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- Unreported Judgment
SUPREME COURT OF QUEENSLAND
R v Pentland  QSC 231
NEIL ANDREW PENTLAND
Indictment No 532 of 2019
Supreme Court of Queensland
4 August 2020
20, 21, 22, 23, 24, 27 and 30 July 2020
Count 1 - Murder - Not guilty
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
DL Meredith for the Crown
SC Holt QC and BD Dighton for the defendant
Office of the Director of Public Prosecutions for the Crown
Gilshenan and Luton Legal Practice for the defendant
- 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”.
- 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.
- 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.
- This case was conducted without a jury under Chapter Division 9A of the Criminal Code. Section 615C requires that I record:
- (a)the principles of law I have applied, and
- (b)the findings of fact on which I have relied.
The offence of murder
- Section 300 of the Criminal Code provides that:
“Any person who unlawfully kills another is guilty of a crime, which is called murder, or manslaughter, according to the circumstances of the case.”
- Section 302 sets out the circumstances in which an unlawful killing will constitute murder. For the purposes of this case the relevant circumstances are where the offender intends to cause the death of the person killed.
- The prosecution bears the onus of proving the following elements of the offence:
- (a)that the victim is dead,
- (b)that the defendant killed the victim, that is, he caused his death, and
- (c)that the defendant did so intending to cause his death.
The issues in this case
- The prosecution and the defence reached agreement on a number of matters which led to a set of formal admissions being tendered as evidence pursuant to s 644 of the Criminal Code.
- There was, of course, no debate about the victim being dead. Nor was it in contention that whoever killed Philip Carlyle had intended to do so.
- The substantive issue is whether the prosecution has proved that it was the defendant who actually killed Philip Carlyle by shooting him. In order to establish that, the prosecution must prove a number of other matters which conduce to that conclusion.
General principles of law
- There are some general principles of law which apply to all criminal prosecutions. I have set them out below. In this case, there are some additional principles to which I must have regard and I have dealt with them in the relevant parts of these reasons below.
- The prosecution has the onus of establishing the offence charged beyond reasonable doubt. There is no onus on the defendant.
- In arriving at a verdict I must act impartially and dispassionately and only on the evidence received at the trial.
- The issues that exist must be resolved by taking into account all of the evidence, but that does not mean that I have to resolve all of the questions or inconsistencies which may have been raised by the evidence or which may arise about the facts.
- The evidence which I accept and that which I reject may be based on a number of things, including what a witness had to say in the witness box, the manner in which the witness gave evidence, the general impression which he or she made when giving evidence, statements which a witness may have made at an earlier time, such as in a statement to the police or at the committal, and my assessment of other evidence including documents and other material.
- It is for me to decide whether I accept the whole of what a witness says, or only part of it, or none of it. The fact that I might not accept a portion of the evidence of a witness does not mean that I must necessarily reject the whole of that witness’s evidence. I may accept parts of it if I think it is worthy of acceptance.
- In drawing any inferences, I must be satisfied that they are reasonable ones to draw from the facts that I find have been established by the evidence. I must not engage in speculation or conjecture to fill in any gaps in the evidence but it is up to me to decide whether I accept particular evidence and if I do, what weight or significance, it should have.
- I also bear in mind that there is a difference between honesty and reliability. A person might honestly believe what he or she says about what he or she heard or saw and yet not be reliable in recollection, perhaps because of errors in observation, or of recall, or because of an inability to describe what they heard or saw. In this case, the passage of time between the events surrounding the charge and the giving of evidence in this trial is of particular importance.
- The defendant has not given or called evidence. That is his right. He is not bound to do so. The burden on the prosecution does not change and the fact that the defendant did not give evidence is not evidence against him. It proves nothing at all.
A circumstantial case – the principles
- When the case against an accused person rests substantially upon circumstantial evidence a verdict of guilty cannot be returned unless the circumstances are such as to be inconsistent with any reasonable hypothesis other than the guilt of the accused.
- To be satisfied beyond reasonable doubt of the guilt of the defendant it is necessary not only that guilt should be a rational inference, but also that it should be the only rational inference that the circumstances would enable to be drawn.
- For an inference to be reasonable, it must rest upon something more than mere conjecture. The bare possibility of innocence should not prevent a finding of guilt, if the inference of guilt is the only inference open to a reasonable person upon a consideration of all the facts in evidence.
- Further, in considering a circumstantial case, all of the circumstances established by the evidence are to be considered and weighed in deciding whether there is an inference consistent with innocence reasonably open on the evidence.
The delay between the murder and the defendant being charged
- Mr Carlyle was killed on 13 April 1997. The defendant was not charged with his murder until two decades later on 27 June 2017. This considerable delay may be taken into account.
- I accept the defendant’s submission that I should bear in mind that the delay in bringing the charge resulted in:
- (a)the memories of the witnesses fading,
- (b)the defendant not being able to test the veracity of certain allegations, and
- (c)some important evidence no longer being available.
- There were other delays, in particular, in the following up of leads with respect to persons who had expressed an enmity towards Mr Carlyle. These are matters which were left to go cold and, so, deny the possibility of finding people who might properly be regarded as suspects. That, and the delay in the bringing of the charge, also denied the defendant the capacity to make useful enquiries at the relevant time.
The police investigation
- There were three distinct chapters in the investigation of this crime.
- The first was conducted by Detective Sergeant Austin from shortly after 14 April 1997 until late 1998. Many matters were overlooked in this part of the investigation. I will list just a few.
- On 14 April 1997, a “000” call was received in which a male told the operator that he had “shot a guy”. That was not followed up. By 1998 the recording of the call could not be recovered because it had been overwritten.
- Reverse Call Charge Records of Mr Carlyle’s telephone were not obtained. These may have shown who had been talking to him on or before 13 April.
- Reverse Call Charge Records of Colin James’ telephone were not obtained. His relevance is referred to below.
- In this part of the investigation no attempt was made to take an image of the relevant computer server in the defendant’s business.
- Statements from a number of witnesses were not taken until late 1998 when the second chapter of the investigation commenced.
- In a circumstantial case like this, the failure to do these things places a shroud of doubt over the whole body of the investigation.
- The second chapter was conducted by Detective Sergeant Pritchard and Detective Senior Constable Harris from late 1998 until the end of 2002. They attempted to make up lost ground and took many witness statements but this was, of course, some 18 months after the event. These policeman were also responsible for completing a report to the Coroner appointed to investigate Mr Carlyle’s death.
- 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”.
- ATNET continued trading until August 2001 when it was renamed Golden Orb Technologies Pty Ltd.
The “Insure-IT” project
- Soon after ATNET commenced, the company developed a product called Insure-IT. It was a “pilot model for a website to sell insurance over the Internet”. Websites of that nature are now common, but in 1997 it was a new idea. ATNET did not have the financial wherewithal to develop the product and sought assistance from others, including Conor Dwyer (the managing director of an insurance broker). He thought that the idea was worth pursuing but was “perhaps ahead of its time in Australia”. Mr Dwyer contributed financially to meet part of the expenses incurred in developing the project and agreed to meet some of the travel costs of a trip planned to be undertaken by Mr Carlyle to the United States.
- Mr Carlyle was regarded by the other persons who worked at ATNET as essential for the marketing of the ATNET business. He was recognised by them as having skills which the company needed to promote its products, in particular, Insure-IT. Mr Carlyle and the defendant had jointly formed the view that they needed to explore markets that were bigger than the Australian market and they needed local expertise in those markets to do that.
- In pursuit of that expertise, Mr Carlyle and the defendant became involved with an American company called Triangle Associates. They engaged in a number of telephone conferences with members of that company. One of them – Jacqui Sinclair-Smith – was heavily involved in the negotiations with a view to the product being marketed in the United States.
Philip Carlyle – his financial history, the consequences of his behaviour and delays in the investigation of that behaviour
- When Mr Carlyle started working with ATNET he left behind him a trail of failed businesses, disappointed investors and angry creditors. He was, at times, including in the year before his death, a heavy gambler. He had been threatened with violence. On one occasion, he had to move his family to other accommodation following a threat from a Colin James. On another occasion, men came to his house, threatened his wife by holding a knife to her throat, and demanded payment from him. It is not surprising that he kept an unlicensed gun at his home.
- In 1994, he borrowed $425,000, secured by a mortgage on his family home, for a term of one year at an interest rate of 12% with the interest paid monthly. This was used to finance a bakery that Mr Carlyle was operating.
- That business failed and the family home was sold by the mortgagee in 1995. Other debts led to bankruptcy proceedings, which were pending in 1997.
- There were a number of people who had been identified to the police in the first chapter of the police investigation as people who had a reason to be unhappy with Mr Carlyle.
- One of them felt that he had been “conned” by Mr Carlyle and took matters into his own hands to recoup his lost investment. He arranged for two men to attend Mr Carlyle’s office to “discuss” the debt. Although this information was given to the police, he was not interviewed until 29 December 1998.
- Another investor was so angry with Mr Carlyle and his behaviour that, on one occasion, he grabbed a knife and pointed it at Mr Carlyle. His statement was not taken until 7 October 1998.
- There was evidence that a person involved in an early business venture with Mr Carlyle had gone “berserk” so much so that a witness thought that he might kill Mr Carlyle. The same witness was told by Mr Carlyle that he had been “warned” by a Sydney bookmaker and threatened with having his legs broken.
- Other evidence available to the police in the first chapter of the investigation was that other threats had been made by someone to whom Mr Carlyle owed money and that “two heavies” paid him a visit and demanded the money. None of these possible sources of relevant information was pursued until about 18 months after the offence.
- In the first chapter of the investigation, the police received information that Colin James had said that he hated Mr Carlyle. That was not followed up until September 1998 when the police became aware that Mr James had:
- (a)convictions for possession of an unlicensed concealable firearm and extortion in 1991,
- (b)been declared bankrupt in 1995,
- (c)previously possessed a .32 calibre pistol,
- (d)been associated with “heavies”, and
- (e)been on the Gold Coast on the day of Mr Carlyle’s murder.
- When the police, in the second chapter of the investigation, spoke to Mr James he provided an alibi witness. Further enquiries revealed that that person could not provide the alibi claimed.
An attempt to avoid bankruptcy – the Part X arrangements
- Mr Carlyle was in significant financial difficulty at the time he commenced employment with ATNET. He engaged Will Hawney, a self-described “insolvency specialist”. Mr Hawney would, for a fee of $6,000 provide assistance to this Carlyle to enter into a Part X arrangement with his creditors.
- Mr Carlyle did not have the money to pay Mr Hawney and sought assistance from the defendant. The defendant agreed to lend the $6,000 to Mr Carlyle. The amount owed by Mr and Mrs Carlyle was of the order of $120,000. The arrangement proposed to be made under Part X involved a total payment to creditors of about $70,000.
- In accordance with the usual procedure, a meeting of creditors was held on 21 February 1997. At that meeting Mr Hawney had instructions from both Mr Carlyle and the defendant. He had been instructed by the defendant to agree to the proposal – this would have meant that he would have received about 60% of the amount he had lent. The proposal was not accepted because the National Australia Bank (the major creditor) was not in favour. The meeting was adjourned and the second meeting was held on 4 March 1997. The defendant’s instructions to Mr Hawney remained unchanged. The proposal was not accepted at that meeting and no further action on the application was taken by or on behalf of Mr Carlyle.
- The defendant had had business dealings with Mr Hawney in the 1980s. In his first interview with police, conducted shortly after midnight on 14 April 1997, the defendant said that he had been very annoyed when he discovered that it was Mr Hawney who had been engaged by Mr Carlyle. He said that he had had contact with him and that he was “pissed off … to think that six thousand dollars of my money had gone to Will Hawney cause … I didn’t think [Mr Carlyle] would have success dealing with Will Hawney”.
- The prosecution argued that this linked him to the second email considered below because of the similarity between “Hawney” and “horny”.
The threatening emails
- There were three threatening emails or messages sent to, or for the attention of, Mr Carlyle. The prosecution particularly relies upon one that was sent by “Brian Jones”. It is important, though, to examine the three messages in context.
- The first was not in the form of an email. ATNET had created a website for Bruce Lytton BMW on the Gold Coast. Part of the website contained a message board on which people could type a message into an open textbox, press “submit”, and it would be published on the message board. At some time after he commenced employment with ATNET, Mr Carlyle became aware that there was a message directed to him on that message board to the effect: “You’re dead you fucking cunt.”
- There is no room for ambiguity in that brief, but baleful, message. No investigation was undertaken with respect to the possible source of that threat. There is not a whiff of evidence which suggests that the defendant had anything to do with it. Whether any examination of the website might have assisted in identifying the author, it cannot be done now because of the time which elapsed before the defendant was charged.
- The second threat was, to say the least, peculiar. It was sent from the Qantas Club lounge at Sydney airport. The prosecution submits that it was sent by the defendant.
- The body of the email reads:
“From: brian Jones < [email protected] >
Date: Sun, 23 Feb 1997 18:35:15 +1100
I want my money in full
If you and that slimy horny bastard think you can screw me you are in
for a big shit
friendly warning this time……pay up by next tuesday
I know where you live”
- The defendant was at Sydney airport at the time and he had the opportunity to use the Qantas Club lounge. He accepted that it was “more than likely” that he was in the lounge but, in the light of his earlier answers, that can only be speculation on his part.
- The message was sent after the first creditor’s meeting but before the second.
- Mr Carlyle responded to the email the following way:
We do not know who you are or what you are referring to with your letter of demand! Perhaps you can explain yourself a little more.
- That prompted an automated reply which demonstrated that there was no such address as “[email protected]”.
- There was evidence which I accept that, at that time, it was possible to send an email in which a false sender’s name and account was used.
- The prosecution argues that there is evidence that establishes that the defendant sent this email:
- The sender had to know the email address of Mr Carlyle and the defendant knew that address.
- The sender had to be in the Qantas Club lounge at the relevant time and the defendant was most likely in the lounge at that time.
- The sender had to know that Mr Hawney was acting from Mr Carlyle and know that, at the meeting of 21 February 1997, a settlement had not been reached and the defendant knew that.
- The sender had to have a dislike of Mr Hawney and the defendant had exhibited that.
- The sender had to be a creditor of Mr Carlyle and the defendant was.
- Even if all those points are accepted as being relevant, the contents of the email were entirely irrational. The wording and subject of the threat makes no sense if it was written by the defendant. Why would the defendant send an anonymous demand and threat? It could have no effect, as Mr Carlyle could not have known either the identity of the alleged creditor or the amount said to be owing.
- The defendant had lent the money to Mr Carlyle to assist him in his arrangement with creditors. By agreeing to the terms of the proposed settlement, the defendant had already agreed that he would receive less than the amount he had lent Mr Pentland for the purposes of the proposed Part X arrangement.
- Any creditor who had been alerted to the proposed Part X arrangement could have been the author of the email. Such a person would have, by virtue of notice being given, known the identity of Mr Hawney. The only link of any substance is the likely presence of the defendant at the Qantas Club lounge. But, as was pointed out on behalf of the defendant, this email was sent after both Mr Carlyle and the defendant had travelled to Sydney for a conference. The conference was attended by over 200 people and it was held at the Sydney Airport Hilton Hotel. Mr Carlyle had left the conference early and without prior notice. He had lied about his reasons for doing so.
- I accept that these circumstances leave open a reasonable possibility that Mr Carlyle came into contact with someone at the conference and that either that person, or the circumstances of a relationship with that person, caused him to leave early and lie about the reasons for doing so. Such a person could have been travelling through Sydney Airport at the relevant time.
- It is also important to note that the police investigation into the provenance of this email was quite inadequate. I accept the evidence of Mr Freda (who had been employed by Ozemail at that time) that an email from an Ozemail address coming from the Qantas Club lounge would necessarily have had to go through the Ozemail servers. For that to occur, the Ozemail account had to be one registered with Ozemail. That is, there must have been an actual account created before the email could be sent. The account must have been paid for by someone in order for it to be created. Ozemail would have had some form of record as to payment as well as records as to whether any other emails had been sent or received by that account. That information was not sought by police at the time and can no longer be recovered.
- I do not accept that it has been established, on any standard, that the email was sent by the defendant.
- It read:
“Dear Mr Carlyle,
Middle-aged men in search of adventure, bored with their wives and family, should behave themselves, before they either make fools of themselves or incur the wrath of individuals whose outstretched arms can reach a long way, yea, even unto the nether regions of Australia.
Wouldn’t you agree?”
- The evidence was that the name “labuser” was a generic name assigned to anyone who used a computer in one of the computer laboratories at Harvard University. Those computers were available to anyone who wanted to use them. There is nothing to connect the defendant with this email.
The “internet affair”
- The negotiations between ATNET and Triangle Associates involved numerous telephone conferences and even more emails between the representatives of each party. These communications related to both the technical side of Insure-IT and the marketing opportunities available in the United States.
- While these communications were continuing, a parallel set of emails grew and developed between Mr Carlyle and Ms Sinclair-Smith. Ms Sinclair-Smith was, and still is, married. These emails were, initially, playful exchanges. Over time, they became flirtatious and very personal. They led to further email conversations which were passionate and intimate. In the weeks leading up to Mr Carlyle’s proposed trip to the United States, he and Ms Sinclair-Smith were exploring ways in which they might meet and stay together in a hotel, perhaps in New York.
- Part of the prosecution case is that the defendant became aware of this “internet affair”, was incensed by it and, in association with other things, led him to murder Mr Carlyle. I will deal with that proposition later in these reasons.
The events of 13 April 1997
- 13 April was a Sunday. Both Mr Carlyle and the defendant knew that the other was going to be at work on that day. Mr Carlyle had told his wife and had made arrangements for a tennis game later that afternoon. The defendant had told his wife that he would be at work that morning. An odd thing to do if he had planned to kill Mr Carlyle.
- The defendant had made arrangements to meet Mr Carlyle at around 10am. When he arrived, Mr Carlyle was already in the office working on the Insure-IT proposal. There was some anxiety to get this work done as Mr Carlyle was due to fly to Sydney on the following Wednesday and then to Malaysia to promote the product. A teleconference had been held on the preceding Saturday with Triangle Associates where that trip and a trip to the United States, among other things, were discussed.
- The defendant told police that he left the ATNET office at about 11:15am soon after he had sent an email to Mr Carlyle attaching a diagram setting out a proposed structure for the venture.
- He says he then went to the house of John Hitchen at Reedy Creek. It is agreed that the defendant was in that general area at 11:29am. John Hitchen had done various types of work for the defendant for about eight years. Most of that work was with respect to repairing the defendant’s car but, on one occasion, he had performed some tiling work at the defendant’s residence. The defendant says he spoke to Mr Hitchen for no more than about 15 minutes and that Mr Hitchen gave him a plant to take home to use as groundcover in his garden.
- The defendant then drove to Simon Strauss’ home. It is agreed that he arrived at about midday. Mr Strauss was a friend of his who provided him with some acupuncture treatment for a frozen shoulder. He got home at about 1:45pm and spent most of the afternoon in the garden with his wife.
- The prosecution case is that Mr Carlyle was murdered at some time after 10:23am. That time is arrived at by reference to the email Mr Carlyle sent to Ms Sinclair-Smith and the estimate given by the medical examiner, Dr Carlyle. There were a number of emails which had been sent to Mr Carlyle from 11:02am onwards but which had not been opened. The email at 11:02am was the one sent by the defendant containing the diagram.
- Later that evening, Mrs Carlyle became concerned about her husband’s absence. As a result of some calls she made, the defendant and his wife went to the office to see if Mr Carlyle was there. When they arrived they found that the door to the office was unlocked. That was unusual, as it was accepted that Mr Carlyle was conscious of the need for security and it was expected that he would work with that door locked. Searches were undertaken of the office and other parts of the building. At one stage, they sought to enter a shower room but did not have the key and contacted the private security firm that worked in that building. When the employee of that firm arrived he undertook a search of the office area and entered the plant room. It was there that he found the body of Mr Carlyle.
- The plant room consists of the air-conditioning machinery about which there is a narrow L-shaped corridor. Mr Carlyle’s body could not be seen from the doorway of the plant room. He was found supine with his feet facing the wall and his head closer to the doorway.
- Dr Carlyle’s opinion was that two of the bullets had entered the back of Mr Carlyle’s head. Other entry wounds were found in the inner corner of the left eye and above the outer corner. He thought it was more likely that the shots to the back of the head had occurred first, with the third and fourth bullets fired when Mr Carlyle was lying on his back. He was also of the opinion that the body had not been moved after Mr Carlyle had been killed. Two of the bullets were found beneath Mr Carlyle’s body. The other two were recovered in the post-mortem examination.
- Dr Carlyle initially estimated the time of death as being between 10am and noon. He accepted, though, that that was just a “general indication” and that the variables in assessing rigor mortis meant that the actual timeframe could have been 10am to 3pm and that there was no “scientific basis upon which that reasonable possibility can be discounted”.
- There was nothing to suggest that a robbery had taken place. There was no evidence of any thing in the office having been disturbed.
- Investigations that took place soon after revealed:
- (a)A number of fingerprints (including unidentified fingerprints) were found on the door to the plant room and in the plant room. No fingerprints from the defendant were found on the door to the plant room or in the plant room.
- (b)There was no evidence of the defendant’s DNA in the plant room or on or around Mr Carlyle’s body.
- (c)No blood from Mr Carlyle was found on any of the defendant’s clothing or shoes.
- (d)Nothing of any relevance was found when the defendant’s car and his home and grounds were searched on the day following the death.
- (e)The defendant’s hands were swabbed at 3am on 14 April 1997 and showed no gunshot residue. I accept the evidence that the gunshot residue could remain on the hands for up to 24 hours depending upon a number of circumstances.
- (f)No bullet casings were found in the plant room.
- As another example of the slow pace of investigation, the defendant’s car was not tested for the presence of blood until August 2003. No blood was detected.
Where is the murder weapon?
- The weapon used to kill Mr Carlyle has never been found.
- On 15 April 1997, police searched Mr Hitchen’s home. He voluntarily produced two weapons (one of which was a .32 calibre pistol) and three boxes of .32 calibre steel jacketed bullets.
- Ballistics testing demonstrated that neither firearm was the weapon used to kill Mr Carlyle.
- The presence of bullets which were both of the same calibre and steel jacketed might, in the absence of any other evidence, have some importance. But there is nothing particularly suspicious about Mr Hitchen having that ammunition. It was ammunition that could be used in his .32 calibre weapon. They were Norma brand bullets but the ballistics expert could not say whether the bullets used to kill Mr Carlyle were Norma brand. There were at least two manufacturers which made bullets which had the same characteristics as those used to kill Mr Carlyle. And, of considerable significance, is the fact that Mr Hitchen voluntarily surrendered these weapons and ammunition. One might think this most unlikely if, as the prosecution theorises, Mr Hitchen had provided the defendant with the murder weapon.
The opportunity to kill
- It is an essential part of the prosecution case, and one which it must prove to the criminal standard, that the defendant was in the office at the time of Mr Carlyle’s death. It is the prosecution’s case that Mr Carlyle was murdered at some time after 10:23am on 13 April. That is the time of the last email sent by Mr Carlyle.
- The prosecution made much of the fact that the email sent by the defendant at 11:02am and emails sent by Ms Sinclair-Smith at 12:43pm, 1.27pm and 1:31pm had not been opened. It was argued that the earlier of those times marked the approximate time of the murder. That is, with respect, entirely speculative. It relies on an assumption that Mr Carlyle would have opened the defendant's email immediately or very soon after it had been received. But there was no need for him to open the email from the defendant when it arrived. He knew what it contained, he had discussed it with the defendant. Similarly, the other unopened emails do not necessarily indicate a relevant time of death.
- There was evidence that two people who lived nearby heard a gunshot at a time of about 1pm. Why, when four shots were fired, only one was heard could not be satisfactorily explained. It was submitted on behalf of the defendant that one of the shots might have been fired while the plant door, which was self-closing, was swinging shut. That may be the case but I do not need to decide it.
- The defendant told police that he had arrived at ATNET’s offices at about 10am and that Mr Carlyle was already there. He said that they had a discussion about a number of things, including the need for a diagram to demonstrate the proposed relationship between ATNET and Triangle Associates. That relationship was illustrated by the defendant on a whiteboard to Mr Carlyle. Mr Carlyle asked that it be provided to him in a form he could use and that gave rise to the email sent by the defendant at 11:02am. The defendant said he left the office at about 11:15am. He said he went to Mr Hitchen, then to Mr Strauss and then home at about 2pm.
- The defendant’s account is consistent with other unchallenged evidence or agreed facts. It would have taken about 10 minutes to drive from ATNET to Mr Hitchen’s house. The defendant’s mobile telephone records place him in that general vicinity at 11:29am. It would have taken about 25 minutes to drive from Mr Hitchen’s place to Mr Strauss’ home. On the best construction of the evidence for the prosecution, there was a period of about 30 to 45 minutes in which the defendant had an opportunity to murder Mr Carlyle, but there was a four hour period in which someone else could have done that. In combination with the other matters considered, a reasonable doubt must arise as to the defendant’s presence at the relevant time.
Was there a motive?
- The prosecution identified a number of matters which were said to demonstrate a motive for the defendant to kill Mr Carlyle.
- The existence of motive can be an important factual issue, particularly in a circumstantial case like this where the prosecution asks that guilt be inferred. If there is motive, then what might otherwise be inexplicable may become explicable.
- The prosecution first contended that the relationship between the defendant and Mr Carlyle had been deteriorating to an extent sufficient to provide a motive. I do not accept that. The material demonstrates that they had a number of disagreements about various aspects of the way in which ATNET should proceed with its projects, especially Insure-IT. But those disagreements were nothing more than one might expect from persons engaged in an enterprise with considerable pressure upon them and in which each saw the prospect of considerable success. The exchanges between them, when they became heated, were conducted by email and usually concluded by each party accepting that the other had been genuine and only sought success for the business.
- There were friendly exchanges of emails on the Friday and Saturday before Mr Carlyle’s death. Indeed, they were congratulating each other on the efforts each had made in their dealings with Triangle Associates.
- I do not accept that the relationship between the defendant and Mr Carlyle was one which was deteriorating or in any way acrimonious. In fact, the relationship was such that the defendant was dependent upon Mr Carlyle exercising his skills in marketing to procure the result which they both sought.
- Secondly, it was advanced that the defendant was aware of the personal correspondence between Mr Carlyle and Ms Sinclair-Smith and that he saw the proposed trip to the United States as simply a means by which they could get together. I do not accept that it has been established that the defendant was fully aware of all the exchanges between Mr Carlyle and Ms Sinclair-Smith. But even if he was, there is strong evidence to support a conclusion that he wanted Mr Carlyle to go to the United States.
- The defendant had worked hard to encourage Mr Dwyer to contribute to the cost of sending Mr Carlyle to the United States. Had he wished to prevent the trip taking place, it was entirely within his power to simply direct Mr Carlyle not to go and to ensure that ATNET did not pay for the travel costs.
- Thirdly, it was the prosecution case, until final addresses, that the defendant had deleted incriminating emails. This had been the approach taken by Detective Sergeant Austin and remained the view of investigators until a few days ago. It was claimed by the prosecution in its opening, that relevant files and emails from early April 1997 had been wiped or deleted. There was nothing to support that accusation. Those emails had not been deleted. They were where any competent analyst would expect them to be found on a computer system.
- Fourthly, it was said that the defendant benefited from Mr Carlyle’s death because ATNET was a beneficiary of a “Key Man” insurance policy. This was a policy which, on the death of either the defendant or Mr Carlyle, would provide a benefit to ATNET of $500,000. This was arranged at the instigation of both the defendant and Mr Carlyle. Although the policy was described as “fairly new at the time”, it was a policy which was ordinarily taken out for prudential reasons and was very common.
- 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.
- The prosecution has not demonstrated to the required standard all the elements necessary to constitute the offence of murder.
- Not guilty.
Unless otherwise noted, where I have used words describing the burden on the prosecution such as: prove, establish, demonstrate and the like, they are to be read as meaning “prove beyond reasonable doubt” and so on.
Peacock v The King (1911) 13 CLR 619 at 634 per Griffith CJ quoted in Barca v The Queen (1975) 133 CLR 82.
Shepherd v The Queen (1990) 170 CLR 573 at 578.
R v Baden-Clay (2016) 258 CLR 308 at 324; Peacock v The King (1911) 13 CLR 619 at 661 quoted in Barca v The Queen (1975) 133 CLR 82 at 104.
R v Baden-Clay (2016) 258 CLR 308 at 324 quoting R v Hillier (2007) 228 CLR 618 at 637.
R v Baden-Clay (2016) 258 CLR 308 at 324 citing R v Hillier (2007) 228 CLR 618 at 638.
Peacock v The King (1911) 13 CLR 619 at 634 per Griffith CJ.
This is a pseudonym.
This is a pseudonym. An order was made that the true name of this person, or anything able to identify her name, was not to be published.
Part X of the Bankruptcy Act 1966 (Cth) provides for a mechanism by which a debtor can enter into a "personal insolvency agreement" as an alternative to bankruptcy. In order to take advantage of those provisions, the debtor must satisfy a number of criteria including being insolvent at the time.
- Published Case Name:
R v Pentland
- Shortened Case Name:
R v Pentland
 QSC 231
04 Aug 2020