NO BAIL! Australia - Allison Baden-Clay, Brisbane QLD, 19 April 2012 -#30

[Aussie_expat.sg]

A hero's boy


Nyst work, if you can get it

BBM

Grannie, you seriously crack me up! you certainly are a 'granny with an edge' and your avatar proves it! I love your dry sense of humour.

I'm also often very surprised at your level of technology knowledge too - if you really are a grannie, then I think your knowledge is well beyond most of your peers!

 

[Fuskier]

Lawyers in Qld cannot 'dream up' defences. The only defences or excuses available are those prescribed in the criminal code. The taking of any drug, or combination of drugs, does not constitute a defence or excuse. Drug use may provide some evidence which goes toward one of the existing statutory defences such as diminished responsibility. In order for that (partial) defence to be raised, the court would require expert medical evidence to the effect that the accused was substantially impaired at the time of the offence. Not that he may have been, or that there are known negative effects of a particular offence. This evidence (if led by a defence medical expert) would also be tested by a panel of psychs assiting a judge of the Mental Health Court. The submission of a lawyer that the accused was in fact suffering such an impairment carries no weight at all.

If there is such an advice from the Mental Health Court, then that becomes part of the evidence which a jury then must weight up. They are not bound to accept that the accused did take the drug, that it had any effect, that it had the substantial effect needed for the requisite impariment, or that it was taking such effect at the actual time of the killing. To establish all that, the defence would need exceptionally strong evidence. Furthermore, any other acts or omissions of the accused which were inconsistent with the requisite deprivation of a capacity would weigh strongly against the defence.

Desperate accused persons can instruct their lawyers to make submissions about all sorts of defences, and that is purely the decision of the client. Any defence lawyer who sat around trying to concoct a defence or excuse which had no grounding in the admissible evidence, or which was frivolous, would have a very short career in Queensland. MOO.

HAWKINS: Thank you for this grounding post. Appreciated.

 

[Hawkins]

G'Day Hawkins - yes, I tend to agree with you as to the way it SHOULD be. But see my post just a couple back for some references to where homicidal somnambulism HAS been accepted as a defence in murder cases.

It can't be led as a defence in Qld if it is not in the Code, regardless of what defences are permitted in other jurisdictions. These links and cases are interesting but do not create any law here. If the claim is that the accused was suffering from 'sane automatism' that could relate either to a defence of intoxication, act independent of will or insanity (all of which are defences here). But the evidentiary burden on an accused to establish that level of deprivation in a murder case, with the requirement of indepenent medical assessment, makes it a nonviable approach. The defence would be unlikely to waste the client's money on it. Other evidentiary problems also make it impractical. Those who suffer from sane automatism don't hide bodies or take significant action to conceal their actions. But desperate people can make desperate claims of course, so you are absolutely right in thinking the client may want the lawyer to investigate even the most remote chances.

 

[Nads]

So, are we up to pre-meditated sleep-killing?

 

[Hawkins]

HAWKINS - I would be interested in your view as to how the July 9 mention hearing may unfold? Will he have to enter a plea that day? Thanks.

You don't enter a plea at a mention. You may enter a plea at a committal but you don't have to. You are required to enter a plea once the indictment is presented. The indictment is a document which sets out exactly what you are charged with and the court it will be tried in and when. The indictment is read out at the start of the trial and its referred to as an arraignment. The judge's associate reads out the charge and asks the accused how they plead. All MOO.

 

[CaseClosed]

So, are we up to pre-meditated sleep-killing?

:floorlaugh:

 

[DrWatson]

But desperate people can make desperate claims of course, so you are absolutely right in thinking the client may want the lawyer to investigate even the most remote chances.

Legal points all taken and duly noted - thankee kind sir (presumably a "sir")

The whole reason I mentioned the Stilnox defence in the first place was that it has hit the media again, even in yesterday's Sunday Mail, in regard to sporting identities and its use in training. And of course, mention was then made in some media outlets about Stilnox and the whole somnambulism thing.

And, as you point out, desperate people ask lawyers to try desperate measures - and I'm sure they read the Sunday Mail as well......

It was mere postulation on my part. And as I have stated a couple of times, I personally find it all a bit hard to swallow - especially the APPARENT sanity and organisation of the events. Although there does seem to be a lot of DISorganised events too.

 

[Fuskier]

Any Qld lawyer who made some sort of deal with one of thier clients to exchange film (or any other publication) rights for representation in a criminal matter would be struck off. The idea that an experienced lawyer would do this is fantasy. Further to the Stilnox suggestion, I can think of no way that it's use could lead to a claim of diminished responsibility without a significant existing mental health problem. Even then, it's chances of making its way to a jury would be miniscule. The only other potential application I can think of would be in relation to an intoxication defence. But for a murder charge the independent medical evidence needed to establish that the accused was so intoxicated by the drug (beyond a reasonable doubt) that they could not form the intention to kill would be formidable indeed. That level of intoxication would require eye witness accounts of the accused's behaviour at the time. All MOO.

HAWKINS: Thank you for your grounding posts just when we need them.

 

[minni]

If I were a defence lawyer, trying the Stillnox defence, I would be saying that my client had taken the drug, and I would have no idea if his father had taken it too. And maybe the father DOES have full recollection, which is why he refuses to cooperate with the QPS? But the point, from the defence point of view, would be that GBC would have been operating under the effects of the drug.

Pure hypothesis, of course, but it has been documented, and there is even precedence in court.

The guilt or otherwise of another party is currently not in question, in legal terms as far as I know (no other arrests have been made) and even if it were, the Stillnox defence may still apply to GBC's alleged actions that night.

Just a possibility - I hope they don't try that one. But if they do, as I mentioned above, then ALL proof of what GBC is alleged to have done becomes irrelevant if the Stillnox effects are accepted by the court.....

Personally, I have to say that the adverse effects of Stillnox have probably been hyped out of all proportion by the media, to the point where is have become a very convenient drug with extremely convenient side effects. But that's just cynical old moi....!

Yes, I was under that exact impression based on stories I'd read in the media. I actually thought the drug would be banned by now after reading about it, and (I think) a young woman dying? Its been portrayed as having terrible side effects...but so have other drugs such as Champix, the stop smoking tablet.
Do you believe Stillnox is not as bad as its been made out to be, or the adverse side effects rarer than insinuated?
sorry guys if you've gone over all this today..I'm still on page 11 or 12

 

[marlywings]

Whether the Defence team uses this drug (or any other) as playing a part in their defence case, I believe it is still not that important. Many crimes have been committed by individuals under the influence of drugs or alcohol and they are still found guilty. IMO.

I've just been reading through this longg list of Murder & Wilful Murder cases/sentences in West Australia. I'm sure in amongst this lot there are some who had fancy pants Defence teams & tried to use the "under influence of drugs/alchohol"...there's even one case in which the killer used Stilnox.

All of these cases confirm your comment..."not that important" ...as all of the offenders received a life sentence....& there's loads of them!!!...

http://www.dpp.wa.gov.au/content/murder.pdf

 

[grannie]

The taking of any drug, or combination of drugs, does not constitute a defence or excuse. Drug use may provide some evidence which goes toward one of the existing statutory defences such as diminished responsibility.

Are all drugs treated the same? One would think, the illegal drugs and prescription medications (!) have different positions in the eyes of the law, don't they?

Australian Supreme Court Justice Rules Zoloft Caused Man to Murder his wife

The only problem for GBC's defence crew will be to convince their client to confess if they attempt to go that path. If it was done under the influence of a drug, then the accused has to plead guilty, which is not the case with our boy. JMO.

 

[minni]

When my daughter started walking she used to put objects of interest into her nappy bag, which was attached to the pram.

Most things I noticed and put back on the shelf, but once she placed two little present bows in it and another time a pack of three bibs in it! I even showes my bag walking out of Kmart and the woman smiled and said goodbye. When I got home I could not believe it! I was so embarrassed!

haha...they are the cutest things our children arent they? last week, I lost my 5 year old at the local IGA...I looked all over, then went out to the carpark and found him sitting in the car with a kinder surprise, chocolate all gone, and well on his way to constructing the toy that came with it!!! I had to send him back in with a $5 note to pay for it!!
and thats just the most recent of a long line of embarrassing stories from all 4 of my kids!!

 

[Aussie_expat.sg]

I agree Fuskier re what appears to be "unfairness/unequal match"....it seems downright morally wrong also.

I don't know about anyone else, but I only have to look at the amount of criminals in prisons across Australia who all thought of themselves as being smarter than the law & above the law. This tells me the "12 selected men and women who are considered to be average, reasonable people in the community" are indeed intelligent enough to see right through any games these "highly educated, highly trained Legal Eagles" like to play.

Amazing post, Fuskier. I think it's so true what you've said...The pursuit of truth and justice should not be about who can outwit or fool who.

I really do hope, as you do, that the prosecution team are excellent educators and can patiently and clearly instruct the members of the jury so that they will not be confused or distracted by the defence's attempts to minimise the accused's alleged part in this crime.

Allison deserves justice.

Fuskier, Marlywings and YourNicked....you all touch on the things that have really worried me since I spent three years following the Caylee Anthony case in the US. I just COULD NOT BELIEVE that the jury could take the evidence presented at court and decide that there was reasonable doubt, based on a heap of crock made up by the defense in the last hours. It would be easy to just dismiss this incident with "ok, so this time they just chose a bunch of dumb asses" but the role that highly manipulative lawyers play in intimidating witnesses and influencing the jury cannot be understated. And the jury selection process can be the first nail in the coffin of a fair outcome.

I'm hoping that we get a fair and intellgent jury - fair to BOTH sides, and intelligent enough to synthesise the total information available to them and make a decision

 

[grannie]

if you really are a grannie

Thanks for your kind words. I am not really a granny but would love to become one, that is live up to that age. Also, I am a European by origin, and English is not my first language, not even second, which is un secret de Polichinelle. That's why it may look like a dry humour?..

 

[DrWatson]

Couple of interesting ones here in Queensland involving Stilnox (but not murder):

http://www.couriermail.com.au/ipad/officer-wins-case-of-drug-driving/story-fn6ck45n-1226085892801

Here's one about a case in South Australia, but mention is made of a Queensland case:

http://www.adelaidenow.com.au/still...-south-australia/story-e6frea6u-1225844786735

In July 2008, Queensland prosecutors dropped charges almost identical to those facing Barber against a 36-year-old Stilnox user who drove his car into a power pole.

 

[Aussie_expat.sg]

I was ill this last weekend, so occasionally "lurked" but didn't really feel up to posting. Couldn't stop sneezing long enough to look at the screen properly. Wouldn't catch me dead on Skype today, the old nose is dry and peeling.

Today I have looked through all your posts and just wish that I personally knew a lot of you and could round you all up and go for coffee. So many of you are thoughtful, compassionate, witty and fun! Aussies and US folks....love you all! I work with a lot of US colleagues, and have a lot reporting to me...so I get to deal in US timezones a lot. Apart from missing sleep due to conference calls, I thoroughly enjoy collaborating with my US buddies.

but the Aussies....oh my....you make me homesick guys!

 

[BrissyLass]

I knew about the update last night but i didn't know until today you could legally appoint more than one lawyer. Oh well i guess you learn something new everyday. :banghead:

I'm still waiting for more to come out about this latest development

After a lot of years working with lawyers and barristers....I have never once seen a client come through that had lawyers working for him or her that are from different law firms, i find it puzzling....JMO

 

[minni]

AHA......my ex husband was JUST like this....fly into a rage....if in the car and someone annoyed him he would stalk them. Sulk for days....lock himself away in the bedroom (I had to sleep on lounge)...only come out to go to work....throw food at the wall if he didnt approve.....etc etc.....the instant rage thing....NBC....it is so creepy and scary being near someone that does that.

Praise the LORD you said ex.......... he sounds 'extremely angry'
x

 

[Aussie_expat.sg]

Thanks for your kind words. I am not really a granny but would love to become one, that is live up to that age. Also, I am a European by origin, and English is not my first language, not even second, which is un secret de Polichinelle. That's why it may look like a dry humour?..

:HHJP::HHJP: Really? well you write very well, and I wish I could write in your language (if your comment about secrets is an indication) because I'm going there for Christmas with family.

and I TOO wish I was a Grannie and I really AM of age now...but I just need my kids to get their acts together and find partners! My sister-in-law was a Grannie at 40

 

[Fuskier]

KEENTOKNOW: Thanks. Seems some would be after making big bucks, and one may wish to act as their media manager under the guise of being a lawyer? Hit the nail on the head! Need a fairly powerful, dominating personality to do that too.