News: Claim Baden-Clay judgment sets a ‘massive precedent’

R v Baden-Clay [2016] HCA 35 is one of the High Court’s most-watched judgments, at least by non-lawyers. Indeed, this morning’s announcement of the Court’s orders in its Canberra premises was live-blogged on at least two Brisbane websites, so readers at home knew of the outcome some 15 minutes before the Court posted its judgment summary on its website. The rather brief proceeding (including other judgments and a hearing in a current appeal) was attended by friends of Baden-Clay’s victim, who told the media:

The law has acknowledged what we, who were closest to her, knew from that very morning Allison went missing — that is — that she was murdered… Today’s decision brings an end to Gerard’s attempts to smear Allison’s name. If some were in doubt as to his true nature, his behaviour after Allison disappeared and during the trial must have removed that doubt.

All of these matters were established by the jury’s verdict, but in Australia’s criminal justice system, appeal courts can sometimes second-guess the jury. In today’s judgment, the High Court firmly second-guessed the Queensland Court of Appeal’s second-guessing and also closed off all regular avenues for future second-guessing in the courts.

But some lawyers commenting on the decision have attributed more to today’s decision. Baden-Clay’s lawyer told the media:

In this particular instance, the High Court applied the Weissensteiner dictum, that when an accused has particular knowledge they should explain what they know, if they know it,” Mr Shields said. “The consequences are massive, that is for an accused to make the decision whether to give evidence in their defence at their trial or not. Because if an accused doesn’t give evidence then they’re not subject to that forensic criticism…. It must affect every criminal trial throughout the Commonwealth. We have a hierarchal court system so the High Court decision that was handed down today is now in place and will affect trials that commence tomorrow.

It is certainly true that what the High Court says, goes, in all Australian courts, even when what it says is not crucial to its judgment. But that begs the question: what did the Court say, beyond its findings that Baden-Clay’s murder verdict ought to stand?

Peter Shields’s comments focus on the Court’s discussion of one of its own judgments, 1993’s Weissensteiner v R, where the Court upheld another Queensland jury murder verdict, largely because the accused gave no explanation in court for how he came to be alone on a boat that was owned by a missing couple. That ruling, too was seen as a likely major change in trial practice, but it didn’t play out that way. Rather, subsequent High Court judgments rejected attempts to apply Weissensteiner outside of its unusual facts and also seemingly rethought its appropriateness. Although today’s judgment finally found another instance where that judgment may apply, the Court’s discussion was something of an aside in the course of a comprehensive rejection of all of the Queensland Court of Appeal’s reasoning:

If it were truly the case that there was no evidence from the respondent as to the circumstances of his wife’s death, the application of the principles explained in Weissensteiner would have required consideration; and they were not adverted to by the Court of Appeal. But the respondent chose to give evidence. To say that the respondent’s evidence was disbelieved does not mean that his evidence could reasonably be disregarded altogether as having no bearing on the availability of hypotheses consistent with the respondent’s innocence of murder.

It is possible that any step of the High Court’s reasons – on circumstantial evidence, adversarial justice, the role of the jury, evidence of motive, and post-offence conduct – could emerge as a bellwether for the future of Australian criminal justice. But the Court certainly didn’t say that it was changing Australia’s criminal justice system, and it is entirely possible that the decision will have little effect beyond cases with similar, perhaps essentially identical, facts. If Baden-Clay follows the fate of Weissensteiner. then this decision will attract a brief flurry of attention in Australia’s courts, only to be largely forgotten until another odd homicide case makes it to the apex court.

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About Jeremy Gans

Jeremy Gans is a Professor in Melbourne Law School, where he researches and teaches across all aspects of the criminal justice system. He holds higher degrees in both law and criminology. In 2007, he was appointed as the Human Rights Adviser to the Victorian Parliament's Scrutiny of Acts and Regulations Committee.

3 thoughts on “News: Claim Baden-Clay judgment sets a ‘massive precedent’

  1. Interesting. When I read the judgment I thought the HCA were just stating the obvious- the accused gave evidence positively inconsistent with the theory that the Court of Appeal relied upon (the accidental killing theory) by denying all involvement; had the accused remained completely silent, that theory would have remained open. It has always been a known risk of the accused giving evidence, that the defence is then pinned down to the accused’s version of events.

    In any event, I’m glad the HCA clamped down on the appellate court substituting their view of the evidence for that of the jury which actually heard the case. It was an obviously poor call to rule that this was a case where it was not open to the jury to be satisfied beyond reasonable doubt, and a reminder of the reasons that we don’t let lawyers serve on juries- what seemed like a clear reasonable doubt to the appellate judges was clearly a loony shadow of a doubt to most of the population, and happily the HCA understood that.

    It reminds me of last year’s Fuller-Lyons case, actually, a completely different factual situation but once again a situation where an appellate court overturned a decision at first instance based on a speculative theory for which there was no evidence led at trial, and had to be corrected by the HCA.

    • Arky, I’m less firm on the obviousness of the HCA’s approach. You could equally say that the Court of Appeal’s view was the product of the narrowness of the prosecution case: the prosecution eschewed any claims of traditional motive (money) or a planned murder (which would have had credibility problems of its own) in place of an argument that Gerard killed Allison in a spur-of-the-moment decision during a fight. That type of argument always runs close to the line between murder and manslaughter, at least in a case such as this where there is no significant evidence as to cause of death. Even the scratches (that so clearly implicated GBC in the killing) also fit well, arguably better, with the manslaughter theory. And keeping silent was obviously never an option for GBC – regardless of legal directions, the jury would have read that (with good reason) as an admission of guilt. I’m pretty much in agreement with this post from the Social Litigator. This case was simply a hard one and precisely the sort of case where legal minds (particularly legal minds at different removes from the criminal justice coal face) will differ.

  2. Arky referred to the reasons lawyers don’t sit on juries. I am a lawyer and have sat on 3 juries in the District Court in Qld, all criminal cases. I am retired and not in possession of a practising certificate. Apparently that means I can sit on a jury. Strange to say the least. I did point this out to the Sherrif’s office at the outset .

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