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High Court’s take down of Court of Appeal in Baden-Clay: Too much, or just right?

The High Court has engaged in the kind of demolition job that lay people, and lawyers, can readily understand from a plain reading of its very short (16 page), unanimous decision.  There is no need to read between the lines.  According to the High Court, the Queensland Court of Appeal mucked it up when they overturned the verdict of members of a jury who decided Gerard Baden-Clay murdered his wife, Allison, substituting a verdict of manslaughter in its place.

Many of us cheer the outcome, because it feels like justice has finally won the day.  At last, the justice system has broken free from an apparently typical domestic violence loop, in which a murder charge becomes manslaughter after the killer persuades the court he was somehow ‘provoked’ by his now dead wife.  The James Ramage case, in which the killer walked free after serving eight years for the ‘provoked’ killing of his wife Julie, is a case in point.

Yet, is harsh criticism for the Court of Appeal deserved?  In this post, you are invited to be the judge.  No, you are not the reasonable bystander, nor even the Muppets’ hecklers.  Your task is to hold a person’s liberty in your hands.  What you decide may mean that the accused is in prison for (most) of the term of his natural life.

Because a reading of the Court of Appeal decision suggests they took this task very seriously, and were anxious that they had insufficient information to tell whether Gerard Baden-Clay’s conduct was intentional, or unintentional.

My very favourite hecklers

The Court of Appeal is not who you might think

The Chief Justice of the Queensland Court of Appeal is not a crusty old codger, unfamiliar with the workings of everyday life and thinking fondly of the good old days when ‘ladies’ had to sit in another part of the pub.

Chief Justice Catherine Holmes is Queensland’s first female chief justice, and she presided over this case in her first year in the role.  Holmes CJ served as a founding member of the Women’s Legal Service, was a part-time member of the Anti-Discrimination Tribunal and was counsel assisting the Forde Commission of Inquiry into Abuse of Children in Institutions in the 1990s.

In other words, this is not the CV of someone tone deaf to domestic violence issues or the ‘provocation’ point.

However, it is fair to say that in the wake of the High Court decision, social media has not been kind to Holmes CJ

The Court of Appeal decision

A review of the Queensland judgment reveals that it disposed of most of the grounds of appeal made on behalf of Baden-Clay, ruling against him.

There was really only one point that stuck.  The reasons are revealing, because they indicate a court’s indecision, in circumstances where there is no smoking gun.  How much could they infer about what really happened, without knowing exactly how Mrs Baden-Clay died?

Imagine that you are a judge, and there is a range of circumstantial evidence that has been brought to your attention, including that:

  • The accused had been having an affair, broke it off (which his wife knew about) and started it up again (which his wife did not know about)
  • The accused had promised his lover he would leave his wife by 1 July (but the lover did not believe this because he had a habit of not following through)
  • The accused and his wife were going to counselling
  • At the counsellor’s recommendation, the accused had agreed to devote 15 minutes every second day listening to his wife’s expressions of feelings about the affair or, as the High Court called it, “venting or grilling” (sounds like a terrible idea)
  • The accused was facing financial stress (although this was not the first time) – his friend said he was on the “bones of his arse
  • The accused became aware that his wife and his lover were likely to meet at a conference the next day, which his lover was angry about
  • The wife had gone missing
  • The accused had scratches on his face that experts agreed were consistent with scratches by fingernails
  • The accused said he had cut himself shaving
  • When the wife’s body was found on an embankment under a bridge some days later, there were plants entwined in her hair from her garden at home (so she could not have committed suicide)
  • Blood matching Mrs Baden-Clay’s DNA profile was found on the back wheel arch of the recently purchased family SUV, when the family agreed she had not sat in the back seat and the blood deposit could not otherwise be explained
  • The accused testified and admitted the affair but denied killing his wife
  • There was no apparent cause of death from the autopsy

The Court of Appeal agreed, as I think we all do, that the evidence is compelling that Gerard Baden-Clay killed his wife.  However, this was not a James Ramage case of alleged provocation, because Baden-Clay did not argue for provocation.  Rather, he simply said he did not do it, including testifying to this effect in the witness box.

So – accepting that Gerard Baden-Clay was the killer – the question for the Court was, in circumstances where no one knew what precisely happened to Mrs Baden-Clay, where it happened, how it happened or what caused it to happen, was this murder (intention to kill or cause grievous bodily harm?), or manslaughter (unlawful killing but without murderous intent?).

Adding to the conundrum was that the prosecution’s case did not involve any element of premeditation on the accused’s part.  True it is, Mrs Baden-Clay had a life insurance policy, but the Crown at trial disavowed any suggestion that the accused had killed her in order to benefit from it.

In other words, at a time when precision really matters, was there enough for a jury to infer that the intention was there, separate from whether or not Baden-Clay committed the deed itself?

We’ve all watched those television shows where motive matters.  Do the above circumstances show motive to kill someone intentionally, as distinct from a confrontation where things went terribly, but unintentionally, wrong?

The burden is on the prosecution to prove its case.  The onus of proof is the highest one of all, beyond reasonable doubt.  For all the right reasons, before you send someone to jail for much of the rest of his life, a judge will want to be very confident that the accused’s actions fell into the murder camp, and not the manslaughter camp.

Therefore, and having regard to the above, the impression one gains from reading the Court of Appeal judgment is that they just did not feel there was enough to deliver a murder verdict.  Call it an excess of anxiety about the implications of the task, if you will.

There was one potential, significant factor.  Baden-Clay later lied about the fact that he killed his wife.  He lied about the cause of the scratches on his face.  He lied when he said he didn’t do it.  And he failed to admit that he transported her body to under the bridge.  The question was, what to make of the lie?  Certainly, he had lied about the deed (that everyone accepted he had done).  But was this sufficient to show that he meant to do it?

The Court of Appeal said, No.  Post-conduct lies such as this were neutral.  They showed he killed her, but not that he intended to do it.  Accordingly, the jury should not have delivered a murder verdict, and it decided to substitute manslaughter.

The High Court disagreed – a lot

The High Court judgment reads a bit like, what kind of person could find that the accused had committed manslaughter?

“Motive, if proven, is a matter from which a jury might properly infer intention”. The Court of Appeal found that “there was no evidence of motive in the sense of a reason to kill.  The Court of Appeal accepted that “[t]he evidence of financial stress and the extra-marital affair suggested a context of strain between the couple which might well have culminated in a confrontation” but concluded that “it did not provide a motive or point to murder rather than manslaughter”. That was an error. (emphasis added)

The essence of the High Court’s position is that, Baden-Clay (and by inference his legal team) must live with the decisions they made at trial.  And perhaps they are right.

However, the tone of the High Court judgment has a level of certainty that the Court of Appeal judgment lacks, in circumstances where certainty and over-confidence bear an uneasy relationship in a criminal justice case.

The High Court overturned the Court of Appeal because:

  • The trial was conducted by both prosecution and defence as a case of “murder or nothing
  • Accordingly, the manslaughter hypothesis on appeal was new
  • Baden-Clay chose to testify and he denied killing his wife, thereby excluding the hypothesis that he unintentionally killed her
  • The accused’s counsel provided a document at trial listing four hypotheses for her death, and none of them included manslaughter: drowning, falling from a height to her death or to cause drowning, alcohol and/or sertraline toxicity, or the effects of serotonin syndrome

Serotonin syndrome (SS) is a group of symptoms that may occur following use of certain serotonergic medications or drugs. The degree of symptoms can range from mild to severe. Symptoms include high body temperature, agitation, increased reflexes, tremor, sweating, dilated pupils, and diarrhea.

  • The tactical approach of murder or nothing by the accused’s counsel, meant he accepted there was no suggestion Allison had fallen and hit her head on bricks or cement because there were no fractures on her head
  • The issues and available lines of argument were narrowed at trial
  • It was not unreasonable for the jury to conclude, on the whole of the evidence, that it tested credulity too far to suggest that his evident desire to be rid of his wife was fortuitously fulfilled by her unintended death
  • There were other relevant post-conduct matters that the Court of Appeal failed to consider, namely, Baden-Clay’s suggestion to his lover that she should “lie low” and his enquiry of her as to whether she had revealed the affair to the police – this anxiety could be seen as indicative that the affair and the killing were inter-related, and that the killing was intentional
  • If it be the case that no weapon was used, one should bear in mind the difficulty involved in killing a human being without the use of a weapon unless the act of killing is driven by a real determination to cause death or grievous bodily harm

The last point is curious, because the High Court criticized the Court of Appeal for its own unsubstantiated hypotheses, and yet ultimately sought to advance its own hypothesis (some form of strangling or suffocation), in circumstances where no one knows exactly how Allison Baden-Clay died.

Otherwise, the High Court’s judgment is a (continuing) lesson to counsel that you should be very careful how you run a case at trial because you must live with the consequences of this decision and not later change your mind.

It follows that Gerard Baden-Clay, having killed his wife, needed to admit this at trial and argue that her death was unintentional, if he wanted to contend for manslaughter.


The High Court’s decision makes for comfortable reading.  However, having now read it closely, so too does the Court of Appeal’s decision.

To this day, no one knows precisely how Allison Baden-Clay died, or how.

Both had to deal with the following critical question:

Was the conduct of Gerard Baden-Clay after he killed his wife (essentially his lies and attempts to conceal) those of a man who intentionally killed his wife?  Or were they the panicked reaction of a man who had unintentionally caused her death and then wanted to cover it up?

Perhaps the Court of Appeal erred by being too cautious to lock Gerard Baden-Clay away for a very long time. The jury had spoken, and the High Court reminds us that one should rarely interfere with the voice of our peers.

The High Court decision has been strongly applauded, and Allison Baden-Clay’s friends have been magnificent in making sure that Allison, the mother and friend, is known to us.  This is very much a human tragedy.

However, when we think about our justice system, and amidst continuing calls to ‘get tough on crime’, spare a thought for the decision makers.

Consider whether a justice system that is sometimes too cautious rather than too confident, is exactly the kind of justice system we want.




6 Responses to “High Court’s take down of Court of Appeal in Baden-Clay: Too much, or just right?”

  1. marie blanch

    Hi Natalie. Thanks for this analysis, it is very enlightening. I have a query about the role of defence counsel. Q: Given the defence team’s concession that there was enough evidence that Baden-Clay killed Allison, does this mean that in a roundabout way Baden-Clay was conceding that he did it … i.e. can a defence team make this kind of case without him agreeing to it? Or is it possible that he could be innocent as he testified under oath at his trial, and therefore there is some explanation not posited yet that would absolve him of his guilt (the “matinee jacket” of the Azaria Chamberlain case, for example).

    • Natalie Hickey

      Hi Marie, given that the accused testified ‘I didn’t do it’, a concession of ‘Okay I did’, simply would not do on appeal. Instead, his team trod a very fine line involving linguistic gymnastics. In doing so, they did not rule out your latter point.

      • Marie blanch

        Thanks. I have a family member insisting he is still possibly innocent. As you say it is difficult to argue he irrefutably is. Cheers.

  2. Sam

    Dear Natalie

    Love your blog, but your analysis is way off here. I suggest you re-read the HC decision because it is crystal clear that there was absolutely no flexibility within the law for the COA to make the decision they did. It is strange that you arrive at a 50/50 conclusion that both views are “comfortable reading” given how clear the law is – especially now after this decision!

    In any case, I recommend the following statements from their judgement for reading closely:

    – “In relation to the disposition of the case by the Court of Appeal, it is as well not to attempt to paraphrase their Honours’ reasons.”

    – “The Court of Appeal’s conclusion … was not based on evidence. It was mere speculation or conjecture rather than acknowledgment of a hypothesis available on the evidence.”

    – “The Court of Appeal should not have treated the case as one in which it was open to it to identify a hypothesis as to the circumstances of the death of the deceased on the basis that the respondent’s evidence could be disregarded as if it had not been given at all.”

    – “The issues and available lines of argument to be pursued were narrowed by the way the case was conducted at trial. That is commonplace. But it cannot be ignored. The hypothesis identified by the Court of Appeal was not open. Once that hypothesis is rejected, no other hypothesis consistent with guilt of manslaughter, but innocence of murder, has ever been identified at trial, before the Court of Appeal or in this Court.”

    – “…a court of criminal appeal is not to substitute trial by an appeal court for trial by jury. Where there is an appeal against conviction on the ground that the verdict was unreasonable, the ultimate question for the appeal court “must always be whether the [appeal] court thinks that upon the whole of the evidence it was open to the jury to be satisfied beyond reasonable doubt that the accused was guilty.””

    It is perhaps sad that even though the HC has made a such an incredibly loud and clear statement with this decision, legal analysts such as yourself still refuse to accept what is the law.

    • Natalie Hickey

      Hi Sam, thanks for reading the blog and taking the time to respond. I think my post sufficiently sets out my views but appreciate why you disagree.

  3. acm_ian

    it is not true that “noone knows how Alison died”. the killer knows, they just aren’t telling. so why should any murderer be able to get off on the basis of lack of evidence on the mode of death? the high court decision in this case appears to validate the jury’s ability to decide on the evidence presented, even if the murderer isn’t telling the truth. the world would be a worse place if destroying a body was sufficient to avoid a conviction.


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