The Crown v Gerard Baden-Clay, 25th June - Trial Day 10, Week 3

[Makara]

I realise most people have gone to bed now, but maybe some will read in the morning.

One thing I have been wondering is the way to define or determine 'intent' from the legal point of view. I believe that in the early days of WS and this case, we discussed this, in terms of what was an intention to kill, even if in the heat of the moment.

Even if you didn't premeditate a murder, you could still have an intent to kill, an intention formed within a short space of time, not a planned, longer term space of time. That is my view, and would be interested to discuss.

I feel that sometimes the two things are confused, and conclusions are formed that there was no intent to kill if there was no premeditation.

But if you get angry at someone, you can, perhaps over the space of an hour or so, start to despise that person for what they represent, for what they perhaps highlight in you that you don't want to see, for the difficulties they cause you because of the barriers they present to you living your life the way you want, so you decide in that short period to wipe out what is before you. As a quick fix, maybe with heightened emotions, yes, you decide you want to eliminate them, and you do. Then you realise the horrible consequences of this, and you may even regret it.

But does that mean the killing was an accident, and that there was no intent?

BBM: It is still classed as intent and you'd be looking at a murder charge. Say for example one day you snap and grab someone around the throat and you're squeezing and squeezing hard. You know what you're doing can have a damaging and also fatal effect on that person. They're fighting you off but you just keep squeezing. You have the choice to stop what you're doing right up until the person takes their last breath. And then it's too late. You had the intent to hurt this person knowing full well that you may well kill them but you didn't stop. You had a choice to stop or keep choking. You chose the latter. That is classed as intent.

 

[Makara]

oh my god .. I forgot that QLD still has the unsworn statement thingy!! or does it??

Not according to this Trooper.

601. The Present Law. An unsworn statement is a statement made by an accused person, setting out the accused’s version of the facts, but which is not on oath and not subject to cross-examination.[517] Retention of the right to make an unsworn statement continues to be a matter of considerable controversy.[518] It has been abolished in Western Australia, Queensland, the Northern Territory (1984) and South Australia (1985), but it is retained in the other States and the Australian Capital Territory. Whether or not unsworn statements are retained generally, there is a question whether special provision needs to be made for unsworn evidence in the case of Aboriginal defendants with difficulties of language and comprehension, who experience special difficulties in giving evidence and in cross-examination.

BBM.

http://www.alrc.gov.au/publications/23. General Issues of Evidence and Procedure/unsworn-statements

 

[itsthevibe]

Thank you very much itsthevibe. It truly was nail biting stuff this afternoon wondering what exactly was going on in court. You've explained it extremely well without letting the cat out of the bag so to speak.

I just posted a link ^upthread^ in regard to GBC taking the stand tomorrow.

What are the odds do you think? I'd place a 50/50 bet at this stage but I'm thinking he may just be stupid enough to do it. Hope so. :jail:

I don't know what i think the chances are of GBC testifying. I suppose there is a possibility that if they are not at all confident about him getting a not guilty verdict for murder, that he could testify and make a shock admission that he accidentally killed her and then covered it up due to being scared that he would be accused of doing it deliberately. He could say they argued, for some reason they ran out into the carport, either to avoid disturbing the children or due to Allison scratching his face in anger and him running out of the house away from her, that she ran after him, he pushed her and she fell and died from bleeding to the brain. She didnt have a cracked skull so that isn't an option.

But it would be risky, you'd really have to have your story straight.

Alternatively, he could take the stand anyway and maintain his complete innocence. But not sure what that would achieve as he hasn't had a good showing so far in public appearances during Allison's disappearance.

I think the thing is - despite my feeling the prosecution case is not as strong as expected, I also dont feel the implications of suicide have come up very strongly, and the idea that someone else killed her doesn't seem to be in the mix anymore.

What I think will be interesting is whether the Defence will call any further witnesses of their own, and if so, what line will the questions take.

 

[Trooper]

I realise most people have gone to bed now, but maybe some will read in the morning.

One thing I have been wondering is the way to define or determine 'intent' from the legal point of view. I believe that in the early days of WS and this case, we discussed this, in terms of what was an intention to kill, even if in the heat of the moment.

Even if you didn't premeditate a murder, you could still have an intent to kill, an intention formed within a short space of time, not a planned, longer term space of time. That is my view, and would be interested to discuss.

I feel that sometimes the two things are confused, and conclusions are formed that there was no intent to kill if there was no premeditation.

But if you get angry at someone, you can, perhaps over the space of an hour or so, start to despise that person for what they represent, for what they perhaps highlight in you that you don't want to see, for the difficulties they cause you because of the barriers they present to you living your life the way you want, so you decide in that short period to wipe out what is before you. As a quick fix, maybe with heightened emotions, yes, you decide you want to eliminate them, and you do. Then you realise the horrible consequences of this, and you may even regret it.
But does that mean the killing was an accident, and that there was no intent?

BBM prisons are full of people who regret deeply those heightened emotions , those thoughts of the quick fix, and the realisation of the horrible consequences.. it comes with the territory..

'you decide in that short period to wipe out what is before you.. '

its that decision that forms intent under the laws we live by. Concrete, demonstrated , calculated ( whether it was 20 seconds or 20 years of calculation ) intent.

 

[Trooper]

Not according to this Trooper.

601. The Present Law. An unsworn statement is a statement made by an accused person, setting out the accused’s version of the facts, but which is not on oath and not subject to cross-examination.[517] Retention of the right to make an unsworn statement continues to be a matter of considerable controversy.[518] It has been abolished in Western Australia, Queensland, the Northern Territory (1984) and South Australia (1985), but it is retained in the other States and the Australian Capital Territory. Whether or not unsworn statements are retained generally, there is a question whether special provision needs to be made for unsworn evidence in the case of Aboriginal defendants with difficulties of language and comprehension, who experience special difficulties in giving evidence and in cross-examination.

BBM.

http://www.alrc.gov.au/publications/23. General Issues of Evidence and Procedure/unsworn-statements

thankyou Makara.. * sweating buckets there , for a very long 5 minutes,

 

[itsthevibe]

BBM: It is still classed as intent and you'd be looking at a murder charge. Say for example one day you snap and grab someone around the throat and you're squeezing and squeezing hard. You know what you're doing can have a damaging and also fatal effect on that person. They're fighting you off but you just keep squeezing. You have the choice to stop what you're doing right up until the person takes their last breath. And then it's too late. You had the intent to hurt this person knowing full well that you may well kill them but you didn't stop. You had a choice to stop or keep choking. You chose the latter. That is classed as intent.

Yes, I totally agree. But is there something in law about 'the heat of the moment" which comes into it, like it is saying you are not able to think it through properly or something?

 

[Trooper]

Yes, I totally agree. But is there something in law about 'the heat of the moment" which comes into it, like it is saying you are not able to think it through properly or something?

'heat of the moment' as in crime passionale?? or provocation?


in this particular case, it would be Alison who would be deemed to be provoked, under the evidence tabled..

and since Gerard wasn't that passionate about Alison.... given the evidence presented... ..


'heat of the moment ' stuff starts to nibble at the edges of self defence, . merges imperceptibly with some element of being in imminent danger of death yourself and reacting to that position.. .... mere anger and rage wont cut it. There has to be substance and the kind of shared common premise that a rational person would get very heated, murderously heated too.

 

[Makara]

I don't know what i think the chances are of GBC testifying. I suppose there is a possibility that if they are not at all confident about him getting a not guilty verdict for murder, that he could testify and make a shock admission that he accidentally killed her and then covered it up due to being scared that he would be accused of doing it deliberately. He could say they argued, for some reason they ran out into the carport, either to avoid disturbing the children or due to Allison scratching his face in anger and him running out of the house away from her, that she ran after him, he pushed her and she fell and died from bleeding to the brain. She didnt have a cracked skull so that isn't an option.

But it would be risky, you'd really have to have your story straight.

Alternatively, he could take the stand anyway and maintain his complete innocence. But not sure what that would achieve as he hasn't had a good showing so far in public appearances during Allison's disappearance.

I think the thing is - despite my feeling the prosecution case is not as strong as expected, I also dont feel the implications of suicide have come up very strongly, and the idea that someone else killed her doesn't seem to be in the mix anymore.

What I think will be interesting is whether the Defence will call any further witnesses of their own, and if so, what line will the questions take.

It's ultimately GBC's decision if he takes the stand in the morning. His legal counsel can advise him not to but they are employed by him. He can go against their advice is he so chooses. And I sincerely hope he does!

If GBC got up and stated that he pushed Allison during an argument and she died as a result, he would then have to explain why he dumped her body. Why didn't he try to seek help instead of secreting her dead body under a bridge and knew full well where she was while hundreds of people were searching for her. He'd be convicted of murder.

I think if he took the stand and stated he was totally innocent, the prosecution would have field day with him. A murder conviction would be the result I would think.

I've been wracking my brain as to who the defence could call. No-one comes to mind unless they want to bring in some of their own forensic experts etc., which I think would be stupid at this stage.

 

[itsthevibe]

vibe , a fabulous post... much appreciated, nothing obtuse about it, perfectly clear, and exquisitely detailed..

it can be shocking indeed when the law argues with the law... its like a parallel universe at times and at others like a good volley at tennis..

I presume your shock at the Prosecution declaring was shared among your fellow attendees?? oh how I would love to be there.. * rabid moment of pure envy* ..

thanks again .

I have been wanting to attend the court for the last couple of weeks, but some planned time off work didn't eventuate. Finally only got there for the Wednesday afternoon. I was disappointed thinking I've missed most of everything, but what I experienced this afternoon was certainly an eye-opener.

I don't know about my fellow attendees, it depends on their expectations I guess. But I was in the overflow room and everyone clapped in that room when the Judge declared that he would not grant the Defences submission.

As far as my shock, I cant really explain why without revealing things. Just very different to what I expected.

I sort of feel the trial has been quite tame and disappointing compared to what I expected, but I now do wonder whether the Crown Case is stronger than I thought.

On the other hand, one thing I keep reminding myself is that the jury are new to this, most have probably not followed much of the case before, so all of this evidence is very new, and they only have a short time for it to all sink in. Thinking back to the early days of this thread on Websleuths, there were a lot more of us who were uncertain about what may have happened to Allison, but over time as facts were discussed and analysed, and clarifications made, so many more people became clearer about what they thought happened, and about GBC's guilt. But the jury haven't had the luxury that we have, in a sense.

 

[Makara]

Yes, I totally agree. But is there something in law about 'the heat of the moment" which comes into it, like it is saying you are not able to think it through properly or something?

You mean like diminished responsibility?

This link will explain to you a whole lot better than I can right now.

What constitutes the crime of murder? The basic elements of murder

http://www.findlaw.com.au/articles/4385/what-constitutes-the-crime-of-murder-the-basic-ele.aspx

 

[Trooper]

It's ultimately GBC's decision if he takes the stand in the morning. His legal counsel can advise him not to but they are employed by him. He can go against their advice is he so chooses. And I sincerely hope he does!

If GBC got up and stated that he pushed Allison during an argument and she died as a result, he would then have to explain why he dumped her body. Why didn't he try to seek help instead of secreting her dead body under a bridge and knew full well where she was while hundreds of people were searching for her. He'd be convicted of murder.

I think if he took the stand and stated he was totally innocent, the prosecution would have field day with him. A murder conviction would be the result I would think.

I've been wracking my brain as to who the defence could call. No-one comes to mind unless they want to bring in some of their own forensic experts etc., which I think would be stupid at this stage.

BBM the thing is.. that Gerard has no expertise in deciding who is dead and who isn't... Alison may not have been dead when he dropped her in the mud.. I know this is almost too terrible to consider, but it's only the persons word, I say its Gerard, who buried ,abandoned, hid the body, who assumed that Alison was dead.. she may very well have been and its more likely that she was, but it isn't a certainty. Paramedics, even morgue attendants have been surprised by those appearing dead who show a sign of life.

She may have been dying.. his silence assured her death.. This is a position a prosecutor can argue, and it seams in with the interfering with a corpse at a different location to her presumed death. The reason for the two different locations is most likely that up until her transportation along the road to the Kholo Bridge, dead, dying perhaps, it could be argued that the killer was taking her to a hospital or some place of medical assistance.. its when the killer stops at the Kholo bridge and unloads the body that it is definitely a case of interfering with a corpse..

not pleasant , I know. Its late and black thoughts over take one.

 

[itsthevibe]

BBM the thing is.. that Gerard has no expertise in deciding who is dead and who isn't... Alison may not have been dead when he dropped her in the mud.. I know this is almost too terrible to consider, but it's only the persons word, I say its Gerard, who buried ,abandoned, hid the body, who assumed that Alison was dead.. she may very well have been and its more likely that she was, but it isn't a certainty. Paramedics, even morgue attendants have been surprised by those appearing dead who show a sign of life.

She may have been dying.. his silence assured her death.. This is a position a prosecutor can argue, and it seams in with the interfering with a corpse at a different location to her presumed death. The reason for the two different locations is most likely that up until her transportation along the road to the Kholo Bridge, dead, dying perhaps, it could be argued that the killer was taking her to a hospital or some place of medical assistance.. its when the killer stops at the Kholo bridge and unloads the body that it is definitely a case of interfering with a corpse..

not pleasant , I know. Its late and black thoughts over take one.

Horrific to think of, but a point raised which hasn't really been highlighted much to date. I certainly hope the Prosecutor does highlight this possibility if required. GBC has transported her and he is not a doctor or an expert in determining that she is dead and unable to be revived, so as you say he assures her death when he dumps her - when there could have been a chance she might have been able to be revived! If he had accidentally killed her and it was a genuine accident and he regretted it terribly, he would have tried to revive her, perhaps called an ambulance in the hope she could be revived, desperately trying to save her. As you say people have been brought back, even though appearing not to be breathing, and not to have a pulse.

 

[Cattail]

One of the first things the jury should do is decide on the evidence if Allison was killed by someone or died by some other means. The coroner said he was satisfied she did not die of natural causes, which I presume, and Doc may expand on this and correct me if I am wrong, that she didn't have a heart attack for example. If they are convinced someone did kill her, they don't have to know the exact cause of death which of course is not known except to the person who killed her or of course anyone he told, but they have no evidence from any such persons. They do have evidence about what did not or was unlikely to have caused her death. They can still convict GBC if they believed he killed her without knowing how.



So it's not damaging as such to the prosecutions case, it's just how it is and the prosecution were upfront about an undetermined cause of death in the opening statement. Of course if say strangulation or suffocation had been determined as the cause of death, then the trial would have only taken 2 weeks as the depression/suicide questions would have been irrelevant. So a lack of a cause of death does make it harder to prove she was murdered but when taken into account with where she was found, a murder finding by the jury may not be difficult for them. Then the next step is for them to decide on the evidence if GBC killed her. They can look at the likelihood of someone else killing her in terms of motive and opportunity.







Yes I do think that and nearly mentioned it in my post. Again it's distracting for the jury and there may be many reasons he crashed.

Thanks Alioop

 

[Kimster]

http://www.bunspace.com/static/photobucket/2183/AlienCoffee.gif

 

[Cattail]

Googling 'taking the 5th' because mumma bear doesn't understand it doesn't wash either. Surely if the mother says, hmmm what is 'taking the 5th mean' they would just tell her. Don't get me started on 'self incrimination'. Let's just say that the family may be members of local parish, but they certainly aren't members of MENSA.

This is how Gerard explained self incrimination: Mumma, just say Alison went missing tomorrow and the police suspected I was involved, during the interview I might accidentally say something about how I cut myself shaving after disposing of Allison's body.' That is an example of self incrimination Mumma. So, I have to be careful what I would say to them if Allison ever went missing. Do you understand now Mumma?

Maybe they knew what taking the 5th implies but not what the 5th technically is, and they were looking that up.

TBH that makes more sense to me than for him to have looked it up for himself, as everyone knows it is a US thing and wouldn't apply to him.

 

[Cattail]

I realise most people have gone to bed now, but maybe some will read in the morning.



One thing I have been wondering is the way to define or determine 'intent' from the legal point of view. I believe that in the early days of WS and this case, we discussed this, in terms of what was an intention to kill, even if in the heat of the moment.



Even if you didn't premeditate a murder, you could still have an intent to kill, an intention formed within a short space of time, not a planned, longer term space of time. That is my view, and would be interested to discuss.



I feel that sometimes the two things are confused, and conclusions are formed that there was no intent to kill if there was no premeditation.



But if you get angry at someone, you can, perhaps over the space of an hour or so, start to despise that person for what they represent, for what they perhaps highlight in you that you don't want to see, for the difficulties they cause you because of the barriers they present to you living your life the way you want, so you decide in that short period to wipe out what is before you. As a quick fix, maybe with heightened emotions, yes, you decide you want to eliminate them, and you do. Then you realise the horrible consequences of this, and you may even regret it.



But does that mean the killing was an accident, and that there was no intent?

My layman's understanding is that it doesn't matter if you only formed the intent the second before you acted. If there was intent during the action it is treated as with intent.

Manslaughter I understood was where you took action that led to someone's death and you should have known it could, but you weren't taking that action intending to kill them.

I am more than happy to be corrected

 

[Cattail]

I don't know what i think the chances are of GBC testifying. I suppose there is a possibility that if they are not at all confident about him getting a not guilty verdict for murder, that he could testify and make a shock admission that he accidentally killed her and then covered it up due to being scared that he would be accused of doing it deliberately. He could say they argued, for some reason they ran out into the carport, either to avoid disturbing the children or due to Allison scratching his face in anger and him running out of the house away from her, that she ran after him, he pushed her and she fell and died from bleeding to the brain. She didnt have a cracked skull so that isn't an option.



But it would be risky, you'd really have to have your story straight.



Alternatively, he could take the stand anyway and maintain his complete innocence. But not sure what that would achieve as he hasn't had a good showing so far in public appearances during Allison's disappearance.



I think the thing is - despite my feeling the prosecution case is not as strong as expected, I also dont feel the implications of suicide have come up very strongly, and the idea that someone else killed her doesn't seem to be in the mix anymore.



What I think will be interesting is whether the Defence will call any further witnesses of their own, and if so, what line will the questions take.

For the medical people - do you have to have a cracked skull for a blow to the head to be fatal? I thought a subdural haematoma (sp?) could be fatal without a crack in the skull? Just curious.

 

[Waiting for Justice]

For the medical people - do you have to have a cracked skull for a blow to the head to be fatal? I thought a subdural haematoma (sp?) could be fatal without a crack in the skull? Just curious.

My sister fell off a push bike many years ago and hit her head on the road (long before helmets). She did not have a fracture anywhere but died from a subdural haematoma. So you are correct Cattail!

 

[Cattail]

My sister fell off a push bike many years ago and hit her head on the road (long before helmets). She did not have a fracture anywhere but died from a subdural haematoma. So you are correct Cattail!

Thank you, but I am so sorry for the reason that you know this to be true.

 

[LadyBird1]

My sister fell off a push bike many years ago and hit her head on the road (long before helmets). She did not have a fracture anywhere but died from a subdural haematoma. So you are correct Cattail!

Very sorry to learn about your sister. You did answer Cattail's question quite correctly, though.