Gerard Baden Clay's murder appeal

[~Katie~]

A few people here mentioned (and this was my understanding also) that during the appeal, GBC's legal team weren't admitting he killed her, just arguing that there wasn't enough proof of intent.

So I was surprised to read this statement from Queensland University criminal law Professor Heather Douglas Heather Douglas:

[Regarding Re-sentencing]'Manslaughter is the second most serious offence but sentences for manslaughter are notoriously various and he doesn't have any prior convictions for violence.

'He will likely argue he was going through significant stress at the time with a relationship breakdown [with his wife Allison] and his financial situation.

'Both sides agree that he killed her.

http://www.dailymail.co.uk/news/article-3355086/Petition-calls-overturn-decision-downgrade-Gerard-Baden-Clay-s-murder-conviction.html

BBM. I guess he will not be appealing then, to continue to protest his innocence

I'm very curious about the sentencing submissions that will be put forward by the Defence. Until now, I had assumed that the Defence would put forward glowing references about GBC etc but would mention nothing about his part in her death (because he was still protesting his innocence and the defence hadn't yet, according to Prof. Douglas, "agreed that he killed her").

Professor Douglas is now suggesting that they will put forward mitigating factors surrounding his actions on that night, such as relationship breakdown, financial stress etc. Wonder what they will say in regards to his remorse?

 

[Couldbe]

A few people here mentioned (and this was my understanding also) that during the appeal, GBC's legal team weren't admitting he killed her, just arguing that there wasn't enough proof of intent.

So I was surprised to read this statement from Queensland University criminal law Professor Heather Douglas Heather Douglas:



BBM. I guess he will not be appealing then, to continue to protest his innocence

I'm very curious about the sentencing submissions that will be put forward by the Defence. Until now, I had assumed that the Defence would put forward glowing references about GBC etc but would mention nothing about his part in her death (because he was still protesting his innocence and the defence hadn't yet, according to Prof. Douglas, "agreed that he killed her").

Professor Douglas is now suggesting that they will put forward mitigating factors surrounding his actions on that night, such as relationship breakdown, financial stress etc. Wonder what they will say in regards to his remorse?

Katie, still without admission, no need for remorse! If accepting downgrading to Manslaughter can be construed from not appealing against it, then there is probably a 'legal technicality' to cover it!

Motive of panic, in hiding Allison’s body at the creek (no proof she was actually dead when placed there, but the act of a lethal weapon causing her death at the creek …would that not then constitute a case of Murder? Or just another accident?) could have been panic after what happened between Gerard and Allison, and could have been the reason why he acted the way he did; But continuing to tell lies under Oath about the scratches by demonstrating how he had cut himself shaving……not actually believed. (Just him trying to evade the truth!).

Evidence about blood in car didn’t conclude age of blood, but it did belong to Allison, and she was transported to the creek.

Motive of solving his financial debts by collecting her insurance policy moneys was reinforced by his father submitting a claim on the day Allison’s body was discovered. To hurriedly get the money and ………………… who knows what?

Evidence re her missing phone: The phone belonging to Allison was traced to the area surrounding her home, but it has never turned up. Who else but Gerard disposed of it; why get rid of her phone though?
He would have known Telstra records show use of his/her phones.
Leaving her phone with her body, or somewhere for it to be found wouldn’t necessarily have implicated him.

………… Circumstantial evidence considered not strong enough to support a motive for Murder!

 

[~Katie~]

/snip

………… Circumstantial evidence considered not strong enough to support a motive for Murder!

Yes, I agree with this, and can understand why the decision handed down.

I guess the main point of my post was that I was really surprised by Professor Douglas' statement that "Both sides agree that he killed her", after reading (and agreeing with) comments that were posted here by people who work in the legal field.

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.

and

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 agree with alioop and JCB, and believe that the defence only agreed there was enough evidence of an unlawful killing, but didn't agree or make any admission that he killed her.

... 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 bit accurate.

Yes- this is why I was very surprised by Professor Douglas' comments saying that the defence had agreed that he killed her.

(Though her quote did appear in the Daily Mail - not exactly the world's most trustworthy news source...)

 

[alioop]

Thank you Alioop. Very helpful.
However, the Jury seemed to take the downward movement of the scratches, the Coroner's view that there was most likely significant injury in the soft tissues of her face, that there was a hematoma-type injury on her head, that there was blood in the car, that it was an unnatural death as evidence of murder. The downward movement of the scratches indicated that the victim was most likely horizontal to the murderer and had reached for his face, dug her nails in leaving deep scratches - in her desperate struggle for life. This was not an unreasonable hypothesis in my opinion.

Personally I think the trial judge was right that there was enough evidence for the jury to find intent to murder, though I think that's spur of the moment and not premeditated. But the court of appeal disagrees.

I have no idea what that purported comment from Professor Douglas is all about that both sides agreed he killed her. The defence made no such admission at the appeal and I was there.

 

[fairydust]

Personally I think the trial judge was right that there was enough evidence for the jury to find intent to murder, though I think that's spur of the moment and not premeditated. But the court of appeal disagrees.
.

The appeal documentation shows quite well why the murder charge was downgraded to manslaughter. There simply wasnt proof of intent. As such, by default, it then falls to manslaughter.

 

[Trooper]

I cant find any mention in the conclusions given by the Appeal Court, of the ambience of Gerard pre -murder. Evidence was given that he was in a foul mood, having had a run in with Toni, which required , from memory about 3 hangups by both and redials for the last word. .. his bankcard being knocked back at the supermarket, his week at work with the deadline of his debt repayment moving forward inexorably, his ongoing crossness about having to fire Toni and have Allison in the office. .

Its as if Gerard came home that night from a meditation retreat run by the Carmelites. All relaxed and mellow.

 

[Trooper]

The appeal documentation shows quite well why the murder charge was downgraded to manslaughter. There simply wasnt proof of intent. As such, by default, it then falls to manslaughter.

Actually, the appeal documentation shows nothing of the sort, so far from 'quite well' as to call into question one's capacity to judge. .

An appeal court judgement isn't the last word, I feel I must make this clear. It can be appealed ,also. .

And... there is the political and community backlash that can, and sometimes does make all the difference. . it doesn't appear that the community in general is willing to accept the perspective of the Appellate court, and does, in fact, require a rethink.

 

[Fuskier]

FYI
http://www.sunshinecoastdaily.com.au/news/60000-sign-petition-calling-baden-clay-appeal/2870720/

60,000 sign petition calling for Baden-Clay appeal
by Rae Wilson | 11th Dec 2015

"We are requesting the QLD Attorney-General files an appeal against this decision."

TENS of thousands of people from all over Australia have signed a petition asking the Queensland Attorney-General to file an appeal in the Gerard Baden-Clay case. By the time this story was submitted for print, the petition was nearing 60,000 signatures.
"... People signing the petition were from the far reaches of the country - from Perth to Hobart to rural South Australia, Victoria and NSW. Some signatures came from Taiwan, Vietnam and Europe"...

 

[Fuskier]

FYI
http://www.sunshinecoastdaily.com.au/news/opinion-baden-clay-killer-his-story-never-changed/2870382/

Excerpt by Lockhartlofty - Mount Lofty:

""Apparently" the original "judge" (politically selected solicitor) got it wrong, or so the three Appeal solicitors (judges) claim (look up their orders) all of this shows why we MUST change the current legal system to a more balanced system, the unjust and corruptible ADVERSARIAL system which encourages and supports "made up stories" by "defense" Lawyers must END!
We need an INQUISITORIAL system, a Tribunal of Judges trained as JUDGES, NOT from the ranks of "old school tie" solicitors.
These newly trained Judges would have INVESTIGATIVE POWERS to get to the real "evidence" put to them by a Prosecutor, Police and defense solicitors".

That smell is pervasive!

 

[~Katie~]

Thanks for the link, Fuskier.

Good to see an opinion piece clarifying the incorrect reporting that GBC had admitted to unlawful killing.

Baden-Clay's defence team told the appeal court the evidence could point to an "unintentional" killing, that an altercation had occurred - she fell and died.

They argued if that had happened, he might have dumped her body in a panic. They said dumping her body was not an act that on its own could prove intent to murder.

Unfortunately, some people took this hypothesis put to the court as gospel - that he had changed his story.

But the lawyers had simply put viable alternatives to the Crown scenarios and the appeal justices accepted the alternatives could not be ruled out.

Piercefeld's comments though :facepalm: "The scratches were EXACTLY the same length as a razor", "He did not lie"

Piercefield sounds as though he/she probably believed the caterpillar story too.

 

[Couldbe]

FYI
http://www.sunshinecoastdaily.com.au/news/opinion-baden-clay-killer-his-story-never-changed/2870382/

Excerpt by Lockhartlofty - Mount Lofty:

""Apparently" the original "judge" (politically selected solicitor) got it wrong, or so the three Appeal solicitors (judges) claim (look up their orders) all of this shows why we MUST change the current legal system to a more balanced system, the unjust and corruptible ADVERSARIAL system which encourages and supports "made up stories" by "defense" Lawyers must END!
We need an INQUISITORIAL system, a Tribunal of Judges trained as JUDGES, NOT from the ranks of "old school tie" solicitors.
These newly trained Judges would have INVESTIGATIVE POWERS to get to the real "evidence" put to them by a Prosecutor, Police and defense solicitors".

That smell is pervasive!

Exerpt from: http://www.sunshinecoastdaily.com.au/news/opinion-baden-clay-killer-his-story-never-changed/2870382/
"When lawyers make these arguments, they put forward other possible scenarios.
The Crown does the same thing to sell their version of events to a jury, especially when presenting a circumstantial case.
Baden-Clay's defence team told the appeal court the evidence could point to an "unintentional" killing, that an altercation had occurred - she fell and died.
They argued if that had happened, he might have dumped her body in a panic. They said dumping her body was not an act that on its own could
Unfortunately, some people took this hypothesis put to the court as gospel - that he had changed his story.
But the lawyers had simply put viable alternatives to the Crown scenarios and the appeal justices accepted the alternatives could not be ruled out.
That creates doubt, reasonable doubt.
I, though, have no doubt Baden-Clay lied on the stand, repeatedly.
And I understand why the community is both shocked and angered at the decision, even if sound legal reasoning is behind it.
But Gerard Baden-Clay is not off the hook yet - his re-sentencing is yet to come, and the way he conducted himself in the witness box may yet play a big part in the jail term handed down.
And his actions could be declared a serious violent offence which means he could be ordered to serve 80% of his sentence.
But he has not had his charge downgraded because he changed his story."

JMO Evidence during the trial is the only evidence which is examined (not his changing story initially when reported missing of 'she went for a walk' late at night / no it was early in the morning).
Yes, he has consistently denied knowing anything ... other than that 'he went to bed and woke up in the morning and Allison was missing'.
Earlier, a scenario was tried on at the Committal that she might have committed suicide, but that was then dropped before the trial (but suicide was inferred and discussed during the Trial).

But he has not had his charge downgraded because he changed his story.
His lying explanations of various events (which were Trial evidence) were consistent ….. how could it be judged if and when he was telling the truth!
The hypothetical scenario used by his Defence during the Appeal may not have been ‘an unreasonable’ scenario containing ‘spur of the moment intent’ (as put forward and explained by Alioop on Websleuths), but in my opinion his Trial explanations (viewed to be lies) in relation to his defending the charge of Murder, would render the hypothesis a shaky scenario to accept as a valid hypothesis.


...and was what the Trial Judge said to the Jury in relation to possible Manslaughter in his summing up.

 

[alioop]

Excellent post Couldbe and I like the description of the shaky scenario hypothesis verses a valid hypothesis. That's what the appeal courts decision boils down to. A difference in legal finding to the trial judge of the hypothesis, one shaky and one valid.

FYI
http://www.sunshinecoastdaily.com.au/news/opinion-baden-clay-killer-his-story-never-changed/2870382/

Excerpt by Lockhartlofty - Mount Lofty:

""Apparently" the original "judge" (politically selected solicitor) got it wrong, or so the three Appeal solicitors (judges) claim (look up their orders) all of this shows why we MUST change the current legal system to a more balanced system, the unjust and corruptible ADVERSARIAL system which encourages and supports "made up stories" by "defense" Lawyers must END!
We need an INQUISITORIAL system, a Tribunal of Judges trained as JUDGES, NOT from the ranks of "old school tie" solicitors.
These newly trained Judges would have INVESTIGATIVE POWERS to get to the real "evidence" put to them by a Prosecutor, Police and defense solicitors".

That smell is pervasive![/QUOTE
Exerpt from: http://www.sunshinecoastdaily.com.au/news/opinion-baden-clay-killer-his-story-never-changed/2870382/
"When lawyers make these arguments, they put forward other possible scenarios.
The Crown does the same thing to sell their version of events to a jury, especially when presenting a circumstantial case.
Baden-Clay's defence team told the appeal court the evidence could point to an "unintentional" killing, that an altercation had occurred - she fell and died.
They argued if that had happened, he might have dumped her body in a panic. They said dumping her body was not an act that on its own could
Unfortunately, some people took this hypothesis put to the court as gospel - that he had changed his story.
But the lawyers had simply put viable alternatives to the Crown scenarios and the appeal justices accepted the alternatives could not be ruled out.
That creates doubt, reasonable doubt.
I, though, have no doubt Baden-Clay lied on the stand, repeatedly.
And I understand why the community is both shocked and angered at the decision, even if sound legal reasoning is behind it.
But Gerard Baden-Clay is not off the hook yet - his re-sentencing is yet to come, and the way he conducted himself in the witness box may yet play a big part in the jail term handed down.
And his actions could be declared a serious violent offence which means he could be ordered to serve 80% of his sentence.
But he has not had his charge downgraded because he changed his story."

JMO Evidence during the trial is the only evidence which is examined (not his changing story initially when reported missing of 'she went for a walk' late at night / no it was early in the morning).
Yes, he has consistently denied knowing anything ... other than that 'he went to bed and woke up in the morning and Allison was missing'.
Earlier, a scenario was tried on at the Committal that she might have committed suicide, but that was then dropped before the trial (but suicide was inferred and discussed during the Trial).

But he has not had his charge downgraded because he changed his story.
His lying explanations of various events (which were Trial evidence) were consistent ….. how could it be judged if and when he was telling the truth!
The hypothetical scenario used by his Defence during the Appeal may not have been ‘an unreasonable’ scenario containing ‘spur of the moment intent’ (as put forward and explained by Alioop on Websleuths), but in my opinion his Trial explanations (viewed to be lies) in relation to his defending the charge of Murder, would render the hypothesis a shaky scenario to accept as a valid hypothesis.


...and was what the Trial Judge said to the Jury in relation to possible Manslaughter in his summing up.

 

[they'll get you]

Gerard Baden-Clay deserves the full force of the law at sentencing

In mind-bending legal logic, three appeal judges ruled Baden-Clay may have unintentionally killed his wife, Allison, during an argument – despite him spending four days in the witness box denying there ever was any argument.
The contentious appeal decision sets Baden-Clay, 45, up for possible immediate release. Lawyers say it is not beyond the realms of possibility he could be set free for time already served when he is re-sentenced as early as next month. It has caused community bewilderment and outrage, summed up in one front page headline this week: “The law is an *advertiser censored*”.

He robbed three girls of their mother. He cold-bloodedly dumped her body under a bridge, leaving her exposed to the elements and potentially washing away evidence to conceal his awful crime. He left her family, including his children, waiting in desperation until she was found by chance 10 days later. He insinuated a depressed Allison took her own life. He lied to everyone, including the jury.

The maximum sentence for manslaughter is life and it’s what he deserves.

http://www.couriermail.com.au/news/...g/news-story/be5aabc36dca07139f37829f25c735af

 

[they'll get you]

The Baden-Clay decision is not a setback for domestic violence campaigns


Gerard Baden-Clay has not been “let off” for killing his wife. In fact, he has at last implicitly admitted his culpability. The sentencing court next year will be able to take into account his deceitful and arrogant post-offence conduct as well as details about any prior domestic and family violence, if available.


http://theconversation.com/the-bade...setback-for-domestic-violence-campaigns-52199

 

[Fuskier]

FYI
http://theconversation.com/the-bade...setback-for-domestic-violence-campaigns-52199

The Baden-Clay decision is not a setback for domestic violence campaigns
December 12, 2015 6.17pm

Whatever did occur in the Baden-Clays’ relationship, no evidence of a history of domestic violence was placed before the original trial court. Therefore, this was the basis on which the Court of Appeal had to determine the matter...

How/why was the alleged history of domestic violence/abuse omitted at trial?

 

[they'll get you]

How could Allison's death have been her own fault?

The fact that no-one is really sure how Allison died means that nobody can say for certain that Gerard intended to take her life. According to the judgement, he may simply have "delivered a blow which killed her."

Then, "in a state of panic and knowing that he had unlawfully killed her, he took her body to Kholo Creek in the hope that it would be washed away."

Ugly, right?

There’s more: the judgement also says – and there is absolutely no evidence to back this up, by the way, since Gerard never said this – that Allison might have "attacked him, scratching his face" and - wait for it - in order "to make her stop, he killed her without intending to do so."

See?

The poor bloke may have been trying to make her stop.


http://www.aww.com.au/latest-news/l...stem-is-letting-allison-baden-clay-down-23937

 

[Couldbe]

Thank you They’ll get you for your links, which explain the legal reasoning and why their ‘hands are tied’ in dispensing the law to suit the case against Gerard Baden Clay; especially to 69,602 of us: https://www.change.org/p/qld-acting...aden-clay-s-murder-conviction-to-manslaughter

JMO:
Even his own ludicrous lies connected with his exploits in solving his crime for himself have worked in his favour!
The dual benefits (Insurance policies) are accepted as a bonus that comes with the crime!

Or: surely,

In not being able to prove there was intent at the time of the crime, that initial intent evidenced itself later (when the bonus was claimed at the very earliest opportunity; not even a day later than when Allison’s body was found; why wouldn’t Appeal Judges find this strange and unreasonable?).

..….. and so then supported the allegation that intent was there at the time of crime?

 

[alioop]

What I am struggling with is if the most senior trial judge on the Supreme Court, Judge Byrne, is essentially ( though surprisingly not directly) told by the court of appeal that he was wrong in dismissing a motion by the defence seeking to take murder off the table for lack of evidence to intent, then where is the confidence in any trial judge.

I am pleased that there is some better media commentary finally coming out to explain to the public that he is still a convicted killer, won't get Allison's insurances and should get a heavy sentence.

 

[McCoy]

FYI
http://theconversation.com/the-bade...setback-for-domestic-violence-campaigns-52199

The Baden-Clay decision is not a setback for domestic violence campaigns
December 12, 2015 6.17pm

Whatever did occur in the Baden-Clays’ relationship, no evidence of a history of domestic violence was placed before the original trial court. Therefore, this was the basis on which the Court of Appeal had to determine the matter...

How/why was the alleged history of domestic violence/abuse omitted at trial?

No one really summarized it as such even though there were mentions of financial control, emotional abuse and controlling behaviour. However D/S Ainsworth spoke publicly after the trial and verdict and said it was important to remember that domestic abuse is not just physical but also included emotional, financial etc and this related to Allison

 

[Sor Juana]

What I am struggling with is if the most senior trial judge on the Supreme Court, Judge Byrne, is essentially ( though surprisingly not directly) told by the court of appeal that he was wrong in dismissing a motion by the defence seeking to take murder off the table for lack of evidence to intent, then where is the confidence in any trial judge.

I am pleased that there is some better media commentary finally coming out to explain to the public that he is still a convicted killer, won't get Allison's insurances and should get a heavy sentence.

Re: Allison's insurances, Thank you, Alioop, that's a relief.