The Queen(Appellant) v Gerard Robert Baden-Clay

• Jurisdiction: Australia Federal only
• Court: High Court (Australia)
• Judge: French CJ,Kiefel,Bell,Keane,Gordon JJ
• Judgment Date: 31 August 2016
• Neutral Citation: [2016] HCA 35
• Docket Number: B33/2016
• Date: 31 August 2016

[2016] HCA 35

HIGH COURT OF AUSTRALIA

French CJ, Kiefel, Bell, Keane AND Gordon JJ

B33/2016

The Queen

Appellant

and

Gerard Robert Baden-Clay

Respondent

Representation

W Sofronoff QC with D C Boyle and S J Hedge for the appellant (instructed by Director of Public Prosecutions (Qld))

M J Byrne QC with M J Copley QC for the respondent (instructed by Peter Shields Lawyers)

Criminal Code (Q), s 668E(1).

Criminal law — Criminal liability — Where respondent's wife disappeared and body later found — Where respondent involved in sexual affair with another woman — Where some injuries to respondent's cheek likely caused by fingernails — Where respondent gave evidence at trial denying involvement in killing wife and disposing of body — Where jury convicted respondent of murder — Where Court of Appeal held hypothesis of unintentional killing not excluded by prosecution and substituted verdict of manslaughter — Where common ground on appeal that respondent killed his wife — Whether hypothesis consistent with innocence of murder open — Whether jury's verdict unreasonable — Whether jury entitled to be satisfied beyond reasonable doubt that respondent acted with intent to kill or cause grievous bodily harm when he killed his wife.

Words and phrases — ‘circumstantial evidence’, ‘hypothesis consistent with innocence’, ‘intention’, ‘intractably neutral’, ‘lies’, ‘motive’, ‘post-offence conduct’, ‘role of the jury’, ‘unreasonable verdict’, ‘whole of the evidence’.

ORDER

• 1. Appeal allowed.

• 2. Set aside orders 1 and 2 of the Court of Appeal of the Supreme Court of Queensland made on 8 December 2015, and in their place order that the appeal to that Court be dismissed.

1 French CJ, Kiefel, Bell, Keane AND Gordon JJ. On 15 July 2014, following a trial in the Supreme Court of Queensland before Byrne SJA and a jury, the respondent was found guilty of the murder of his wife, Allison Baden-Clay.

2 The respondent appealed against his conviction to the Court of Appeal of the Supreme Court of Queensland on the ground that the jury's verdict was unreasonable. The Court of Appeal (Holmes CJ, Fraser and Gotterson JJA) allowed the appeal on that ground, set aside the respondent's conviction on the charge of murder, and substituted a verdict of manslaughter.

3 The Court of Appeal held that, although it was open to the jury to find that the respondent had killed his wife, the evidence did not allow the jury to be satisfied beyond reasonable doubt that the respondent intended either to kill her, or to cause her grievous bodily harm. In particular, the Court of Appeal accepted the respondent's submission, made for the first time on appeal, that the prosecution had not excluded the hypothesis that the respondent had struck his wife in the course of a struggle and that she had died as the result of a fall, or in some other manner, that did not involve an intent on his part either to kill her or to cause her grievous bodily harm.

4 On the appeal to this Court, the Crown contended that it was open to the jury, having regard to all the evidence, to be satisfied beyond reasonable doubt that the respondent killed his wife with intent to kill her or to cause her grievous bodily harm. That contention should be accepted.

5 The respondent gave evidence at his trial. He denied that he had fought with his wife, killed her and disposed of her body. The respondent's evidence did not support the hypothesis held by the Court of Appeal to be consistent with the respondent's innocence on the charge of murder. The hypothesis on which the Court of Appeal acted was not available on the evidence; and so the Court of Appeal was wrong to conclude that it was unreasonable for the jury to find on the whole of the evidence that the deceased's death at the respondent's hands was intentional 1.

6 The appeal should be allowed and the verdict of guilty of murder restored.

The evidence at trial

7 The respondent gave evidence that he, his wife and their three daughters were at home on the night of 19 April 2012. He said that he went to bed at about 10 pm, leaving his wife, who was watching television, in the living room. He awoke just after 6 am on 20 April 2012. His wife was not at home, but she often went for an early morning walk. That morning, he was responsible for getting the children ready for school and taking them there. He was ‘under the pump a little bit’ and was ‘rushing that morning’. He said he cut himself shaving.

8 The respondent phoned and sent text messages to his wife, but there was no response. He also called his parents to tell them that he did not know where his wife was. He went driving around the suburb looking for her. At 7.15 am he called 000 to report her missing.

9 The police arrived at the respondent's home at 8 am. The respondent was asked whether he and his wife were estranged; he denied it. He was asked whether there was an ‘indication that the marriage is going to break up’ and he answered ‘Um I hope not.’ He went on to say that he ‘had an affair … that ended last year.’

10 The deceased's body was found on 30 April 2012 under a bridge on a bank of Kholo Creek, some 13 kilometres from her home.

The forensic evidence

11 Dr Nathan Milne, the forensic pathologist who conducted the post-mortem examination of the deceased's body, was unable to determine the cause of death because of the significant level of decomposition of the body, but in his opinion, the deceased did not die of natural causes. There were no definite injuries found which might have suggested the use of a weapon. It may be noted that there was no evidence of a skull fracture.

12 Dr Milne estimated that the time of death was consistent with the last time she was seen alive 11 days earlier.

13 There were no signs suggestive of drowning. Dr Milne said that if the deceased had fallen from the bridge onto the ground, significant injuries would have been expected, but acknowledged that if she fell into the water, there may not be detectable injuries.

14 Although the deceased did at various times suffer from depression, for which she was prescribed medication, Professor Olaf Drummer, a forensic pharmacologist and toxicologist, concluded that consumption of drugs did not contribute to her death. In addition, none of the medical practitioners or psychologists who had treated her held any concerns that she was suicidal.

15 Leaves found on the body were from trees of six species that grew at the respondent and his wife's home; four of these did not grow at the site at which the body was found.

16 The respondent and his wife's eldest child thought that her mother was wearing a ‘sloppy jacket’ and pyjama pants at the time the deceased was watching television. The deceased's body was found clothed in three-quarter length pants, socks, sneakers and a singlet top which had a bra built into it.

17 Blood matching the deceased's DNA profile was found in the rear section of her car, which had only been acquired in February 2012.

18 Tests on the respondent's mobile phone showed that it had been placed on a charger, adjacent to the side of the bed on which he slept, at 1.48 am, at a time when he claimed he was asleep.

The respondent's injuries

19 Three experts gave evidence that there were two categories of injuries to the respondent's right cheek. Their evidence was that it was most likely that fingernails caused one set of scratches and it was implausible that those scratches had been caused by a shaving razor. The second set of marks appeared to be different. They were fresher, and were consistent with having been caused by a razor ‘particularly if moved from side to side as it was drawn from front to back or back to front across the face.’

20 There were also injuries to the respondent's torso which were examined by doctors in connection with the proceedings, but these injuries were not relied upon by the prosecution.

The respondent's relationship with Ms McHugh

21 The respondent had been involved in a sexual affair with another woman, Ms Toni McHugh, since August 2008. The affair with Ms McHugh began when she commenced working for the respondent's real estate agency and continued until a friend informed the respondent's wife in September 2011. The respondent then ceased the affair and Ms McHugh left his employ. The affair recommenced at the respondent's instigation in December 2011.

22 Ms McHugh gave evidence that, during the course of the affair, the respondent told her that he had no relationship with his wife, that he did not love his wife, that he loved Ms McHugh, and that one day he wanted to come to her ‘unconditionally’. On the last occasion Ms McHugh and the respondent met before the deceased's disappearance, she said that she needed to know what was going to happen with respect to their relationship. The respondent told her that he would be out of his marriage by 1 July. He confirmed this promise in writing less than three weeks before the deceased's disappearance.

23 Ms McHugh gave evidence that she and the respondent had discussed their living arrangements between December 2011 and April 2012, and that although the respondent was willing to ‘entertain’ such discussions, ‘[h]e never really got practical about anything.’ Ms McHugh, referring to the 1 July deadline the respondent had set, said: ‘I thought he's just pulling a number out of thin air. In actual fact, I just didn't believe it. I didn't believe it at all.’

24 On 20 April 2012, Ms McHugh was to attend a real estate conference. In the late afternoon of 19 April 2012, she phoned the respondent to talk about the conference. The respondent told her that two of his staff members were going to attend. Ms McHugh inferred that one of the attendees would be the respondent's wife. Ms McHugh became upset, and told the respondent that he needed to tell his...