Australia - Allison Baden-Clay, 43, Brisbane QLD, 19 April 2012 - #13

[Hawkins]

A lawyer's overriding duty is to the Court. So if s/he has been told by their client that the client is guilty then they are in breach of the code of ethics if the lawyer represents to the court that the client is innocent.

There are a few misconceptions in this statement. Firslty, neither the client nor their lawyer can determine whether the client is guilty of an offence. 'Guilt' is a technical legal term which refers to the extent to which the Crown evidence is accepted by the jury, to the requisitie standard. A cleint can certainly give instructions to their lawyer which are consistent with allegations of fact asserted by the Crown, but it is not the job of the lawyer to conclude that this equates with 'guilt'. The duties of the defence lawyer when the client makes admissions to them are dealt with in previous posts. Moral guilt is a different phenomenon and has (for better or worse) little to do with the forsensic legal process.

A defence lawyer is not required to prove anything, and nor do they generally attempt to do so (except for some limited defences in which the onus of proof is reversed). They certainly don't make submissions that their client is 'innocent'. Nor is a court for that matter, convended to determine whether an accused person is 'innocent' of a charge. The criminal trial is designed to determine whether there is strong enough evidence to convince 12 people that the assertions made by the Crown are correct. If the jury finds that the evidence does not meet this standard, that's all they are deciding. A finding of 'not guilty' is a finding in relation to the quality of the evidence, not a finding of 'innocence'.

A defence lawyer, of course, represents to a court that their client is not guilty even where the client has made admissions that, if the jury heard them, may convince them otherwise. But this representation is one about the status of the Crown evidence, it is not a representation as to what their client did, or did not do, as a matter of fact. The lawyer may make allegations of fact in the course of the trial, when cross-examining witnesses for example, but these allegations will not be inconsistent with anything said to them by their client.

It is a very deeply seated misconception that crimninal trials in common law countries, such as Australia, are fundamentally a search for the truth. They are not. If what they produced was 'the truth' then guilty people would never be acquited and innocent people would never be convicted.

 

[Thinking]

All very interesting discussions today, thanks

I've been dwelling on the business side of things again. Portsmouth posted an interesting piece on a drive he/she did around Kenmore and Taringa this week. Did you end up going to Brookfield too, Portsmouth?


Interestingly, P reported that the Century21 offices are pretty much vacant now, no photos, signage etc from memory. We also know the office space is being advertised for lease.

Does anyone have a view on the following:

1. Was the business being wound up anyway in the weeks prior to Allison's death and the business would have closed down in any event; or

2. Was the business going badly but not winding up, then Allison was killed and due to all the publicity, outrage and mystery, people pulled their properties etc and the business has been destroyed by all of this.

I wonder about the sequence of events. Any thoughts?

 

[kiwi50]

I'm not an expert. but I would tend to think that would go in the no visible signs(depending how badly broken)..even it is suspected. I could be wrong. (but as thats something would need to be confirmed by examiner)

I would hope a broken neck would be visible during the autopsy.
If she was smothered I have doubts whether they will be able to prove cause of death. One clue is if the bloodvessels in eyes have burst or the eyes bloodshot.

 

[Keentoknow]

I am still sulking about my 2 day time-out....BUT I did have to say CJ that this is exactly what I had thought. I am not religious either but love that " someone 'up there' thought 'get away with murder? not on my watch" I bet the perp would never,ever expected such public interest is his little old MRS(his opinion) missing. Yes, I believe he thought he could get away with it and she would be put down as a missing person,I would bet he never expected her to be found so quickly and she came out of his "hiding spot". Perhaps she really was an angel : )

Curiousasacat I will post this again in case you missed it Cr Paul Tully Lawyer.
http://paulgtully.blogspot.com.au/2012/05/how-long-more-till-police-pounce-on.html

 

[UnfoldingTruth]

Yes I think majority are in agreement....not only online but away from internet also.

The photos from the funeral of the poor little girls...they are some of the saddest photos I have ever seen.

Glad you didn't say ALL in agreement, lol. Think theres quite a few not so ready to slap the cuffs on. I hover and in reality I guess none of us truly know, without all the facts. But understand people have their opinions(including myself).

 

[UnfoldingTruth]

I would hope a broken neck would be visible during the autopsy.
If she was smothered I have doubts whether they will be able to prove cause of death. One clue is if the bloodvessels in eyes have burst or the eyes bloodshot.

Yep a broken neck would be visible by autopsy of course, I meant on initial examination at the scene. And as someone else said, determining how it was broken(if that happened), is something that would need further examination. I think the forensics are pretty good at being able to determine alot of things. And I am sure there are things to look for if checking to see if someone was smothered.

 

[Curiousasacat]

Thanks for welcoming me back. Shucks : )
Yes CJ I did have withdrawal LOL
I did lots of snooping and such to keep me entertained,
even stooped so low to look at the RSVP website. Shame. Amazing how many women in Kenmore looking for men.

The only thing I came across was more info on Allison's role with pathways.
Not sure if it's really relevant to the case but will look for it and be back later.

greg, I know you and Keyboard took your timeouts well LOL. I don't know what yours was about,different to mine I think x

 

[Greg]

Nice review re Interview from Doc Watson on Aussie crims, I hope im not TOS violating here but if I am Ill catch ya in a few days!!! cheers

http://aussiecriminals.com.au/2012/...-under-pressure/comment-page-3/#comment-28691


Doc Watson says:
May 25, 2012 at 5:41 am


Watching the Gerbil Clay interview just now did it for me yet again … Every alarm bell in the world goes off … And the poor young crime reporter (Alyshia Gates) seemed to be buying it too … This will go down as one of the most self-incriminating performances in the history of Australian crime. No wonder there has been no repeat interviews.

Every single tell-tale sign of lies & deceit was there for us all to see and hear.

In case you have lost the link to the YouTube video that Robbo created:
https://www.youtube.com/watch?v=c76CI6vtixI

Transcript (my observations/comments in brackets)

Gerbil Clay:
“I’m trying to look after my children at the moment” (gesticulates with hands in a very peculiar way)
“I’ve got three young girls and …” (looks down pausing, stalling, desperately thinking of what to say next)
“We” (smacks his lips, again looks down unable to face the reporter)
“We really trust that the Police are doing everything they CAN (pulling incredible forced facial expressions) to find my wife and …” (big breath, swallow, licks his lips)
“We just hope that she will … (voice cracking) COME home soon” (choke, gulp, feigned distress).

Gerbil Clay:
“I’ve spoken to the Police about everything … and” (shaking his head side to side, obviously subconsciously realizing his own BS, furtively looks up, with right eyebrow raised, at Alyshia to see if she is buying it (she is) tries to think ahead because his biggest line of deceit is coming … Then looks down:
“I’ve, I’ve had no contact from her at all” (another quick look at reporter to see if she is duped)
(This last statement is true, because it is hard to contact someone when you are dead and held underwater with chains)

Alyshia Gates:
“Was she upset before she went away?”

Gerbil Clay:
“Nooo …” (again shaking head from side to side in subconscious disagreement with his incongruous lying words) and immediately rushes on, without even drawing breath with:
“And, and, the Police, I’ve tried to help the Police as much as I can” (still madly shaking his head from side to side, the classic give-away – this is lie spotting 101 right here)
“We all have” (head shaking side to side)
“With everything we’ve got” (still shaking head from side to side … didn’t Realty School teach him)
“So … Thank you (tearingly)… I’m sorry”
(You had already answered this issue … The question was: was she upset before she left home? She was upset, very upset, women usually are when violently accosted and murdered by a lying cheating cowardly mongrel husband such as you)

Gerbil Clay (regarding the car crash):
“Oh was hurt a little bit … voice fading away … but I’m OK” (here he nods his head to the “I’m OK” bit – which is most definitely a true statement … He is very clearly OK.
(This Is the final straw … I would convict him just on that alone. I am almost serious).

Gerbil Clay:
“We’ve got such great family support”
“My sister, and my family here”
“And they’re looking after ….” looks down, chokes sobs unable to continue … (his family support obviously meaning so much more than his missing wife/mother of his kids).

Scouts honour, this interview does not need any any trained expert in body language to interpret subtle micro-gestures … Gerbil’s lying words and blatant deceit now on the public record – set in stone, not to be washed away like a bit of clay sprinkled on concrete !! ;-)

 

[UnfoldingTruth]

Thanks for welcoming me back. Shucks : )
Yes CJ I did have withdrawal LOL
I did lots of snooping and such to keep me entertained,
even stooped so low to look at the RSVP website. Shame. Amazing how many women in Kenmore looking for men.

The only thing I came across was more info on Allison's role with pathways.
Not sure if it's really relevant to the case but will look for it and be back later.

greg, I know you and Keyboard took your timeouts well LOL. I don't know what yours was about,different to mine I think x

Ha ha, sounds like you all got put in the naughty corner! I wondered where everyone had gone.

 

[possumheart]

And I am sure there are things to look for if checking to see if someone was smothered.

Yes, there can even be indication of that on dry bones I think because the back of the brain bleeds or something similar

 

[Curiousasacat]

Curiousasacat I will post this again in case you missed it Cr Paul Tully Lawyer.
http://paulgtully.blogspot.com.au/2012/05/how-long-more-till-police-pounce-on.html

Thank you so much Keen and thank you for that other link and kind words.
Funny,I tried to log on to post that the other morning but couldn't log on : (

Hoping thread 13 is the lucky one.

Can I throw something out there that has never been discussed???
Perhaps he went to the doc and got a prescription for an STD??? That would certainly cause a fight.. Hmmmm :what:

 

[Seeking]

From what I understand of the judiciary system, a solicitor or barrister is to advise his client on what is in his best interest. In some cases that may be to plead gulity I think you would be a fool to engage someone for this purpose and not take their advice, How does the saying go :"the person who represents himself in court, has a fool for a client

I believe that you are correct. The lawyer advises his client what will be in his best interest...even to the point of advising a person to plead guilty to something that they maintain their innocence of. The innocent man that my husband and I supported was strongly advised by his legal team to plead guilty even though the legal team knew that he was innocent. If he pleaded guilty they said he would probably be spared jail....it was some type of deal with the prosecution. Apparently the prosecution agreed to leave off one of the charges or something like that. I think that the reason the defensive team suggested he plead guilty was that it was one of these cases that is impossible to defend because there was so many things that were inadmissible in court and the offenses were supposed to have occurred so long ago. An impossible situation.......and the kind of case that I believe our legal system needs to look at how they deal with....focus on finding the truth...not just on getting a conviction. It really wasn't fair at all. It was very difficult for the man to decide whether to accept the easy option of pleading guilty and not going to jail......but in the end he decided that if he chose that option (as tempting as it was) that he was in fact lying to the court....so he preferred to be truthful....maintain his innocence and therefore go to jail because it was too difficult to defend. Shocking situation and a real eye opener to the reality of our justice system.

 

[sheldor]

Hawkins will be able to answer you better than me. Your posts are very objective and informative Hawkins. So Thank you.

My personal experience (supporting a friend through a murder trial that turned to a plea of guilty to manslaughter) is that the plea changes even happen on the day a trial is supposed to start. I am not a legal professional and I don't live in QLD anymore. In my friends case the prosecution team was prepared for a murder trial, though very close to the actual trial they gave my friend the idea that there could be a plea coming, but there was no guarantee until it actually happened. In her case it happened right at the start of the court case sparing my friend (a victim as it was her loved one that was murdered) a lot of pain and stress in having to be cross examined in court....as well as sparing the court all the time and costs associated with a prolonged trial and also sparing the need for a jury.

The two court cases that I have supported people through have given me the idea that there is a lot of talks and negotiation between prosecuting teams and defending teams outside of the court room. I might be wrong but it is what it felt like to me both times. My other observation of the criminal court process is it becomes about what is recorded on the paper (hence making sure that you have a lawyer involved from the beginning) and what the various people agree about what this means (a bit like the people on Weblseuths debating the relative merits of what has been written about a particular case in the media and what it all means:fence and that sometimes if you are actually people who know about the case personally or know the people or situation that what comes out in court can seem far from the "real experience"......even to the point where in one case I attended that if it wasn't so serious...........it would have been laughable. the legal teams work very hard with what they have and what is admissible within the constraints of a court system etc. If you know about a case and what is being presented seems off the track...it is very hard to not say anything...believe me...but you can't....you just have to let the court process happen and not interfere. I just wrote lots of notes and if appropriate made the barrister aware when there was a break.

My limited experience in this area made me glad that I am not a criminal lawyer........and it even made me hope that none of my children choose that path for a career. I think that it would be a very difficult job.... there is such a lot at stake for both sides. There is also an incredible amount of emotion and stress to deal with for all people. You don't want to put an innocent person in jail....but you don't want to let the guilty walk free.

Exactly. The criminal justice system (while it might appear to be a farce to some looking in from the outside) actually is designed to strike a balance between those two possibilities and it is said that it is better to let ten guilty men go free than convict one innocent (or words to that effect!). So the presumption of innocence, and the fact that the prosecution must prove everything beyond reasonable doubt, and all the rules of evidence are there to prevent innocent people being convicted on flimsy evidence.

Some people seem to be opposed to the idea of rights in the context of accused people, like the right to silence, the right to a fair trial etc and argue that people lose those rights when you commit a crime -- but the point is that it is not proved that you have committed a crime until the jury (or judge) decides that you have, after hearing all the evidence. And as we know, innocent people have been convicted of crimes that they did not do. And they might have been involved in discreditable conduct which makes us think they are not nice people, but nonetheless they did not do what they were charged with doing. We are all free to speculate as much as we like about who killed Allison, and why, but all of our speculation is not based on evidence that would necessarily be admissible in court (in other words, most of it is highly unreliable and prejudicial). It is important to remember that as yet no one has been charged, let alone found guilty.

 

[minni]

Yes I think in a case where somebody was found soon after death a broken neck would be evident by the wobble of the head, after 12 days in the elements though I don't know?

not if that little u shaped bone was broken, you wouldn't be able to tell would you? that is the bone that often gets broken in hanging or manual strangulation (i think) I know its only a small bone hyoid i think

maybe you could get that 'looseness' if it was one of the cervical bones fractured, I have no idea. but like you said after the body gets rigor mortis, it is only for a few days before it 'unstiffens' again, and she had been left to environmental elements for a long time most likely.

I think it would have to be a pretty big force to do it accidently like a car accident maybe? or could it happen in a struggle like wrestling maybe? I hope we hear some more soon about the autopsy and toxicology results..It would give us something more specific to discuss!!!!

 

[minni]

Nice review re Interview from Doc Watson on Aussie crims, I hope im not TOS violating here but if I am Ill catch ya in a few days!!! cheers

http://aussiecriminals.com.au/2012/...-under-pressure/comment-page-3/#comment-28691


Doc Watson says:
May 25, 2012 at 5:41 am


Watching the Gerbil Clay interview just now did it for me yet again … Every alarm bell in the world goes off … And the poor young crime reporter (Alyshia Gates) seemed to be buying it too … This will go down as one of the most self-incriminating performances in the history of Australian crime. No wonder there has been no repeat interviews.

Every single tell-tale sign of lies & deceit was there for us all to see and hear.

In case you have lost the link to the YouTube video that Robbo created:
https://www.youtube.com/watch?v=c76CI6vtixI

Transcript (my observations/comments in brackets)

Gerbil Clay:
“I’m trying to look after my children at the moment” (gesticulates with hands in a very peculiar way)
“I’ve got three young girls and …” (looks down pausing, stalling, desperately thinking of what to say next)
“We” (smacks his lips, again looks down unable to face the reporter)
“We really trust that the Police are doing everything they CAN (pulling incredible forced facial expressions) to find my wife and …” (big breath, swallow, licks his lips)
“We just hope that she will … (voice cracking) COME home soon” (choke, gulp, feigned distress).

Gerbil Clay:
“I’ve spoken to the Police about everything … and” (shaking his head side to side, obviously subconsciously realizing his own BS, furtively looks up, with right eyebrow raised, at Alyshia to see if she is buying it (she is) tries to think ahead because his biggest line of deceit is coming … Then looks down:
“I’ve, I’ve had no contact from her at all” (another quick look at reporter to see if she is duped)
(This last statement is true, because it is hard to contact someone when you are dead and held underwater with chains)

Alyshia Gates:
“Was she upset before she went away?”

Gerbil Clay:
“Nooo …” (again shaking head from side to side in subconscious disagreement with his incongruous lying words) and immediately rushes on, without even drawing breath with:
“And, and, the Police, I’ve tried to help the Police as much as I can” (still madly shaking his head from side to side, the classic give-away – this is lie spotting 101 right here)
“We all have” (head shaking side to side)
“With everything we’ve got” (still shaking head from side to side … didn’t Realty School teach him)
“So … Thank you (tearingly)… I’m sorry”
(You had already answered this issue … The question was: was she upset before she left home? She was upset, very upset, women usually are when violently accosted and murdered by a lying cheating cowardly mongrel husband such as you)

Gerbil Clay (regarding the car crash):
“Oh was hurt a little bit … voice fading away … but I’m OK” (here he nods his head to the “I’m OK” bit – which is most definitely a true statement … He is very clearly OK.
(This Is the final straw … I would convict him just on that alone. I am almost serious).

Gerbil Clay:
“We’ve got such great family support”
“My sister, and my family here”
“And they’re looking after ….” looks down, chokes sobs unable to continue … (his family support obviously meaning so much more than his missing wife/mother of his kids).

Scouts honour, this interview does not need any any trained expert in body language to interpret subtle micro-gestures … Gerbil’s lying words and blatant deceit now on the public record – set in stone, not to be washed away like a bit of clay sprinkled on concrete !! ;-)

love it!!!! its cringeworthy to watch, and he nailed it pretty well I think

 

[sheldor]

There are a few misconceptions in this statement. Firslty, neither the client nor their lawyer can determine whether the client is guilty of an offence. 'Guilt' is a technical legal term which refers to the extent to which the Crown evidence is accepted by the jury, to the requisitie standard. A cleint can certainly give instructions to their lawyer which are consistent with allegations of fact asserted by the Crown, but it is not the job of the lawyer to conclude that this equates with 'guilt'. The duties of the defence lawyer when the client makes admissions to them are dealt with in previous posts. Moral guilt is a different phenomenon and has (for better or worse) little to do with the forsensic legal process.

A defence lawyer is not required to prove anything, and nor do they generally attempt to do so (except for some limited defences in which the onus of proof is reversed). They certainly don't make submissions that their client is 'innocent'. Nor is a court for that matter, convended to determine whether an accused person is 'innocent' of a charge. The criminal trial is designed to determine whether there is strong enough evidence to convince 12 people that the assertions made by the Crown are correct. If the jury finds that the evidence does not meet this standard, that's all they are deciding. A finding of 'not guilty' is a finding in relation to the quality of the evidence, not a finding of 'innocence'.

A defence lawyer, of course, represents to a court that their client is not guilty even where the client has made admissions that, if the jury heard them, may convince them otherwise. But this representation is one about the status of the Crown evidence, it is not a representation as to what their client did, or did not do, as a matter of fact. The lawyer may make allegations of fact in the course of the trial, when cross-examining witnesses for example, but these allegations will not be inconsistent with anything said to them by their client.

It is a very deeply seated misconception that crimninal trials in common law countries, such as Australia, are fundamentally a search for the truth. They are not. If what they produced was 'the truth' then guilty people would never be acquited and innocent people would never be convicted.

I don't think there is a misconception in what I said. A lawyer cannot lie to the Court. If the client says to his or her lawyer that s/he stabbed a man, their lawyer cannot claim in court that s/he did not stab the man. It depends upon the facts in issue in each case.

 

[Liadan]

No expert - but just from what I can remember - I think the hyoid bone in the neck gets broken if there is strangulation or pressure to the neck. Where if the neck is broken dues to other causes such as entrapment in a log or object or there is post death trauma this bone remains in tact. I think they often use this bone to identify victims of strangulation.

sorry Minni beat me to it!

 

[kiwi50]

Nice review re Interview from Doc Watson on Aussie crims, I hope im not TOS violating here but if I am Ill catch ya in a few days!!! cheers

http://aussiecriminals.com.au/2012/...-under-pressure/comment-page-3/#comment-28691


Doc Watson says:
May 25, 2012 at 5:41 am


Watching the Gerbil Clay interview just now did it for me yet again … Every alarm bell in the world goes off … And the poor young crime reporter (Alyshia Gates) seemed to be buying it too … This will go down as one of the most self-incriminating performances in the history of Australian crime. No wonder there has been no repeat interviews.

Every single tell-tale sign of lies & deceit was there for us all to see and hear.

In case you have lost the link to the YouTube video that Robbo created:
https://www.youtube.com/watch?v=c76CI6vtixI

Transcript (my observations/comments in brackets)

Gerbil Clay:
“I’m trying to look after my children at the moment” (gesticulates with hands in a very peculiar way)
“I’ve got three young girls and …” (looks down pausing, stalling, desperately thinking of what to say next)
“We” (smacks his lips, again looks down unable to face the reporter)
“We really trust that the Police are doing everything they CAN (pulling incredible forced facial expressions) to find my wife and …” (big breath, swallow, licks his lips)
“We just hope that she will … (voice cracking) COME home soon” (choke, gulp, feigned distress).

Gerbil Clay:
“I’ve spoken to the Police about everything … and” (shaking his head side to side, obviously subconsciously realizing his own BS, furtively looks up, with right eyebrow raised, at Alyshia to see if she is buying it (she is) tries to think ahead because his biggest line of deceit is coming … Then looks down:
“I’ve, I’ve had no contact from her at all” (another quick look at reporter to see if she is duped)
(This last statement is true, because it is hard to contact someone when you are dead and held underwater with chains)

Alyshia Gates:
“Was she upset before she went away?”

Gerbil Clay:
“Nooo …” (again shaking head from side to side in subconscious disagreement with his incongruous lying words) and immediately rushes on, without even drawing breath with:
“And, and, the Police, I’ve tried to help the Police as much as I can” (still madly shaking his head from side to side, the classic give-away – this is lie spotting 101 right here)
“We all have” (head shaking side to side)
“With everything we’ve got” (still shaking head from side to side … didn’t Realty School teach him)
“So … Thank you (tearingly)… I’m sorry”
(You had already answered this issue … The question was: was she upset before she left home? She was upset, very upset, women usually are when violently accosted and murdered by a lying cheating cowardly mongrel husband such as you)

Gerbil Clay (regarding the car crash):
“Oh was hurt a little bit … voice fading away … but I’m OK” (here he nods his head to the “I’m OK” bit – which is most definitely a true statement … He is very clearly OK.
(This Is the final straw … I would convict him just on that alone. I am almost serious).

Gerbil Clay:
“We’ve got such great family support”
“My sister, and my family here”
“And they’re looking after ….” looks down, chokes sobs unable to continue … (his family support obviously meaning so much more than his missing wife/mother of his kids).

Scouts honour, this interview does not need any any trained expert in body language to interpret subtle micro-gestures … Gerbil’s lying words and blatant deceit now on the public record – set in stone, not to be washed away like a bit of clay sprinkled on concrete !! ;-)

Yes Doc watson really nailed him on that interview, he might as well be poster boy for a book, how not to get away with murder.
I wish he'd give his thoughts on the sister's interview too, she looked like she was almost holding her breath, that he wouldn't put his foot in it, or she didn't believe him. I got the impression he was very reluctant to do the interview.
IMO

 

[Greg]

love it!!!! its cringeworthy to watch, and he nailed it pretty well I think

Its funny in that interview Olivia looks genuinely concerned when she speaks but then in that other vid its almost like a B grade movie performance...

 

[Liadan]

I agree - it seemed like GBC was reticent to speak (he has a history of enjoying the media limelite so I think he thought he might give it a go) but his sister looked panicked and was not happy for the media to be there and was getting paler and paler as the conversation continued.