‘Blindingly obvious’ problem with murder conviction
LAWYERS for Steven Fennell successfully used Australia's most famous wrongful conviction case - Lindy Chamberlain - to argue their client had been wrongly convicted.
"When you are dealing with a circumstantial case, a single problem with that circumstantial case can, depending on the circumstances, be devastating," barrister Saul Holt told the High Court of Australia.
Liselotte Watson was last seen alive at 9am on Monday, November 12, 2012 and was found dead in her bedroom on Macleay Island at 4.30pm the following day.
This left a window of 31 hours.
The Crown relied on various pieces of evidence to suggest what time the killer may have struck, including a neighbour who said her lights were out at 9.30pm that Monday, something she described as "unusual".
Two phone calls, one around 2pm and the other around 4pm, went unanswered.
The Crown suggested she may have been dead by Monday afternoon.
Mr Fennell's barrister told the High Court this meant little.
"We are dealing here with an 85-year-old woman who was using at least a cane, struggling to walk, in a two-storey house and who only had a landline," he told the court.
"So the notion that a call to her landline might have gone unanswered at a couple of points during the day is, in the ordinary course of human experience, entirely explicable."
Mr Fennell, the island's junk mail deliverer, had befriended the elderly Liselotte Watson, who had injured her hip and found it difficult to get around.
He would visit her up to twice a day, usually for fairly short periods.
"Mr Fennell would assist the deceased - part of his function in the Lions Club on Macleay Island - do shopping for her, do banking, assist her around the house, those sorts of things," Mr Holt told the High Court.
Mr Holt said evidence from neighbours that they saw Mr Fennell visit twice on the Monday.
But he said the evidence was problematic because it was easy to confuse his frequent visits.
He argued claims from a neighbour that Mr Fennell arrived on Monday night at 6pm and remained until 7.30pm was unreliable, given evidence from his wife that he was home for dinner and activity on his computer.
The Crown at trial said Mr Fennell would have used that 90 minute window to stage the house as though a burglary had occurred, having murdered the elderly woman during his earlier visit.
Mr Holt argued the Crown case did not exclude anybody else.
"(There was) nothing to suggest he had exclusive access over that time," he said.
"There was evidence of tradespeople having visited the house in the days and weeks before with work being done, and a very large number of witnesses in the case referred to seeing - having access to the deceased in the sense of visiting her, having cups of tea, having chats with her.
"She was described as someone who carry around large bundles of cash in her little purse, which becomes significant later, and she was someone who was known to have cash in the property.
"In other words, regrettably, she was a target, an obvious target for someone who wanted cash, and cash in short order."
ALLEGATIONS OF THEFT
The Crown alleged Mr Fennell had been stealing money from Mrs Watson and that she had become suspicious and intended to confront him.
In fact, there was evidence that she had confided in a friend about her fears that Mr Fennell had been taking her money.
Mr Holt told the High Court Mr Fennell often did Mrs Watson's banking for her.
The Crown alleged that on one occasion, on November 2, Mr Fennell changed a withdrawal slip for $3000 to $8000.
On other occasions, the withdrawal slips appeared to have been filled out by Mr Fennell.
This evidence was based on the opinions of a handwriting expert.
"Mr Fennell explains to police that sometimes he did some of it (the writing) because her hand seized up, in effect," Mr Holt said.
He said that the bank would often call Mrs Watson to confirm her authorisation before handing cash to Mr Fennell.
Mr Holt said the notion he would try and change a withdrawal amount in order to steal from her was "flawed".
"All he needed to do was take the money, give it back to her at the house - he knows she stores it at the house because everyone does - and then steal it from there," Mr Holt said.
Mr Holt said the Crown described the Fennells as having a "meagre income" and that Mr Fennell had a large gambling habit he hid from his wife.
"He gambled. They lived relatively hand to mouth … therefore he needed money, therefore he stole from her," her said.
But, he argued, Mr Fennell was earning more than $100,000 a year and a junk mail delivery contract he'd lost - worth $347 a week - had not actually been taken off him at the time of the murder.
THE EVIDENCE IN THE OCEAN
On November 10, two days before Mrs Watson was last seen alive, a shaving bag with the elderly woman's Westpac banking folder was found in a tidal mangrove area at Thompson's Point, on Macleay Island.
After Mrs Watson is discovered murdered, the resident told police of her discovery.
Police searched the area and found more items.
One was a hammer. And the other was Mrs Watson's TransLink wallet containing some cards.
"Why would he care about the TransLink wallet? There is simply no connection," Mr Holt said.
He said the banking documents only went up to September and did not take in the allegations of theft from November.
Mr Holt said there were "blindingly obvious" problems surrounding the identification of the hammer.
"There is literally nothing that links that hammer to this murder, save for the fact that it is consistent, as many other items may be with the nature of the injuries that were sustained by the deceased," he said.
The hammer was identified by a couple who believed they loaned it to Mr Fennell.
The couple came forward after seeing an image of it flash on the news.
Mr Holt argued the couple contaminated each other's evidence, that their evidence was unreliable and the hammer was a common brand.
WHAT THE JUDGES SAID
Five judges were unanimous in their decision to allow the appeal.
The High Court of Australia ordered that "the appellant's conviction for murder be quashed and a verdict of acquittal entered".
The court will publish its reasons at a later date.
MR FENNELL'S PAST
What the jury didn't hear in his trial, was that Mr Fennell was a convicted conman with a lengthy criminal history.
He was jailed in Tasmania in the 1980s for theft and forgery and on his release, bragged that he had stolen another $250,000 that police didn't know about.
His criminal history dated back to 1978. Between 1978 and 1993, he had amassed 41 convictions.
In 1994, he carried out a vicious attack on a woman he was living with in Victoria.
A Victorian court was told at the time that Fennell tied the woman's hands for consensual sex and then, without warning, started biting and squeezing her body.
In the terrifying attack that followed, he put a sock in the woman's mouth, put a pillow over her face and started punching her.
At the height of the assault he put his hands around the woman's neck and throttled her.
It was all done without him saying a word.
Eventually he pulled out a knife and cut her free and a friend took her to hospital.
She was left with a black eye, blood nose and was spitting up blood among other injuries.
Fennell, who was then 35-years-old, pleaded guilty to recklessly causing serious injury and was jailed for one year and four months over the attack.