Allison Baden-Clay - GENERAL DISCUSSION THREAD #39

[alioop]

It seems that the prosecution has so far agreed to 35 out of about 45 requests from the defence for cross examination of witnesses at the committal. This is not the trial. The trial only occurs if GBC is committed to stand trial at the committal hearing. So there are another 10 requests still to sort out. Also out of the 35 already agreed, the prosecution and defence still need to agree on the scope of the cross examination of about 20 of those witnesses.

So another mention on the 12th November for the magistrate to get an update on this progress. The date on the 20th Nov still stands to deal with any requests for cross examination that have not been agreed to, to be decided by the magistrate. No date has been set for the committal hearing.

The reason for all this is that committals are supposed to be as short as possible. They are not supposed to be mini trials. Ideally the system wants all the prosecution's paper evidence in form of witness statements and police reports etc to be given to the magistrate and the magistrate then decides if there is sufficient evidence to commit the accused to trial. Most committals do happen this way. The defence does not produce any evidence at committals.

To try to achieve a short committal, there are limitations on cross examination of the prosecution's witnesses by the defence. Limitations are on whether a witness can be cross examined and also the scope of that cross examination. The defence has to show there are substantial reasons why, in the interests of justice, the witness who made the statement should attend court to give oral evidence or be made available for cross-examination.

It sounds like GBC's committal is definitely not going to be a short committal and may run for weeks or months particularly if heard in blocks due to court availability. Unless he has done a deal with his lawyers re legal fees, this is going to be very expensive for GBC.


The advantage of the defence cross examining witnesses is to try to seriously challenge the evidence so much so that the magistrate decides that there is no reasonable prospect that a reasonable jury properly instructed would convict the accused and then dismisses the charges at the committal.

If the accused is committed for trial, weaknesses in the evidence against the accused that has been exposed in the committal, gives the defence an advantage to gather more evidence before the trial. This works for the prosecution as well as the police can obtain further evidence to strengthen their case.

 

[Makara]

www.couriermail.com.au
Hundreds of witnesses may be called in murder trial of Gerard Baden-Clay, accused of killing Allison Baden-Clay
by: Brooke Baskin From: The Courier-Mail November 05, 2012 10:18AM
Defence lawyer Darren Mahony told the court this morning he was seeking another week to finalise witnesses listed for cross-examination at a Committal Hearing, set down for November 26. "We need to resolve the scope in relation to around 20 of those 35," Mr Mahony said.
Crown prosecutor Danny Boyle was in agreement.
Mr Callaghan ordered the cross-examination of witnesses application has been listed for another Mention on November 12 at 9am.

Summary Court dates:
November 12, 2012 - Another Mention
November 20, 2012 - Cross Examination of Witnesses
November 26, 2012 - Committal Hearing.

Thanks for this Fuskier. I've read the article at the link above but can't find where it says that the committal hearing is scheduled for 26 November. I'd heard that this was the date a while back and it was pointed out to me that it was in fact the date for the Daniel Morcombe case.

 

[Makara]

Thank you Alioop. So very well explained. What would we do without you? :cheers:

It seems that the prosecution has so far agreed to 35 out of about 45 requests from the defence for cross examination of witnesses at the committal. This is not the trial. The trial only occurs if GBC is committed to stand trial at the committal hearing. So there are another 10 requests still to sort out. Also out of the 35 already agreed, the prosecution and defence still need to agree on the scope of the cross examination of about 20 of those witnesses.

So another mention on the 12th November for the magistrate to get an update on this progress. The date on the 20th Nov still stands to deal with any requests for cross examination that have not been agreed to, to be decided by the magistrate.

The reason for all this is that committals are supposed to be as short as possible. They are not supposed to be mini trials. Ideally the system wants all the prosecution's paper evidence in form of witness statements and police reports etc to be given to the magistrate and the magistrate then decides if there is sufficient evidence to commit the accused to trial. Most committals do happen this way. The defence does not produce any evidence at committals.

To try to achieve a short committal, there are limitations on cross examination of the prosecution's witnesses by the defence. Limitations are on whether a witness can be cross examined and also the scope of that cross examination. The defence has to show there are substantial reasons why, in the interests of justice, the witness who made the statement should attend court to give oral evidence or be made available for cross-examination.

It sounds like GBC's committal is definitely not going to be a short committal and may run for weeks or months particularly if heard in blocks due to court availability. Unless he has done a deal with his lawyers re legal fees, this is going to be very expensive for GBC.


The advantage of the defence cross examining witnesses is to try to seriously challenge the evidence so much so that the magistrate decides that there is no reasonable prospect that a reasonable jury properly instructed would convict the accused and then dismisses the charges at the committal.

If the accused is committed for trial, weaknesses in the evidence against the accused that has been exposed in the committal, gives the defence an advantage to gather more evidence before the trial. This works for the prosecution as well as the police can obtain further evidence to strengthen their case.

 

[Amee]

Thanks for this Fuskier. I've read the article at the link above but can't find where it says that the committal hearing is scheduled for 26 November. I'd heard that this was the date a while back and it was pointed out to me that it was in fact the date for the Daniel Morcombe case.

They have removed the date 26th November. Thought I was going mad as Id read the article when Fuskier posted it. FB JFA has the original msm posted on there.

Defence lawyer Darren Mahony told the court this morning he was seeking another week to finalise witnesses listed for cross-examination at a committal hearing, set down for November 26.

https://www.facebook.com/Justice4Allison?ref=ts&fref=ts

 

[DrWatson]

(Great post respectfully snipped for brevity)

If the accused is committed for trial, weaknesses in the evidence against the accused that has been exposed in the committal, gives the defence an advantage to gather more evidence before the trial. This works for the prosecution as well as the police can obtain further evidence to strengthen their case.

What a great post, Alioop - thank you. Excellent summary, and explained in layman's terms without talking down to us - superbly done! NOW I know how this whole thing is going to work

:yourock:

 

[Fuskier]

Thanks for this Fuskier. I've read the article at the link above but can't find where it says that the committal hearing is scheduled for 26 November. I'd heard that this was the date a while back and it was pointed out to me that it was in fact the date for the Daniel Morcombe case.

Thanks for bringing this to our attention. That date was cited in The Courier Mail article earlier. It seems to have been removed.

 

[alioop]

Thanks Makara and Doc for all your kind words and icons. :blushing::blushing::blushing::blushing:

 

[Liadan]

Will the transcripts from these cross examinations be available to the public at any stage before the trial?

And do committals involved transcripts as well? I know there wouldn't be much in them but just thinking in terms of MSM they may have them so that they can launch investigative reporting. Investigative reporting seems to be a dying (even dead) art at the moment.

 

[alioop]

Transcripts will be made of the committal hearing which will include the cross examination of the prosecution's witness by the defence. So they would have some interesting info in them.

As to their availability, usually you have to have a connection to the matter to get one unless you explain in your application why you want a copy. As I have only ever ordered a transcript for cases I have been involved in as a lawyer, I am not sure what explanations ( such as an interested member of the public or MSM) are acceptable but will ring and ask the court tomorrow and find out. They are usually expensive to obtain especially if it is a lengthy matter as a transcript is produced every day. The judge/magistrate and the parties to the matter get them free on a daily basis throughout the hearing of the matter.

I don't know if MSM would want to pay the cost of purchasing the transcripts of say GBC's committal. Does any one in media know about this? Perhaps a reporter justs sits in on the case most days.

 

[Fuskier]

Thanks for this Fuskier. I've read the article at the link above but can't find where it says that the committal hearing is scheduled for 26 November. I'd heard that this was the date a while back and it was pointed out to me that it was in fact the date for the Daniel Morcombe case.

www.couriermail.com.au
Makara, The Courier Mail has altered its written information. The article by Brooke Baskin appears to have been altered one hour later. For example at 11.18am its states ... "Defence lawyer Darren Mahony told the court this morning he was seeking another week to finalise witnesses listed for cross-examination at a Committal Hearing, at a date to be set"... This is different to the date November 26 cited in the article printed at 10.18am.
Maybe they have realised that it was printed in error?

 

[possumheart]

www.couriermail.com.au
Makara, The Courier Mail has altered its written information. The article by Brooke Baskin appears to have been altered one hour later. For example at 11.18am its states ... "Defence lawyer Darren Mahony told the court this morning he was seeking another week to finalise witnesses listed for cross-examination at a Committal Hearing, at a date to be set"... This is different to the date November 26 cited in the article printed at 10.18am.
Maybe they have realised that it was printed in error?

Could be safer to keep news vague to avoid another bomb scare. Who knows. Moo

 

[alioop]

A date for the committal hearing will only be set when the magistrate is satisfied both the prosecution and defence are ready so all these committal mentions that have been happening are to get them to the point where they are all ready. It's like a school master summoning a naughty student regularly to his office to check up on his progress in class!

 

[alioop]

I emailed the state reporting bureau this morning. They look after the transcripts at least for now as our state government has announced they are sacking them all and outsourcing the service.

They advised me that a member of the public can request transcripts unless the judge has ordered they be restricted. I expect this would be in some sex crimes and matters involving offences to children. This shouldn't apply in GBC's matter.

 

[Makara]

www.couriermail.com.au
Makara, The Courier Mail has altered its written information. The article by Brooke Baskin appears to have been altered one hour later. For example at 11.18am its states ... "Defence lawyer Darren Mahony told the court this morning he was seeking another week to finalise witnesses listed for cross-examination at a Committal Hearing, at a date to be set"... This is different to the date November 26 cited in the article printed at 10.18am.
Maybe they have realised that it was printed in error?

Thanks Fuskier. The exact same thing happened a couple of months ago! As Alioop said, there will not be a committal hearing date set until the magistrate is satisfied that both the prosecution and defence are ready to roll. It would be great though if the committal hearing was in fact on 26 November wouldn't it?

 

[alioop]

Whilst nothing to do with GBC's case, this link to a MSM report back in September is about the process of a defence's application to cross examine witnesses at a committal hearing.

I think it helps to understand the process and the types of witnesses that the defence wishes to cross examine in a murder case. I think there are a lot of similarities to the current processes in GBC's case.

http://www.heraldsun.com.au/news/br...n-morcombe-trial/story-e6frf7kf-1226480997397

 

[marlywings]

Thanks alioop... the committal hearing in the Daniel Morcombe case gets underway in a little under three weeks. If anyone would like to follow it on WS this thread will have the reports...

http://www.websleuths.com/forums/showthread.php?t=7354&page=8

 

[LollyPop]

It seems that the prosecution has so far agreed to 35 out of about 45 requests from the defence for cross examination of witnesses at the committal. This is not the trial. The trial only occurs if GBC is committed to stand trial at the committal hearing. So there are another 10 requests still to sort out. Also out of the 35 already agreed, the prosecution and defence still need to agree on the scope of the cross examination of about 20 of those witnesses.

So another mention on the 12th November for the magistrate to get an update on this progress. The date on the 20th Nov still stands to deal with any requests for cross examination that have not been agreed to, to be decided by the magistrate. No date has been set for the committal hearing.

The reason for all this is that committals are supposed to be as short as possible. They are not supposed to be mini trials. Ideally the system wants all the prosecution's paper evidence in form of witness statements and police reports etc to be given to the magistrate and the magistrate then decides if there is sufficient evidence to commit the accused to trial. Most committals do happen this way. The defence does not produce any evidence at committals.

To try to achieve a short committal, there are limitations on cross examination of the prosecution's witnesses by the defence. Limitations are on whether a witness can be cross examined and also the scope of that cross examination. The defence has to show there are substantial reasons why, in the interests of justice, the witness who made the statement should attend court to give oral evidence or be made available for cross-examination.

It sounds like GBC's committal is definitely not going to be a short committal and may run for weeks or months particularly if heard in blocks due to court availability. Unless he has done a deal with his lawyers re legal fees, this is going to be very expensive for GBC.


The advantage of the defence cross examining witnesses is to try to seriously challenge the evidence so much so that the magistrate decides that there is no reasonable prospect that a reasonable jury properly instructed would convict the accused and then dismisses the charges at the committal.

If the accused is committed for trial, weaknesses in the evidence against the accused that has been exposed in the committal, gives the defence an advantage to gather more evidence before the trial. This works for the prosecution as well as the police can obtain further evidence to strengthen their case.

Ali, you rock! Thanks so much!,

 

[AAAA]

Another rainy weekend, thankfully no choppers overhead. RIP, Allison, thinking of you. X

 

[Fuskier]

Case Update: Monday 12 November is the date set for the next Mention which may aim to:
i) Check progress on requests by the Defence to Cross Examine a further 10 witnesses at The Committal Hearing; and
ii) Check progress on the Prosecution and Defence agreement on the scope of the Cross Examination of 20 witnesses.

 

[BreakingNews]

Anyone going to court who can report back to WS?