One of the most closely watched High Court matters of 2016 is an application to appeal a Queensland Court of Appeal decision from December, concerning a high profile domestic homicide. In R v Baden-Clay [2015] QCA 265, the Queensland court (including the state’s new Chief Justice Catherine Holmes) rejected the Brisbane real estate agent’s complaints about the conduct of his homicide trial, but accepted his argument that the jury’s verdict of murder was unreasonable:

[T]here remained in this case a reasonable hypothesis consistent with innocence of murder: that there was a physical confrontation between the appellant and his wife in which he delivered a blow which killed her (for example, by the effects of a fall hitting her head against a hard surface) without intending to cause serious harm; and, in a state of panic and knowing that he had unlawfully killed her, he took her body to Kholo Creek in the hope that it would be washed away, while lying about the causes of the marks on his face which suggested conflict…

In consequence, the appeal against conviction must be allowed, the verdict of guilty of murder set aside and a verdict of manslaughter substituted. Counsel for the respondent should file and serve submissions as to sentence by 15 January 2016, with the submissions for the appellant to be filed and served by 22 January 2016.

Last week, Holmes CJ revisited the final sentence of that judgment on the application of Queensland’s DPP. In doing so, she addressed when a lower court should (and shouldn’t) change course in response to a planned High Court appeal.

At issue in last week’s application was whether Gerard Baden-Clay’s new sentence for manslaughter should be determined by the Court of Appeal now or only after the High Court proceedings have finished. DPP Michael Byrne QC gave two reasons in favour of delay. The first is that ‘there is a prospect of success which would mean that the sentence imposed is ultimately set aside with the conviction, so that time and effort are unnecessarily expended in the resentencing process’. This argument predicts that the DPP will overcome two significant burdens in the High Court:

• obtaining special leave to appeal, which requires that two or three High Court judges decide, after a brief oral hearing, that the appeal raises questions important enough for the High Court to intervene; and
• successfully appealing, which requires that a majority of five or seven High Court judges decide, after a full hearing, that the Queensland Court of Appeal was wrong to replace Baden-Clay’s murder conviction with a manslaughter conviction.

Chief Justice Holmes did not address the DPP’s prospects of success in the High Court; however, she acknowledged the ‘merit’ in the DPP’s concerns about engaging in a potentially futile resentencing process now and rejected the views of Baden-Clay’s counsel that ‘his client is entitled to know what sentence is to be imposed on him in respect of his conviction of manslaughter’, seeing ‘no real prejudice… in a delay of some months’. (The actual delay will depend on how far the matter progresses in the High Court, and may be anything from the few months until the special leave application is heard to, if leave is granted, the time it takes to schedule the appeal, hear it, reach a judgment and reschedule the resentencing – perhaps close to a year.)

A less mundane aspect of last week’s judgment was Holmes CJ’s reaction to Byrne’s other argument that ‘there is a prospect of public comment and a possible loss of public confidence if the sentence is set aside with the conviction.’ The Chief Justice responded:

I must say, I am unmoved by the applicant’s submissions as to the prospect of public comment and a loss of public confidence. If the conviction is set aside, it will simply mean that the High Court has taken the applicant’s view of the law, whatever that may be, which is an unremarkable result. Appeals are often successful. It does not mean that the administration of justice has suddenly fallen awry in some way, but that the view of the law taken by the highest Court in the land turns out to be different. And I think it’s an unattractive submission that this Court would act in some way contrary to what it might have done simply because of the prospect of public comment. I reject that.

The DPP’s submission and the Chief Justice’s response are directed in part to the intense media interest in the Baden-Clay matter and a surprising level of public criticism of last month’s Court of Appeal decision, which may also provide a backdrop to any involvement in the case by the High Court. Perhaps reflecting the different ways that the public views state and national courts, the High Court itself avoided similar vitriol over its intervention in favour of another high profile Queensland criminal defendant, Jayant Patel, in 2012.