Gerard Baden Clay's murder appeal

[alioop]

Only just now have I been able to load the page. Wow, I didn't see this coming. A few things to point out about the manslaughter verdict:-

He has been found responsible for unlawfully killing Allison, just without an intent proven.
He has admitted to nothing, he has never said anything other than he didn't kill his wife and doesn't know what happened to her. The arguments by his lawyers in the appeal are legal hypotheticals arguing the jury did not have enough evidence to find intent to kill.
A manslaughter verdict as it is an unlawfull killing ie there is no defence to the killing like self defence for eg, means that he is excluded from benefitting from her estate.


Re the sentencing, all the lies and post conduct of dumping her under the bridge and no admissions or any remorse whatsoever, will have great weight in determining the sentence. Manslaughter has the same max sentence as murder being 15 yrs except that it is not mandatory so the sentencing judge will decide the jail term. The sentence should still be substantial and he should do several more years in jail is my guess and hope.

I don't think there will be any more appeals. I think this is how it will end up. Also there won't be any civil litigation against him as he has no money.

 

[JCB]

Well there is much to be discussed in the coming days but first off let me just say that I am absolutely disgusted at some of the journalists covering the appeal. Their repeated insinuations that Gerard confessed to unlawfully killing Allison during his appeal is not in the slightest but accurate. It is nothing more than a stunt designed to whip up hatred (deserved or not) against Gerard, we rightly lambaste Gerard for his lies and half-truths, why do we accept the same behaviour from journalists? I accept that this is a time when emotion is running high for many people but the journalists covering high profile matters such as this have a tremendous responsibility to report factually and must have an understanding of basic legal concepts before being allowed to report.

Had a retrial been ordered, there is absolutely no chance that it would have been heard before a jury again. It would have been a bench (judge only) trial due to prejudicial publicity and it's no secret that bench trials put the defence at a significant advantage. It's not a stretch to say that unprofessional, sloppy and vindictive journalism (particularly in the social media era) is going to lead to a dangerous offender walking free sooner rather than later.

As a result of some of my earlier posts, I've had some heated responses so let me just clarify from the outset. Do I believe that Gerard was responsible for Allison's death? Yes, common sense and logic dictate this to be the case. Do I believe he should have been found guilty of murder? Absolutely not, and this is something that I have maintained throughout. This is not out of sympathy for Gerard or any such thing but in my opinion, the evidence led in relation to the element of intent was woefully lacking and I'm quite surprised that Justice Byrne did not allow the no case submission at the conclusion of the Crown case.

There have been a number of questions raised and as our resident verified expert, I'm sure Alioop will be along to answer them more eloquently than I ever could but for what it's worth....

- The Crown has no power to appeal the substitution of the murder conviction to manslaughter.
- Gerard still has an avenue of appeal left to the High Court if he so desires. I believe this to be extremely unlikely.
- Gerard will not be charged with perjury.
- It is my opinion that nobody else will ever be charged in connection with Allison's death.

While it is of cold comfort to Allison, her family, friends and supporters, I genuinely believe that we are lucky that a conviction for manslaughter has seemingly been secured. As I've said many times before, so much so that I'm sure that everyone was getting sick of it, there was little chance of the murder conviction withstanding the scrutiny of the appellate court while there was some chance of a retrial or even acquittal. As it stands now, Gerard will not benefit financially from Allison's death and he will be forever labelled a killer (pending an unlikely HCA appeal). He may not officially be a murderer but he is still a killer, he unlawfully took the life of another human being.

I've posted about this previously but just to touch on the above mentioned media reports for those who missed it, Gerard and his defence were not suggesting at the appeal that he did accidentally kill Allison, only that this was a reasonable hypothesis and thus the element of intent was not proved beyond a reasonable doubt and the verdict of murder must be overturned. It was not an admission of any kind, it was simply an illustration that the essential element of intent could not be proved beyond a reasonable doubt.

I have much more to add but will do so when time permits.

Attention will now turn to sentencing and I fear that many will be unsatisfied by the sentence ultimately handed down. It's a tricky situation, downgrades from murder to manslaughter are not common and the fact that Gerard was never afforded the opportunity to plead guilty to the lesser offence complicates matters as pleas of guilt must be considered when forming a sentence. We know that manslaughter was put forward at the no case submission but if it comes to light that an offer to plead was made but rejected by the prosecution at an earlier date there may be scope for a reduction in the penalty that would ordinarily apply. One might expect that Gerard's denials at trial are a miligating factor but the defence will argue that he was giving evidence in relation to a charge which was later downgraded. Basically, if manslaughter was on the table would he have taken it and admitted all? We will never know because he was deprived of that opportunity and the court will take this into account when handing down his sentence. It may not make any material difference but it is a complicating factor.

Again I've covered this in a previous post but many manslaughter sentences hover a few years either side of 10 years. For those not familiar with QLD legislation, where a person has been convicted of a violent offence and sentenced to 10 years imprisonment or more, a serious violent offender declaration (SVO) MUST be made. This means that the offender must serve at least 80% of the head sentence before being eligible for release instead of the standard 50%. An SVO can be made for sentences under 10 years, but given that there is no conclusive forensic evidence to suggest a cause of death, the court may be loathe to make such a declaration. To give you some context, if Gerard was sentenced to 9 years without an SVO declaration, he would be eligible for parole next year. If he was sentenced to 10 years then he would not be eligible until 2020. That extra year effectively means an additional 3.5 years.

This is a shocking day for all but we must take solace in the fact that Gerard is still a killer in the eyes of the law and the repercussions of his actions will continue long after he is released from prison. To any family, friends or supporters of Allison who may be reading this, I am deeply sorry for what must be an unimaginable shock and my posts are in no way meant to trivialise this, only to provide some legal perspective on what has happened during the trial, appeal and the upcoming sentencing process.

Quick edit - Posted before I saw Alioop's response, I concur with her assessment 100%. I also forgot to mention that I'm not a verified expert and the above is the opinion of one person only.

 

[Trooper]

A manslaughter verdict as it is an unlawfull killing ie there is no defence to the killing like self defence for eg, means that he is excluded from benefitting from her estate.

I don't think there will be any more appeals. I think this is how it will end up. Also there won't be any civil litigation against him as he has no money.

edited by me for brevity..

thankyou for this , alioop.... its not so bad, its just so awful..

 

[Mountain Misst]

I trust the sentence is not reduced.

 

[Jo04]

Ss

Sent from my SM-G130H using Tapatalk

 

[Fuskier]

Thank you JCB for providing some legal perspective within the context of QLD Law. Appreciated. It helps us non-legal people make sense of what happened at the Appeal Court, what it means for GBC and what the implications may be. I note your comments: "the fact that Gerard is still a killer in the eyes of the law and the repercussions of his actions will continue long after he is released from prison".

 

[Fuskier]

Thank you Alioop for providing some legal perspective. Appreciated. It helps us non-legal people make sense of what happened, the implications for GBC. Despite the unexpected downgrade this morning, hopefully Allison's family take some comfort knowing that he is a killer in the eyes of the Law and excluded from benefiting from Alison's estate.

 

[Trooper]

at least, and its not much but at least this appeal has not gone down the road of jury error, .. nothing is imputed or inferred that the jury has made an error in conclusion, or adjudicating. But it must make people wonder why in hell they bother to do jury service.. why would you forgo weeks of wages, your own personal freedom to be enclosed with strangers for weeks, . and... then have the responsibility to form a verdict, which the entire population waits upon, which has to be absolutely accurate and crystal clear, for nothing?

just...nothing. ... .you can do all this and it makes not a jot of difference.

 

[Ooohm]

And I am wondering, within the context of the focus on Australian Domestic Violence, what would be the mindset of the sentencing judge come January 2016.

 

[Trooper]

And I am wondering, within the context of the focus on Australian Domestic Violence, what would be the mindset of the sentencing judge come January 2016.

sometimes these things take on momentum of their own.. There may be such a wide public backlash over this decision. Anyone remember Jamie Ramage? (VIC) .. such a nice bloke, he murdered his lovely wife, drove out of Melbourne and buried her in a shallow grave, and then came back into town, ( leaving his 13 yr old daughter to panic when Mum didn't pick her up ) had a fine dinner with his solicitor and then got his solicitor to ring the police for him. He claimed she provoked him. After all the dust settled, that law of claiming to be provoked into a murderous rage, has been revoked, and is no longer on the books. .

Maybe there will be an Allison law.... wont help with keeping Gerard in prison, but it may down the track deter some other murderous *advertiser censored*.

Maybe the judge tasked with doing Gerard may lay out the maximum. . . who knows.. . it certainly is ripe for a lot of convoluted argy bargy in the QLD Justice System.

 

[JCB]

I trust the sentence is not reduced.

Unfortunately it is inevitable that the sentence will be reduced, and reduced substantially.

While it's true that the maximum penalty is life, the same as murder, in reality it very rarely happens and only in very specific circumstances.

Sentencing judges are restricted in their sentencing range by past decisions. Where an offence has historically attracted a penalty of around 10 years, the sentencing judge cannot say "I'm taking a stand against this kind of behaviour, 20 years!". Well they could, but it would be overturned on appeal and a smack across the knuckles from the Chief Justice would be forthcoming.

Sentencing is a balancing act between both mitigation and aggravating factors. Mitigating factors include early pleas of guilt, assistance given to police, voluntarily addressing offending behaviour etc. Aggravating factors include prior criminal history, protracted offending, premeditation etc.

In Gerard's favour he has no criminal history, no prior allegations of domestic violence. While being generally unhelpful himself, he allowed to police to conduct their investigation unhindered, in that he didn't refuse access to the property even in the absence of a search warrant and so on.

Going against Gerard is that he elected to proceed to trial (although this itself is mitigated to a certain degree if an offer to plead to manslaughter was made) and that he attempted to conceal the offence by disposing of Allison's body.

Have only had a cursory look at the comparative sentences but the general range is 7-8 years for "one punch" offences and 12-14 years for offences with an element of protracted and severe violence. Sentences of 12 and 13 years have been confirmed by the QCA in 2 particular cases I examined, both had relevant criminal histories and were found guilty at trial. Both were particularly violent and one involved a weapon.

Given that the QCA has hypothesised that an otherwise innocuous argument could have resulted in Allison's death, the sentencing judge is somewhat bound to sentence on this basis. We have no forensic evidence to suggest how Allison may have died and while all deaths are unquestionably tragic, there seems to be no evidence of a brutal assault or use of a weapon and while asphyxiation was suggested by the Crown, it's equally as likely that Allison could have hit her head in a fall during and argument or scuffle. The court can only sentence on the facts before them, that is that Gerard caused Allison's death but there is no evidence to suggest that it was a particularly violent or frenzied attack.

Taking this into consideration, 12 years would probably seem to be manifestly excessive, especially as Gerard has no relevant (or indeed any) criminal history. Countering this, the 7-8 year sentences for what I earlier called one punch killings are usually reserved for offenders who plead guilty prior to trial and there generally isn't any elaborate attempt to conceal their involvement in the crime. However it's possible Gerard's involvement fell short of even punching Allison, nobody knows and this makes the upcoming sentencing a particularly delicate matter. It's quite likely that regardless of the sentence, one or more appeals against the severity (or lack of) will be made.

My opinion is that the appropriate sentencing range is between 8-12 years but where it sits between that is anyone's guess. As stated above, 10+ years automatically means 80% of the head sentence must be served. Given the lack of apparent injuries, a court may be reluctant to impose a sentence that automatically invokes an SVO, even given the lack of a guilty plea (and the usual discount that comes with it). If I were the defence I'd argue for 8 and hope for 9, the prosecution - argue for 12 and be satisfied with 10. I don't believe that an SVO declaration will be made if the sentence is less than 10 years.

 

[Fuskier]

http://www.sclqld.org.au/caselaw/QCA/2015/265

SUPREME COURT OF QUEENSLAND
CITATION: R v Baden-Clay [2015] QCA 265

ORDERS: 2. The verdict of guilty of murder is set aside and a verdict
of manslaughter is substituted.

[48] ... there 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 ...

IMO for every hypothesis they have put forward there are equal and opposing hypotheses.

 

[Couldbe]

http://www.sclqld.org.au/caselaw/QCA/2015/265

SUPREME COURT OF QUEENSLAND
CITATION: R v Baden-Clay [2015] QCA 265

ORDERS: 2. The verdict of guilty of murder is set aside and a verdict
of manslaughter is substituted.

[48] ... there 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 ...

IMO for every hypothesis they have put forward there are equal and opposing hypotheses.

If Gerard accepts this decision of Manslaughter, then why doesn’t he come clean and tell exactly what happened? Why would he accept it …. just because it the lesser of the two ‘evils’.
…… likewise his Sister, Father and Mother…..who also choose to believe it wasn’t Murder ….. maybe they find Manslaughter more palatable.

Unless a fresh statement from any of them is forthcoming (hopefully not for a lucrative fee, if he can’t afford any further legal costs) he will never to be able to proceed down the path of ‘vowing to clear his name’.

With all the lies that have been told, who could ever believe anything further that Gerard uttered!

JMO

 

[JCB]

IMO for every hypothesis they have put forward there are equal and opposing hypotheses.

Absolutely, however when it comes to the question of sentencing, if there is more than 1 possible scenario, the court must sentence on the basis that the "lesser of two evils" applies. This is particularly the case where it formed the basis of the QCA's decision to overturn the murder conviction.

 

[they'll get you]

Well let's throw away the white ribbon on domestic violence now.

Anyone who hits a woman really doesn't mean to do it....it's all a mistake.

Ahhh c'mon!

While they're at it, why not lessen Gittany's murder to manslaughter....he didn't really mean to throw Lisa off the 34th floor either.

I'd love to hear what Rosie Battie's thoughts are on this fool decision.

Allison's wedding and engagement ring (pictured below)

 

[Couldbe]

Absolutely, however when it comes to the question of sentencing, if there is more than 1 possible scenario, the court must sentence on the basis that the "lesser of two evils" applies. This is particularly the case where it formed the basis of the QCA's decision to overturn the murder conviction.

But, it still remains that he chose to have Allison's body placed under the bridge (14 kms away) instead of calling an Ambulance .....WHY Oh WHY!

A Judge deciding on a sentence would surely take this into account, and come to the conclusion that Gerard's action in deciding to 'save his own skin' rather than seek help for his Wife was reprehensible to say the least ...... after all, it wasn't that he was choosing not to rescue her from another threat!

 

[JCB]

A Judge deciding on a sentence would surely take this into account, and come to the conclusion that Gerard's action in deciding to 'save his own skin' rather than seek help for his Wife was reprehensible to say the least!

Yes, this will definitely be taken into account

 

[Amee]

[h=1]The dumping of Baden-Clay murder conviction is a slap to every domestic violence victim[/h]
http://www.heraldsun.com.au/news/op...alSF&utm_source=HaraldSun&utm_medium=Facebook

 

[Emmbles]

I cannot believe this. I feel for the Dickies today

 

[Fuskier]

IMO this verdict has been downgraded on appeal on the basis of 'hypothetical scenarios' about what could have happened - without any admission from Gerard Baden-Clay?

I'm not a legal person, but I'm struggling with this one.

Generally, in science, a hypothesis is an idea not yet proven, but leads to further discussion; it usually precedes the development of a theory. But theory is just that - a theory (general propositions used to explain phenomena) yet to be proved and validated by evidence.