammer from other such hammers. When interviewed by the police and shown the hammer, they gave very precise explanations of the most minor imperfections on it, yet the husband was unable to identify his own tool belt, screwdrivers and chisels from a line up conducted by the police. There were also several inconsistencies between their evidence
The circumstances in which the formal identification of the hammer was made are prone to cause errors in memory. The identification was not conducted for 12 days after the hammer flashed up on the screen, and years after they had last seen it. By that time, the witnesses were aware that it was associated with the murder. Critically, they identified it in circumstances where they were shown only that hammer. They were not presented with a range of similar hammers and asked to pick it out.
The Court was of the view that an accurate visual identification of the hammer in these circumstances would have required an astonishing visual memory. In assessing the witness’ evidence, the Court acknowledged the acute importance of the fact that the jury had the benefit of seeing and hearing them give it. Equally, however, it was conscious of the risk of a miscarriage of justice in a case like this “where the jury is subjected to the seductive effects of a species of identification evidence”. Without impugning their honesty, the Court concluded that their evidence was “glaringly improbable”. It also said that their evidence “had so little weight that, at best, it was barely admissible”.
The inherent weakness of the hammer evidence, coupled with the weaknesses in the evidence of opportunity and motive, left the Court with no option but to conclude that the guilty verdict was unreasonable. It was not open to the jury to be satisfied of the accused’s guilt beyond a reasonable doubt. Accordingly, the conviction was quashed and a verdict of acquittal entered.
Given the circumstantial and highly speculative nature of the case against the accused in Fennell, it is a concern that the prosecution should ever have been taken. The High Court’s meticulous examination of the evidence and exposure of its inherent weaknesses offers a salutary reminder of the risks associated with an assumption of guilt on the basis of suspicion and conjecture instead of hard evidence. At the very least, it is incumbent on the prosecution to subject circumstantial evidence to rigorous scrutiny, with particular weight being given to possible explanations that are consistent with the suspect’s innocence. A failure to do so can result all too easily in a miscarriage of justice. This obligation is not diminished by the availability of an appeal mechanism. In the Fennell case, the Queensland Court of Appeal actually upheld the conviction, despite the obviously unsatisfactory nature of the prosecution evidence. Even appeal court judges at one step removed from the trial can be seduced by the superficial attractions of circumstantial evidence. This is compounded by the fact that they are notoriously reluctant to second guess the findings of a jury who have seen and heard the witnesses at first hand.
Happily, justice was ultimately done at the third attempt in the Fennell case. It should not be forgotten, however, that the accused has been subjected to the life-changing ordeal of being charged, tried and convicted at first instance of the brutal murder of an elderly lady whom he had helped everyday in a small close-knit community.