The High Court has allowed an appeal against a decision of the QCA to substitute a conviction of murder for one of manslaughter on the basis of the jury’s verdict being reasonable. Baden-Clay was found guilty of the murder of his wife by a jury after a trial at which he gave evidence that he did not fight with her, kill her or dispose of her body. On appeal, the QCA held that while the evidence supported a finding that Baden-Clay had killed his wife, it did not allow it to be satisfied beyond reasonable doubt that he had intended either to kill her or cause her grievous bodily harm, and specifically that the prosecution had not excluded the hypothesis that Baden-Clay had fought with his wife without intent to kill or cause grievous bodily harm and in the course of that struggle she had fallen and died.

The Court (French CJ, Kiefel, Bell, Keane and Gordon JJ) unanimously allowed the appeal, holding that it was open to the jury to conclude that the respondent killed his wife with the intent to kill or her or cause her grievous bodily harm, and that the QCA erred in denying in concluding that it was unreasonable for the jury to make that finding because the hypothetical situation of a fight that did not involve an intention to kill or cause grievous bodily harm was not available on Baden-Clay’s own evidence that there was no fight. The prosecution’s burden was to exclude all reasonable hypotheses consistent with innocence (at [50]). Where an accused with knowledge of facts remains silent, hypotheses consistent with innocence may cease being reasonable in the absence of evidence if that evidence, if it exists, must be within the knowledge of the accused (at [50], and see Wiessensteiner v The Queen [1993] HCA 65). In this case, however, the accused was not silent but rather gave evidence that not only did not support the hypothetical used by the QCA, but was inconsistent with that scenario, and thus was not available on the evidence given at trial (see at [52]–[64]). Turning to whether it was open to the jury on the whole of evidence to convict Baden-Clay, the Court noted that the Court of Appeal appeared ‘not to have considered and weight all of the circumstances established by evidence at trial’ regarding possible motives (at [70], and see [67]ff), specifically that Baden-Clay had promised to leave his marriage, that he could not afford to divorce his wife, and that his ongoing affair might be revealed (at [71]). Further, the QCA did not consider the evidence of post-offence concealment and lies to the police (at [72]ff). Overall, it was open to the jury to come to the conclusion it did on the basis of the whole of the evidence.