This article was written by Justin McDonnell, Alison Black & Madeline Cameron Wardleworth.
Today, the High Court delivered its judgment in the high profile case The Queen v Baden-Clay. In a unanimous joint judgment of Chief Justice French and Justices Kiefel, Bell, Keane and Gordon, the Court allowed the Crown’s appeal. In doing so, the High Court overturned the Queensland Court of Appeal’s judgment that it was open to the jury to convict Mr Baden-Clay of his wife’s manslaughter. The jury’s original conviction of murder is restored.
20 April 2012
Mrs Allison Baden-Clay was reported missing by her husband, Mr Gerard Baden-Clay. Mr Baden-Clay called his mistress and advised her to “lay low”.
30 April 2012
Mrs Baden-Clay’s body was found on a bank of the Kholo Bridge Creek, 13 kilometres from the marital home. A likely cause of death was not able to be ascertained via autopsy.
Mr Baden-Clay was charged with Mrs Baden-Clay’s murder. The Crown case was that he killed his wife on the night of 19 – 20 April 2012, following an escalation of pressures he felt due to financial stress and his extra-marital affair. His mistress had been upset with him about a seminar that both she and Mrs Baden-Clay were to attend on 20 April 2012.
Mr Baden-Clay’s evidence
Mr Baden-Clay told police that he slept through the night of 19 April 2012, but testing of his mobile phone indicated that it had been placed on a charger adjacent to his bed at 1:48AM on 20 April 2012. Mr Baden-Clay gave evidence that small cuts and abrasions on his cheeks were attributable to having shaved hurriedly on the morning of 20 April 2012. Three experts gave evidence that one set of abrasions was instead likely caused by fingernails.
Supreme Court finding
A jury found Mr Baden-Clay guilty of Mrs Baden-Clay’s murder on 15 July 2014 and Justice Byrne of the Supreme Court of Queensland sentenced him to imprisonment for life. Mr Baden-Clay appealed against the conviction.
Queensland Court of Appeal finding
In a unanimous decision, Chief Justice Holmes and Justices Fraser and Gotterson of the Queensland Court of Appeal allowed Mr Baden-Clay’s appeal and downgraded the jury’s murder verdict to manslaughter. Their honours:
- held the jury’s verdict was unreasonable;
- found that the evidence did not allow the jury to be satisfied that he intended either to kill Mrs Baden-Clay or cause her grievous bodily harm; and
- accepted Mr Baden-Clay’s submission, made for the first time on appeal, that the prosecution had not excluded an alternative hypothesis that Mrs Baden-Clay could have died in a manner that did not involve an intent on Mr Baden-Clay’s part to kill her, or cause her grievous bodily harm. This would support a manslaughter conviction.
High Court of Australia finding
The Crown was granted special leave to appeal to the High Court on 12 May 2016. The appeal was heard on 26 July 2016. The Court reinstated the jury’s murder verdict, making the following observations.
- Mr Baden-Clay had run a different case at trial
- He denied that he had killed his wife. He had gone to bed, woke up to find her missing and had gone searching. The Trial Judge asked his counsel if there should be a direction to the jury that the conduct did not prove an intentional killing. The response was “it’s not our contention”. The defence produced a document that gave 4 possible scenarios – drowning; falling from a height to cause death or drowning; alcohol or sertraline toxicity; or the effects of serotonin syndrome leading to a fall or drowning. The accidental killing one was not one. On his evidence, he was not there when she died.
- Mr Baden-Clay’s evidence narrowed the range of possible hypotheses
- The Court of Appeal decision was not based on the evidence. It was mere speculation or conjecture. There was no evidence of a confrontation with the wife without an intention to kill her. The jury was entitled to convict on the charge of murder based on the whole of the evidence.
- Mr Baden-Clay’s evidence excluded the possibility of the Court of Appeal hypothesis
- The Court of Appeal’s alternative hypothesis was contrary to the evidence Mr Baden-Clay had given. It was also never put to the jury. It was not part of the 4 hypotheses put forward by the defence. No hypothesis involved Mr Baden-Clay playing any role.
- Mr Baden-Clay’s lying did not entitle the jury to disregard his evidence
- Where a jury is entitled to find that the defendant is lying, his evidence is not to be disregarded entirely as though it was never given at all. This evidence is not neutral, and a jury is entitled to consider the defendant’s lies towards the issue of intent. On this basis, the Court of Appeal’s alternate hypothesis was not open on the facts.
- The Court of Criminal Appeal is not to substitute a trial by appeal court over trial by jury
- It was open to the jury here to rationally conclude that Mr Baden-Clay killed his wife and did so with intent to either kill or cause grievous bodily harm. It was open to the jury to take into account Mr Baden-Clay’s post death concealment of his affair, his denials to police, his suggestion that Ms McHugh lie low etc.
The upshot is that the High Court has reiterated the primacy of the jury function. They have also signalled that defendants will be held to the cases they ran at trial and appellate courts should be wary of hypotheses that are contrary to the evidence given at trial.