In his post on April 25, 2026, The Record and the Reality: What Transcripts Don’t Show in Criminal Appeal, STEVEN FENNELL argued that transcripts are an incomplete reconstruction of a trial. In this companion piece, he provides a cautionary tale from personal experience of what occurs when an appellate court doesn’t struggle with an incomplete record but actively adopts a mistaken narrative from the prosecution as part of its legal architecture.
I do not write this from abstract sympathy or armchair outrage; I write from direct experience of what happens when the apparatus we trust to correct trial error instead repeats the very errors it should be correcting. I was convicted on circumstantial evidence that, judged properly against the record, never met the required standard of proof.
The Queensland Court of Appeal’s reasons, however, reproduced a prosecutorial narrative about money taken to Lamb Island and the infamous “hammer” in a way that distorted the evidential landscape. The High Court ultimately set the record straight, but only after enduring the extra work and delay that should have been unnecessary.
This is what it looks like when an appeal court echoes the Crown rather than interrogates the defence. (Ed: as happened in Sue Neill-Fraser’s first appeal.) Appellate work is supposed to be careful, not cursory. Appeals are not literary exercises in matching rhetoric; they are forensic exercises in checking whether convictions sit properly on evidential bedrock. That is why courts have appeal books, transcripts and painstaking procedures: so judges can anchor their reasons to what actually happened in the courtroom.
In my case, a passage in the Court of Appeal’s reasons recited that I had told police I had taken “some of the $8,000” to the deceased’s daughter on Lamb Island. That detail is not peripheral in a circumstantial case. No by jingo, it feeds motive, opportunity and the plausibility of the Crown’s story. If the appellate analysis adopts that version of events, the entire inferential chain can be skewed.
What made the problem worse was not only the presence of the Lamb Island $8,000 line in the appeal reasons, but the close textual similarity between that passage and the Crown’s submissions. The appearance of similarity suggested, to many observers, that the appellate reasons had merely echoed prosecutorial framing instead of testing it against the transcript. That is being kind; it was cut and pasted verbatim. Cut and pasted verbatim from the prosecution’s submissions into the Appeals court reasons to dismiss my appeal.
The Crown later conceded before the High Court that the appeal‑book formulation was erroneous in detail. The High Court, therefore, had to compare the Court of Appeal’s reasons with the primary record, identify the mismatch, and rule that the appellate reasoning had been infected by factual errors. In short: an appellate court treated a mistaken narrative as part of its legal architecture, and only the nation’s highest court intervened to correct course.
This is the precise mechanism by which miscarriages persist. In a case without forensic linkage, juries rely on narrative coherence. Narrative coherence, a chain of small factual suppositions that, together, seem to point a finger. An appellate court that records or re‑frames one of those suppositions as established fact amplifies the problem. The Court of Appeal’s acceptance of the Lamb Island narrative and the weight it gave to the hammer evidence turned arguable inferences into the foundation for continued affirmance.
When the High Court later ruled the appellate reasons contained key factual errors, it effectively said: the Court of Appeal’s factual scaffold had been compromised. That admission matters because appellate courts are not supposed to compound trial error; they are supposed to spot it.
Let me be clear about the “hammer” issue. The High Court was blunt: the inferences drawn from the so‑called hammer were not the slam-dunk the Court of Appeal treated them as the lower court read the physical‑evidence narrative with a confidence the record did not support. Whether one likes my colloquialism that characterisation was “crap” the legal point stands: appellate deference to over‑confident inferences is dangerous in circumstantial cases.
Where physical evidence is equivocal or its provenance contested, an appellate court must resist the temptation to treat the most coherent story as the correct one. Instead, it must ask whether the jury, properly directed and considering only what the evidence supports, could have reached guilt beyond reasonable doubt. On that question, the High Court concluded the appellate affirmance could not stand.
The practical consequences for me were concrete and sustained. An erroneous appellate articulation delays final vindication, prolongs the period during which public and private reputations are sullied, and prolongs the personal and financial ruin that follows conviction.
Appeals that reproduce prosecutorial narration whether through inadvertent reliance on an imperfect appeal book, inattentive reading of the transcript or plain cognitive preference for a tidy story do not merely fail intellectually; they have human cost. The High Court’s intervention was necessary, but it cannot erase the years, the losses, or the reputational damage I endured while lower courts debated what the transcript actually said.
To critics who might call this accusation of appellate sloppiness inflammatory, I offer this technical clarification: the High Court did not allege judicial impropriety or deliberate copying. It found errors of fact in the Court of Appeal’s reasoning that materially infected the conclusion. That is worth repeating: the Court of Appeal’s reasoning materially that infected the conclusion but that refinement does not lessen the practical critique. Whether the appellate inaccuracies came from unconscious adoption of Crown narrative, hasty reliance on an appeal book summary, or some other source, the effect was the same: the defence’s side of the record was insufficiently reflected in reasons that mattered.
The system’s remedy – thoughtful, careful appellate checking – was skipped, and the system’s highest court had to pick up the slack.
What institutions, and practitioners should learn from this is straightforward and mundane: appellate judges must anchor reasons to the transcript; appeal books must be drafted with painstaking fidelity to the primary record; defence submissions must be forceful in identifying and isolating contested factual passages for correction; and appellate panels should not be seduced by narrative coherence at the expense of accuracy.
Small procedural habits like footnoting contested paragraphs to transcript page numbers, checking contested witness exchanges verbatim are not bureaucratic frippery; they are safety rails. Where those rails are absent, the machinery of appeal becomes more ceremonial than corrective.
There is a further institutional lesson about rhetoric and humility. Courts hear persuasive advocacy every day. The most persuasive story is not always the truest. An appellate court that absorbs the Crown’s phrasing without the discipline of transcript cross‑checking risks institutional capture by the stronger narrative. That is a risk we should treat seriously, especially in cases where the stakes include liberty and reputation.
The High Court in my case performed the remedial work, but only after the damage had been done. A system that allows appellate reasons to mirror prosecutorial narrative without disciplined verification invites repeated repeats of the same problem.
In the end, the Fennell episode is not merely one man’s grievance about an unlucky set of paragraphs. It is a cautionary tale about the practical consequences when appellate reasons stop being methodical and start being rhetorical.
The remedy is not more melodrama but more tediousness: more careful transcript reading, more explicit attribution in reasons, and a cultural expectation that appellate judges will double‑check, footnote, and correct not quietly absorb prosecutorial storytelling.
I was acquitted by the High Court; that justice was hard‑won. The system cannot rely on that expensive last resort as its primary safety valve. If the appeal courts cannot be bothered to read the record properly, then the cost will continue to be measured in lost years and irrevocably altered lives.
COMMENT
Andrew L. Urban
What’s the point of appeal courts that cannot prevent wrongful convictions being baked into the system? Almost all the cases on which we have reported over the past 13 years have appeal failures in common. EG: In the case of Marco Rusterholz, convicted of a double murder in Tasmania, the appeal judges agreed 3:0 that the circumstantial case did not prove guilt beyond reasonable doubt. So why did they dismiss the appeal?