Neil Andrew Pentland found not guilty of murder of Philip Carlyle

In 1996, Neil Pentland and his wife Dianne set up a company called ATNET Pty Ltd. Pentland was a director and the secretary of the company. The shares were held by him and his wife. 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.

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 weapon used to kill Mr Carlyle has never been found.

The indictment was presented in April last year.

The Prosecution case was circumstantial, relying on evidence which included the following:

• • ● a number of heated disagreements between Pentland and Carlyle about various aspects of the way in which ATNET should proceed with its projects
• ● Pentland feeling very annoyed when a self-described “insolvency specialist” named Hitchen was engaged by Carlyle after he had lent Carlyle $6,000

• ● three threatening emails or messages sent to, or for the attention of, Mr Carlyle. One was sent from the Qantas Club lounge at Sydney airport when Pentland was at Sydney airport
  • • ● an “internet affair”Carlyle had with a married woman named Ms Sinclair-Smith that the Prosecution contended Pentland was incensed by
    • ● The evidence of Dagmar Peyrac, Hitchen’s partner from 1999 until 2003 to the effect that Hitchen had a BRNO brand pistol in a box, which was taken with Hitchen and Pentland when they went for a drive on one occasion.

   

  RELEVANT LAW

  Basic principles

  At common law, a person charged with a criminal offence has the right to be presumed innocent until proved guilty according to law (Woolmington v DPP [1935] AC 462; Howe v R (1980) 32 ALR 478). The presumption is not that the accused is not guilty, it is that the accused is innocent (R v Palmer (1992) 64 A Crim R 1).

  ‘Beyond reasonable doubt’ is the standard of proof that is applied to criminal proceedings at trial. To comply with this standard a court must not find an accused person guilty unless it is satisfied beyond reasonable doubt that the accused committed the offence. In Miller v Minister of Pensions (1947) 2 All ER 372 at 373-374, it was said that:

“Proof beyond a reasonable doubt does not mean proof beyond the shadow of a doubt. The law would fail to protect the community if it admitted fanciful possibilities to deflect the course of justice. If the evidence is so strong against a man as to leave only a remote possibility in his favour, which can be dismissed with the sentence ‘of course it is possible but not in the least probable’ the case is proved beyond reasonable doubt, but nothing short of that will suffice.”

• Judge-only trials

  Section 615B of the Criminal Code (Qld) provides that:

  615B Law and procedure to be applied

  (1) In a trial by a judge sitting without a jury, the judge must apply, so far as is practicable, the same principles of law and procedure as would be applied in a trial before a jury.

  (2) In a trial by a judge sitting without a jury, the judge may view a place or thing.

  (3) If an Act or the common law—

  (a) requires information or a warning or instruction to be given to the jury in particular circumstances; or

  (b) prohibits a warning from being given to a jury in particular circumstances;

  the judge in a trial by a judge sitting without a jury must take the requirement or prohibition into account if the circumstances arise in the course of the trial.

  Offence of murder

  Section of 302 the Criminal Code (Qld) provides that:

  “if the offender intends to cause the death of the person killed or that of some other person or if the offender intends to do to the person killed or to some other person some grievous bodily harm… is guilty of “murder”.”

Justice Martin found that Pentland was not guilty for the following reasons:

• ● the lack of evidence Pentland was the source of the threatening messages
• • ● Pentland’s belief that his business success was imminent and depended on Carlyle’s skills
  • • ● There were friendly exchanges of emails on the Friday and Saturday before Mr Carlyle’s death.
      • ● 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

      Given the paucity of incriminating evidence against Pentland, one wonders why he was charged at all. The evidence suggested that there were a number of people who disliked Philip Carlyle and who may have had a motive to murder him. Martin J’s judgment suggests it would have been hard to conclude on the balance of probabilities that Pentland was the killer, as it seems inherently unlikely. The Prosecution does not appear to have come close to achieving a conviction.

      An interesting aspect of the case is that Pentland was charged so long after the murder. As Martin J noted, this considerable delay in bringing the charge resulted in the memories of the witnesses fading, the defendant not being able to test the veracity of certain allegations, and some important evidence no longer being available. This denied Pentland the capacity to make useful enquiries at the relevant time, but it also meant that some of the Prosecution evidence, particularly the testimony of Ms Peyrac, was found to be unreliable. For these reasons, this case is a good example of the general undesirability of trials being conducted many years after the events in question.