Gerard Baden Clay's murder appeal

[Oz Jen]

Unlawful killing comprises both manslaughter and murder. A lawful killing would be where the killer has a successful defence. GBC is a convicted killer, in terms of manslaughter as the appeal court decided the prosecution did not prove intent to murder or cause grevious bodily harm, either premeditated or spur of the moment intent.





I think Professor Douglas is spot on.


Something else I wanted to say about articles I have read re this case where Rose Batty is said to say that proving an intent to murder should take into account where there is a history of domestic violence. I don't know if this is what she did say, but we have to remember there was no evidence of domestic violence by GBC to Allison. Absolutely nothing. Problems in the marriage yes, but violence, verbal or physical, no.

I agree with you alioop. Thank you, as always, for your comments, they are really helpful in trying to understand the legal interpretations and implications.

However, I'd like to add that there is a great deal more recognition being given of late to the impact of psychological, gas lighting and emotional abuse as being part of DV, even in the absence of evidence of verbal or physical violence. I truly hope this is factored into the sentencing consideration. I think this aspect of psychological abuse was evidenced in the trial.

 

[Couldbe]

Hello everyone - Good to hear from you all again, though in a very bad situation.

I sort of get the reason for the appeal decision, but have many questions about the decision:

During the trial the defence requested changing the charge to unlawful killing. Does this mean that they had GBC's support for this? - ie Were they in fact saying that GBC was prepared to confess to accidentally killing Allison?

I don't remember at what stage of the trial they made this request. Was it before GBC took the stand and swore on oath that he had nothing to do with Allison's death?

The trial and its evidence were about murder, not manslaughter. Consequently, I think that the question of manslaughter versus murder wasn't covered. The appeal decision was based on the murder trial information. I can't recall any trial discussion about a hit on the head that was so bad that Allison would have died immediately. However, one fatal blow is now seen as a distinct possibility. Was there any sign of the head trauma needed to support this?

For a number of reasons (including the fingernail scratches) I think that Allison was killed at close range to her murderer - probably strangled. Would strangulation during a heated argument (rather than falling on a hard surface) be regarded as manslaughter rather than murder?

Hope my learned fellow websleuths will be able to clarify these for me. Thank you in advance.

Almost 100% sure the discussion re changing to 'Unlawful killing' was before Gerard took the witness box. (Seemed to indicate that Gerard escaping altogether didn't look good to his Defence team).....so bring on the big gun - Gerard himself!

No conclusive decision on how long Allison's chipped tooth had existed; I think that the autopsy report also showed some slight trauma to her head; no cause of death could be given; only that she had been in the position where she was found within a short period of time following her death.

 

[Trooper]

I agree with you alioop. Thank you, as always, for your comments, they are really helpful in trying to understand the legal interpretations and implications.

However, I'd like to add that there is a great deal more recognition being given of late to the impact of psychological, gas lighting and emotional abuse as being part of DV, even in the absence of evidence of verbal or physical violence. I truly hope this is factored into the sentencing consideration. I think this aspect of psychological abuse was evidenced in the trial.

She was certainly financially abused.. Gerard spent months complaining about a gym set she bought, and the saddest thing , the night she was murdered she had $ 20 .00 in her bank account. 3 kids and 2 adults to feed, a house to run, a job to get to , and only 43 and she dies with $20 in the bank account.

I had never understood the actual concept of financial abuse until I went to a lecture by Simon Overland ( no relation to Bruce Overland, the Beau Geste of Brookfield ) , former chief of Police, in Victoria. He made that a very significant rung on the ladder of abuse of women...

 

[McCoy]

She was certainly financially abused.. Gerard spent months complaining about a gym set she bought, and the saddest thing , the night she was murdered she had $ 20 .00 in her bank account. 3 kids and 2 adults to feed, a house to run, a job to get to , and only 43 and she dies with $20 in the bank account.

I had never understood the actual concept of financial abuse until I went to a lecture by Simon Overland ( no relation to Bruce Overland, the Beau Geste of Brookfield ) , former chief of Police, in Victoria. He made that a very significant rung on the ladder of abuse of women...

Yes financial abuse is a significant factor. I just signed a petition on Change.org re this case, it has almost 10,000 signatures asking the AG to review the case and change of verdict. It's great that everyone seems to as indignant and angry as us.

 

[Fuskier]

Thank you Alioop for your contribution in helping understand the meaning of the downgrade verdict. The contributions of fellow WS's are appreciated.

How is it that the defense can state that there was no evidence of domestic violence?
This case is an example for all women/men out there suffering in silence. This is what happens when you collude to 'keep it quiet' and/or 'the keep the marriage" and conceal from family and friends.

I disagree with the premise that there was NO history of Domestic Violence in that marriage.
I suspect it was concealed. Some examples of it seen in these WS threads include the following: There were unexplained bruises on Allison's leg (seen in photographs on this website, but later removed); her husband told her she smelled and laughed at her undies; she did not have adequate money available to conduct her various tasks; her husband unashamedly 'cheated' with various females (his own admission on the stand); other people knew of his affairs; there were rumors spread around the local community about her depression. Her husband made no attempt to invest in owning their own family home to live in; her husband did not look after the presentation of the rental property, nor did he employ someone else to do it; she was humiliated socially; on the domestic front, her husband criticized her food in front of the children; he criticized her parenting in front of the children (divisive). From earlier entries in WS we know that he 'belted' the girls, so why wouldn't he use physical punishment on Allison? Didn't the little one say: "daddy was mean to mummy!". Even at Trial her father-in-law and sister-in-law degraded her (evidence of family collusion with degradation). And that is just some of what we know.
There was evidence of physical, emotional and financial abuse IMO. Allison's cousin would be able to detail it much more succinctly IMO. Was the family doctor asked about bruising on her body at anytime? Have her children been asked 'did daddy ever hit mummy?' This evidence could be drawn together and collated in the current terms of Domestic Violence if someone had the time and passion. It would then be 'new evidence'.
My opinion only.

 

[Trooper]

Yes financial abuse is a significant factor. I just signed a petition on Change.org re this case, it has almost 10,000 signatures asking the AG to review the case and change of verdict. It's great that everyone seems to as indignant and angry as us.

I maintain that he is at nature a man who financially abuses anyone, men, women, children, wives, girlfriends, business partners, empoyees, .. friends, family, institutions. His brother, whom he owed $10,000 who had to get that off the Dad, and then he owed his Dad that on top of around $90,000 the silly Bwana/s had invested in Gerard..

His employees who were weeks behind in their pay, towards the end of Gerard's craziness..

His business partners, two of whom left without the money owing them , just to get away from his inbuilt hornswoggling shifty dodgy cheating business ways..

Even the pathetic Toni. ... the only time she ever got to stretch out in bed with Gerard ( the norm was the back of the car.. at her age!! ) .. when she rocked up at the Crown Casino for a unique all nighter, he tells her ' Toni, Toni, how can I put this on my credit card!!. . I cant!.. I didn't bring cash, either!!.. ' so she, Toni, pays Gerard to spend the night with her.

Now, folks. .. there is no other name for this than financial abuse.

 

[Fuskier]

I maintain that he is at nature a man who financially abuses anyone, men, women, children, wives, girlfriends, business partners, empoyees, .. friends, family, institutions. His brother, whom he owed $10,000 who had to get that off the Dad, and then he owed his Dad that on top of around $90,000 the silly Bwana/s had invested in Gerard..

His employees who were weeks behind in their pay, towards the end of Gerard's craziness..

His business partners, two of whom left without the money owing them , just to get away from his inbuilt hornswoggling shifty dodgy cheating business ways..

Even the pathetic Toni. ... the only time she ever got to stretch out in bed with Gerard ( the norm was the back of the car.. at her age!! ) .. when she rocked up at the Crown Casino for a unique all nighter, he tells her ' Toni, Toni, how can I put this on my credit card!!. . I cant!.. I didn't bring cash, either!!.. ' so she, Toni, pays Gerard to spend the night with her.

Now, folks. .. there is no other name for this than financial abuse.

BIB Gotta say Trooper I enjoy your written expression. Hornswaggling? :floorlaugh:

 

[BreakingNews]

Domestic violence is not just verbal or physical. A huge issue is emotional abuse. And that is exactly what GBC did to Allison for many years. Emotional abuse cuts deeper than physical abuse at times. Then when you finally stand up for yourself, the physical abuse starts.

 

[BreakingNews]

Correct me if I am wrong, but I thought the jury were instructed by the Judge to look at murder and manslaughter. I remember at the time hoping the jury didn't go for the lesser crime.

And the discussion about changing his plea was done without the jury present and out of sight of the overflow courts. At least without the jury present, for sure.

 

[Amee]

https://www.facebook.com/Dear-Allison-1463181660599833/?fref=nf

 

[McCoy]

Correct me if I am wrong, but I thought the jury were instructed by the Judge to look at murder and manslaughter. I remember at the time hoping the jury didn't go for the lesser crime.

And the discussion about changing his plea was done without the jury present and out of sight of the overflow courts. At least without the jury present, for sure.

Yes they were and they kept coming back to ask the difference between the two

 

[Couldbe]

Correct me if I am wrong, but I thought the jury were instructed by the Judge to look at murder and manslaughter. I remember at the time hoping the jury didn't go for the lesser crime.

And the discussion about changing his plea was done without the jury present and out of sight of the overflow courts. At least without the jury present, for sure.

In Judge Byrne's summing up, he did instruct the Jury as you say. I guess the problem lies in that the charge had remained as 'Murder'; although the discussion, as you say, took place out of sight of the overflow courts, I imagine that it could have resulted in the charge being changed to 'Unlawful killing' (as Alioop explained covers both Murder and Manslaughter). Maybe if that had resulted, Gerard could have then pleaded guilty to Manslaughter ...... which may have reduced his sentence by that admission. Probably worth a try at the time, but he was denied that opportunity. Maybe Judge Byrne would have been wise to tell the Jury that he had denied the change (don't know if that happened).
My interpretation now is that, in Judge Byrne instructing the Jury the way he did, the Jury had to be sure that there was 'spur of the moment intent' existing in the evidence ...... and the Appeal Judges have found there was not .... and hence have now reduced the verdict to Manslaughter.
..... it is that 'spur of the moment intent' interpretation in Law that I am mad about.

 

[Amee]

Justice Byrne told the jurors for the first time on Wednesday they could consider a manslaughter verdict if they found Mr Baden-Clay not guilty of murder.


To find Mr Baden-Clay guilty of manslaughter, the jury does not need to conclude he intended to kill his wife, only that he did so unlawfully.

Read more: http://www.brisbanetimes.com.au/que...lleged-lies-20140711-zt3yv.html#ixzz3ttYl4b3U

​

 

[Waitingnow]

Those scratches on his face were not from some little argument they had that night ...oh and maybe possibly she fell and hit her head and he didn't mean to kill her......

THOSE scratches were the DESPERATE marks of a DESPERATE woman DESPERATELY trying to defend her LIFE.
He KNEW what he was doing - while she was trying to save her life - he kept killing her - THAT IS MURDER!

How can they say there was no evidence that he intentionally killed her??

 

[they'll get you]

No, just my own fictionalised account.


Sent from my iPhone using Tapatalk

Fictional? I heard what was actually said and you were spot on Flinders.

I little bit of ESP happening there.

 

[they'll get you]

When are we protest marching in Brisbane?

Brisbane and every other capital city in Aus. headed by Rosie Battie, Joan Harnum and every other mother of murdered children.

What a slap in the face for all domestic violence victims.
I fume to think he's got some sort of hero worship amongst his bunk buddies.
Oh that's right he was reading up on the legal system. He's now an advisor.

 

[they'll get you]

Allison Baden-Clay’s relatives upset by continued lies and no remorse from Gerard

RELATIVES and friends of Allison Baden-Clay have spoken for the first time of the shock of seeing her killer husband’s conviction downgraded and told how he had still not apologised or showed remorse.

Jodie Dann, Allison’s cousin, said Gerard Baden-Clay put her family through hell by denying any knowledge of how his wife died and was not being held accountable for his lies and deception.

“Shock and disbelief,” Ms Dann told The Courier-Mail when asked about the family’s reaction to the decision.

“He stood up there and said he didn’t do it. Now we’ve heard well, maybe he probably did, but it might have been an accident.”


http://www.couriermail.com.au/news/...d/news-story/0f1c0481d6581b9da67bc53d7c1c34ee

 

[Couldbe]

Justice Byrne told the jurors for the first time on Wednesday they could consider a manslaughter verdict if they found Mr Baden-Clay not guilty of murder.


To find Mr Baden-Clay guilty of manslaughter, the jury does not need to conclude he intended to kill his wife, only that he did so unlawfully.

Read more: http://www.brisbanetimes.com.au/que...lleged-lies-20140711-zt3yv.html#ixzz3ttYl4b3U

​

Extract from: http://www.brisbanetimes.com.au/que...lleged-lies-20140711-zt3yv.html#ixzz3ttYl4b3U
“You may only use the lie about cutting himself shaving - if a lie it is - as tending to prove the element of murder of an intention to kill or to cause grievous bodily harm if, on the whole of the evidence, the accused lied because he realised that the truth of the matter in that respect would show that, in killing his wife, he had intended to kill her or to cause her grievous bodily harm,” Justice Byrne said.
“It may be that, even if you were to find that the accused lied about his facial injuries because he realised that the truth would show him to be the killer, still you would not conclude that the lie shows that he realised that her death after scratching him with her fingernails would show that he had killed her intentionally.”
The jury’s deliberations were interrupted on Thursday when it was revealed one juror had downloaded material from the internet. The material was from an overseas commentator who wrote about the role of a jury in a criminal trial
Mr Baden-Clay is accused of killing his wife Allison at their home in the affluent western Brisbane suburb of Brookfield on April 19, 2012, and dumping her body on the banks of Kholo Creek at Anstead, 14 kilometres away.
He has pleaded not guilty to murder.
Justice Byrne told the jurors for the first time on Wednesday they could consider a manslaughter verdict if they found Mr Baden-Clay not guilty of murder.
To find Mr Baden-Clay guilty of manslaughter, the jury does not need to conclude he intended to kill his wife, only that he did so unlawfully."

It seems that although Judge Byrne advised them regarding using crucial evidence to conclude that there was 'intention killing', the Jury still found him 'guilty of murder' as charged........ the Appeal Judges did not agree that proof of intent was inherent in the evidence.
I don't believe that it was only those two pieces of evidence that were taken into account by the Jury.

 

[they'll get you]

I seem to remember Allison's cousin saying all of the signs were there — isolating Allison from friends and family, listening in on phone calls via the baby monitors ... I will have to look back. However, this was not part of the evidence, just hindsight.

Poss, how can we forget that massive bruise on Allison's leg when she was wearing the silver/grey evening dress.

I'm not saying it was him, it must've been a horse kick.

 

[Couldbe]

Brisbane and every other capital city in Aus. headed by Rosie Battie, Joan Harnum and every other mother of murdered children.

What a slap in the face for all domestic violence victims.
I fume to think he's got some sort of hero worship amongst his bunk buddies.
Oh that's right he was reading up on the legal system. He's now an advisor.

They'll get you I am thinking that his Jail Murderer fraternity might now be thinking what a weak apology for a murderer he is ..... that he used an accidental killing of his wife and mother of his children to pull off ridding himself of her and collecting the large amount of insurance money and superannuation. Not exactly up to their standard of murder.