Written by John Sutton
December 11, 2015
The Queensland press is in a frenzy following the Court of Appeal’s decision to set aside Gerard Baden-Clay’s conviction for the murder of his wife Alison, and to substitute it for a conviction of the lesser offence of manslaughter.
As is unfortunately typical of news outlets in this state where decisions of the Courts are concerned, an understanding of the law and a more than superficial recognition of the reasons for the decision is sorely lacking in the coverage. The lack of accurate reporting has led to an understandable sense of outrage and injustice that a man who, on any measure of the case against him, brought an end to his own wife’s life – a man who killed the mother of his own children – should escape his fate as a murderer.
The emotive and at times disingenuous coverage of the matter consistently overlooks the primary reason for the Court’s decision, namely that there was an insufficiency of evidence in relation to Mr Baden-Clay’s intention to kill, or do grievous bodily harm to, Alison on the evening in question.
The offence of murder, as a matter of law, requires that a person does something which results in the death of another while intending that their conduct should cause that death (or intending that their conduct should cause grievous bodily harm). If a person unlawfully kills another person without the intention to do so, they commit the offence of manslaughter.
The Court’s decision does not conclude that Mr Baden-Clay accidentally killed Alison and it does not absolve him of criminal responsibility for her death. The decision, quite simply, makes no findings as to the conduct which caused Alison’s death but instead pronounces that the Crown did not adduce sufficient evidence to establish, beyond a reasonable doubt, that Alison’s death, however it was caused, was the intended result of something Mr Baden-Clay did.
There is a subtle, but extremely important, difference between saying that there is insufficient evidence of intent to kill and saying that there was no intent to kill; the Court has not said that Mr Baden-Clay is not guilty of murder because he did not intend to kill Alison, it has said that he is not guilty of murder because the evidence does not establish that he had that intent.
It is satisfying, at an emotional level, to conclude that Mr Baden-Clay’s conduct after he killed his wife clearly shows him to be a callous murderer and that he must have intended to kill her – he dumped Alison’s body in a creek, lied to just about everybody and even forced his own children to endure the criminal trial process as witnesses (to the death of their own mother no less). While this might be superficially convincing, absent other evidence to prove that Mr Baden-Clay engaged in the callous conduct because he had intended to kill Alison (and was trying to hide that fact), it is very dangerous reasoning.
While perhaps less satisfying, it is preferable in a system of law like ours, to require unequivocal proof of a matter before we allow it to form the basis of a criminal conviction. In this case, even if it is not immediately palatable, it must be conceded that Mr Baden-Clay‘s callous post-offence conduct was equally consistent with him being in a panic after having inadvertently caused Alison’s death. This is not to say that there is any proof positive that he was in such a panic, or that he didn’t intentionally cause Alison’s death, but in our system an accused person is not required to prove an absence of intent (for many good reasons which are beyond the scope of this article) – the Crown are required to prove its existence, and they did not do so on this occasion.
I encourage everyone to read, and consider, the Court’s decision before taking the often erroneous reports of it to heart – it is published here– for the time-poor, the Court’s consideration of the issues I have canvassed in this article begins on page 11, at paragraph 38. Unsurprisingly, the presiding Justices explain the relevent issues, and their reasoning, far more eloquently and in much greater depth, than I have here.