On the 31st August 2016 the High Court delivered its’ much anticipated decision in the case of The Queen v Baden-Clay. Anyone who has opened a newspaper in the past 2 years knows about this Queensland case of the husband accused of having murdered his wife and then feigning distress in his public pleas for her to be found safe and well, until her body was found dumped under a bridge.
At his trial the Jury rejected his protestations of innocence from the witness box and found him guilty of murder. He then appealed against his murder conviction to the Queensland Court of Appeal. The Court of Appeal decided that the murder conviction should be set aside and replaced with a conviction for the lesser charge of manslaughter. The reason the Ocurt of Appeal did this was because it considered that the Jury ought not have been satisfied beyond reasonable doubt, on the available evidence, that when he killed his wife Mr. Baden-Clay intended to kill or cause her grievous bodily harm. In particular, the Court of Appeal accepted his lawyers’ submission, made for the first time on appeal, that the prosecution had not excluded the possibility that the respondent had struck his wife in the course of a struggle and that she had died as the result of a fall, or in some other manner, that did not involve an intent on his part either to kill her or to cause her grievous bodily harm. This reasoning by the Court of Appeal raised more than a few eyebrows in legal circles (and the ire of the public) given that during the trial Mr. Baden-Claay had not argued in his defence that he had killed his wife without meaning to do so during an argument, rather he simply said that he didn’t do it. It seemed a bit rich to many that on appeal he would have the gall to then argue that even if he did do it he didn’t mean to, and that the jury should have seen it this way too despite his blanket denials of having harmed his wife – it seemed even richer that the Court of Appeal accepted this argument.
The High Court found it all too rich for its’ stomach too, and overturned the Court of Appeal decision and reinstated Mr. Baden-Clay’s murder conviction. Although worded in polite legal language it is obvious that the High Court’s judgment in the case of The Queen v Baden-Clay represented the legal equivalent of a “smack down” to the Queensland Court of Appeal. As the High Court said:
“The Court of Appeal’s conclusion to the contrary was not based on evidence. It was mere speculation or conjecture rather than acknowledgment of a hypothesis available on the evidence. In this case, there was no evidence led at trial that suggested that the respondent killed his wife in a physical confrontation without intending to kill her. There were “no positive proved facts from which the inference” drawn by the Court of Appeal could be made.”
“The Court of Appeal appears to have reasoned that the respondent’s evidence could be disbelieved by the jury, as it plainly was, so that there was no evidence at all in relation to the hypothesis. 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. His evidence was important, even if it was disbelieved, because it was open to the jury to consider that the hypothesis identified by the Court of Appeal was not a reasonable inference from the evidence when the only witness who could have given evidence to support the hypothesis gave evidence which necessarily excluded it as a possibility.”
The High Court also emphasised the importance of the role of the Jury in a criminal trial saying:
“It is fundamental to our system of criminal justice in relation to allegations of serious crimes tried by jury that the jury is “the constitutional tribunal for deciding issues of fact.” Given the central place of the jury trial in the administration of criminal justice over the centuries, and the abiding importance of the role of the jury as representative of the community in that respect, the setting aside of a jury’s verdict on the ground that it is “unreasonable” within the meaning of s 668E(1) of the Criminal Code is a serious step, not to be taken without particular regard to the advantage enjoyed by the jury over a court of appeal which has not seen or heard the witnesses called at trial. Further, the boundaries of reasonableness within which the jury’s function is to be performed should not be narrowed in a hard and fast way by the considerations expressed in the passages from the reasons of the Court of Appeal explaining its disposition of the appeal.”
The High Court’s decision was not interesting to lawyers as revealing some new interpretation or application of the criminal law – rather it was a clear re-statement of the law as it has always been, and a timely reminder to all lower appeal Courts that they should not replace a Jury verdict with their own opinion unless there has been a clear and serious miscarriage of justice.