The Queen v Baden-Clay [2016] HCA 35

The Queen v Baden-Clay [2016] HCA 35 - HCA 2016 case summary — Zoe

[9]

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

[13]

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.
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.
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."
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 wife about their relationship and that it was unfair to both her and his wife for them to be in the same room together. His response was that he was thinking of selling the business and that he would do that after he had left his wife. Ms McHugh said that she believed that the respondent was "taking more of a stand" and that "something was going to be different this time".
As noted above, on the morning of 20 April, the respondent admitted to police that he had had an affair, but told the police that it had ended. The respondent told police that he and his wife had seen a counsellor the previous Monday, who had suggested that 15 minutes be set aside each night for his wife to "vent and grill" the respondent about his affair (which she thought had ended). The respondent said that he and his wife had had a 15 minute session the previous night and that there were "some difficult things that we talked about". The respondent also said that their financial situation was "pretty tight".
Ms McHugh gave evidence that she attended the conference on 20 April. She called the respondent at lunchtime to ask him where his wife was. He told her that his wife was missing. On that day, he told her that they "need to not ... communicate and lay low."
On 21 April, the respondent called Ms McHugh and told her that police would want to speak to her and that she should tell the truth. While she was with police, he called her again and told her just to answer "yes" or "no". He asked her whether she had told the police that they were together again, and she replied "yes". The call ended. Ms McHugh and the respondent met one further time, when the respondent told her that she "would have to fall in love with someone else" and that "things weren't going to be looking good for him."
In his evidence, the respondent admitted that he had told Ms McHugh that he loved her and that he had undertaken to leave his wife by 1 July. However, he said that he had never loved her and merely did that to "placate" her. He admitted that he told her that he did not love his wife, but insisted that he actually did.
For the sake of completeness, it may be noted that the respondent was experiencing financial difficulties at the time of his wife's death; but the prosecution disavowed any suggestion that the respondent was motivated to kill his wife in order to obtain the proceeds of a policy of insurance on her life. It is unnecessary to say any more about this aspect of the matter.

[15]

The defence case at trial included a suggestion that the respondent's wife may have taken her own life in a fall from the bridge over Kholo Creek or by drowning. The forensic evidence noted above provided a compelling answer to this suggestion. The jury were entitled to reject as fanciful the suggestion that the deceased had somehow made her way over the 13 kilometres from her home in order to do away with herself by throwing herself off the bridge into Kholo Creek. Other possible causes of death suggested on behalf of the respondent such as alcohol or drug toxicity could similarly be rejected by the jury in light of the expert evidence adduced at trial.
The respondent's evidence was that he had nothing to do with his wife's death. In particular, he denied that he fought with her on the evening of 19 April or the morning of 20 April. He denied that he left his children alone in the house to go to the Kholo Creek bridge. He denied that he took any steps to dispose of his wife's body.
There was some discussion at trial as to the basis on which a verdict of manslaughter should be left to the jury as an alternative to murder. In answer to the trial judge's question: "What is the reasonable hypothesis consistent with an absence of an intention to kill?", counsel for the respondent replied: "That, on the prosecution case, death was occasioned unintentionally." His Honour responded: "But there are no fractures of the head." Counsel agreed with that observation, and in response to the trial judge's further remark: "So there's no suggestion that she's fallen and hit her head on bricks or cement", counsel answered: "No." Later, prior to the trial judge's summing up, his Honour canvassed with counsel for the respondent the possibility of a direction that the defence contended in the alternative that the conduct in question did not tend to prove an intentional killing. Counsel for the respondent said the problem with that was "it's not our contention".
On this footing and without objection from the respondent, the hypothesis which the Court of Appeal held to be available to the respondent was not put before the jury. The alternative verdict of manslaughter was left to the jury because the Crown bore the onus of proving that the respondent acted with intent to kill or to cause grievous bodily harm.

[23]

The Crown submitted that the trial was conducted by both prosecution and defence as a case of murder or nothing. The Crown submitted that, although manslaughter was left to the jury because the prosecution bore the onus of proving intent to kill or cause grievous bodily harm, no factual hypotheses relating to a possible verdict of manslaughter by the respondent rather than murder by him were raised by the defence. In particular, there was no evidence to support the hypothesis of "a blow" or "a fall hitting her head against a hard surface" in the course of an altercation between the respondent and the deceased; indeed, the respondent's evidence excluded that possibility. It was said that the absence of an evidentiary foundation for the factual hypothesis posed by the Court of Appeal meant that it was incapable of constituting a reasonable hypothesis which might have caused the jury to entertain a doubt as to whether the killing had been accompanied by an intent to kill or cause grievous bodily harm.
The Crown also argued that the evidence of the relationship between the respondent, Ms McHugh and his wife, and the possible imminent meeting between Ms McHugh and his wife at the real estate conference, together with Ms McHugh's demands to decide whether to leave his wife, and his wife's recriminations in the course of her "venting and grilling" on the evening of 19 April, was evidence from which a jury might reasonably infer the formation of an intention to kill or to cause grievous bodily harm at the time on the night of 19 April 2012 when the respondent killed his wife.
The Crown argued further that the respondent's post-offence conduct, including his lies, was capable of giving rise to an inference of guilt of murder. On the evidence, the jury could reasonably conclude that, having killed his wife, the respondent immediately engaged in a deliberate and calculated series of actions to shroud his involvement in her death and to deny to police any knowledge of his motive to kill her, and that these post-offence actions were those of a person who had intentionally killed his wife**[10]** rather than a panicked reaction by a man who had unintentionally caused her death.

[36]

The evidence given in the present case by the respondent narrowed the range of hypotheses reasonably available upon the evidence as to the circumstances of the death of the respondent's wife. Not only did the respondent not give evidence which might have raised the hypothesis on which the Court of Appeal acted, the evidence he gave was capable of excluding that hypothesis.
The Court of Appeal's conclusion to the contrary was not based on evidence. It was mere speculation or conjecture rather than acknowledgment of a hypothesis available on the evidence. In this case, there was no evidence led at trial that suggested that the respondent killed his wife in a physical confrontation without intending to kill her. There were "no positive proved facts from which the inference" drawn by the Court of Appeal could be made**[28]**. There was no evidence at trial of any injury to the wife's body that might have killed her. Due to the decomposition of the body, the precise cause of her death remains unknown. There was a probable bruise on the internal lining of the left front of the chest wall, but it was unclear whether it occurred pre- or post-mortem. If it was a bruise, the evidence was that it was the result of a "mild force injury" because there were no underlying rib fractures. There was a chipped tooth but no signs of trauma to the teeth or the hard tissues of the jaw. Not only were there no fractures to the head, which might have suggested the wife had fallen and hit her head on a hard surface (as in the example given by the Court of Appeal), there were no other fractures on the body.
Counsel for the respondent sought to rely upon Knight v The Queen[29] to support the approach of the Court of Appeal. In that case, Mason CJ, Dawson and Toohey JJ held that the hypothesis that an accused charged with murder did not fire a shot which hit the complainant with intent to kill so as to sustain a charge of attempted murder was open on all the evidence in the case, notwithstanding that the jury were entitled to disbelieve the accused's evidence that he was not aware of cocking and discharging the rifle which fired the shot that wounded the complainant. But that was not a case where the only evidence which raised the hypothesis consistent with an absence of intention to kill came from the accused. In Knight, the prosecution had conceded that another shot fired shortly before the shot which wounded the complainant had not been fired with intent to kill the person wounded by it; the second shot was fired in a continuation of the same struggle in the course of which the first shot was fired. In addition, the absence of a trigger guard meant that the rifle could easily have been fired as a consequence of the struggle rather than as the result of a conscious application of pressure to the trigger**[30]**. In the present case, by contrast, the only evidence which actually related to the hypothesis on which the respondent sought to rely was evidence which was inconsistent with that hypothesis.
The Court of Appeal appears**[31]** to have reasoned that the respondent's evidence could be disbelieved by the jury, as it plainly was, so that there was no evidence at all in relation to the hypothesis. If it were truly the case that there was no evidence from the respondent as to the circumstances of his wife's death, the application of the principles explained in Weissensteiner would have required consideration; and they were not adverted to by the Court of Appeal. But the respondent chose to give evidence. To say that the respondent's evidence was disbelieved does not mean that his evidence could reasonably be disregarded altogether as having no bearing on the availability of hypotheses consistent with the respondent's innocence of murder. His evidence was important, even if it was disbelieved, because it was open to the jury to consider that the hypothesis identified by the Court of Appeal was not a reasonable inference from the evidence when the only witness who could have given evidence to support the hypothesis gave evidence which necessarily excluded it as a possibility.
The Court of Appeal should not have treated the case as one in which it was open to it to identify a hypothesis as to the circumstances of the death of the deceased on the basis that the respondent's evidence could be disregarded as if it had not been given at all.
There remains another difficulty with the Court of Appeal's approach. The Court of Appeal's hypothesis was never put to the jury by the respondent's counsel, either directly or indirectly. The hypothesis was contrary to, and excluded by, the case that the respondent put to the jury. That statement requires explanation.
Aware that the prosecution case was circumstantial, the trial judge invited the respondent's counsel to state the reasonable hypotheses consistent with the respondent's innocence that he wished to be put as part of the summing up. The respondent's counsel provided a document listing four hypotheses to account for the death - drowning; falling from a height to her death or to cause drowning; alcohol and/or sertraline toxicity; or the effects of serotonin syndrome, which led to her drowning or falling from a height to her death. None of these hypotheses raised manslaughter - none of them involved the respondent playing any part in the death of his wife.
In his closing address, the respondent's counsel told the jury there were two possibilities - the respondent murdered his wife or, as the respondent had told the jury in evidence, he expected his wife to walk back in the door or be found, having slipped over or hurt herself. The respondent's counsel agreed with the trial judge that that approach was a "considered tactical position". Further, in an exchange with the trial judge, the respondent's counsel accepted there was "no suggestion that [the wife had] fallen and hit her head on bricks or cement" because there were "no fractures of the head".
It may readily be accepted that "it is not incumbent on the defence either to establish that some inference other than that of guilt should reasonably be drawn from the evidence or to prove particular facts that would tend to support such an inference."[32] That proposition merely reflects that it remains for the prosecution to prove the accused's guilt of an offence beyond reasonable doubt**[33]. And it does not detract from, and is consistent with, the further proposition that a "trial judge must be astute to secure for the accused a fair trial according to law."[34]** A trial judge must adequately direct the jury "both as to the law and the possible use of the relevant facts upon any matter upon which the jury could in the circumstances of the case upon the material before them find or base a verdict in whole or in part"[35]; the trial judge is under a "duty to put to the jury with adequate assistance any matters on which the jury, upon the evidence, could find for the accused"[36] (emphasis added). No complaint is made in this Court that the directions given to the jury were inadequate. The directions "put fairly before the jury the case which the accused" made**[37]**. The trial judge left manslaughter to the jury and put to them the four hypotheses identified by defence counsel.
But it is quite another matter, as occurred on appeal to the Court of Appeal and again to this Court, to contend for a hypothesis which was not put to the jury for tactical reasons, which is directly contrary to evidence of the respondent at trial, which is directly contrary to the way in which the respondent's counsel conducted the defence and which, in response to direct questions from the trial judge, was expressly rejected by the respondent's counsel. The issues and available lines of argument to be pursued were narrowed by the way the case was conducted at trial. That is commonplace. But it cannot be ignored. The hypothesis identified by the Court of Appeal was not open. Once that hypothesis is rejected, no other hypothesis consistent with guilt of manslaughter, but innocence of murder, has ever been identified at trial, before the Court of Appeal or in this Court.
This conclusion is sufficient to require that the appeal be allowed and the respondent's conviction for murder restored. It is necessary, however, to explain why the jury were entitled reasonably to regard the whole of the evidence as satisfying them beyond reasonable doubt that the respondent acted with intent to kill or cause grievous bodily harm when he killed his wife and so reject the alternative verdict of manslaughter in favour of murder.

[43]

In R v White, Major J went on to say that there may be cases where post-offence conduct, such as the accused's flight or concealment, is so out of proportion to the level of culpability involved in a lesser offence that it might be found by the jury to be more consistent with the more serious offence charged**[50]. There may be cases where an accused goes to such lengths to conceal the death or to distance himself or herself from it as to provide a basis on which the jury might conclude that the accused had committed an extremely serious crime and so warrant a conclusion beyond reasonable doubt as to the responsibility of the accused for the death and the concurrent existence in the accused of the intent necessary for murder[51]. There is no hard and fast rule that evidence of post-offence concealment and lies is always intractably neutral as between murder and manslaughter. As Major J said[52]**: "The result will always turn on the nature of the evidence in question and its relevance to the real issue in dispute."
In Lane v The Queen[53], the Court of Criminal Appeal of the Supreme Court of New South Wales rejected the contention that a count of manslaughter of the accused's child should have been left to the jury as an alternative to murder. The Court held that the jury were entitled to take the post-offence conduct of the accused as evidencing consciousness of guilt of murder. In particular, the Court held that the lies told by the accused "alone were sufficient to provide the evidentiary foundation for an inference that ... she acted with the intention of killing."[54] Their Honours went on to say that the false accounts given by the accused "provide no factual foundation for an inference that the manner in which she killed [her child]" would establish manslaughter by criminal negligence**[55]**.
It was open to the jury, in this case, to regard the lengths to which the respondent went to conceal his wife's body and to conceal his part in her demise as beyond what was likely, as a matter of human experience, to have been engendered by a consciousness of having unintentionally killed his wife.
However, even if the evidence of post-offence conduct were neutral on the issue of intent, that alone would provide no basis to conclude that the reasonable hypothesis relied upon by the Court of Appeal was open on the evidence led at trial. To so conclude is to adopt an impermissible "piecemeal" approach to that evidence. All of the circumstances established by the evidence were to be considered and weighed, not just some of them.
Finally, the jury could take into account the absence of any signs that a weapon was used to cause the death of the deceased, and make their own judgment about the respondent's intention at the time, bearing in mind the difficulty involved in killing a human being without the use of a weapon unless the act of killing is driven by a real determination to cause death or grievous bodily harm.
In all the circumstances of this case, other than speculating about how things might have happened, it was open to the jury rationally to conclude that the respondent killed his wife and did so with intent, at least, to cause her grievous bodily harm. Upon the whole of the evidence led at trial, it was open to the jury to be satisfied beyond reasonable doubt that the respondent was guilty of murder.

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Judgment (99 paragraphs)

The Queen v Baden-Clay [2016] HCA 35 (31 August 2016)

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Cases Cited (32)