Between Main and Dessert

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“So what did you think of the Baden-Clay decision?”

It was the question I’d been dreading all night. As soon as it hit the dinner table seven pairs of accusing eyes turned my way, waiting for the slightest slip-up.


Photo: Elina Sazonova

Source: Pexels

A smart guy once gave me some handy advice – “worry about the deal you’re in, not the deal you’re not in.” It makes sense, not just for dinner conversations but for everything from real estate to the fish that got away to the green grass on the other side of the fence. Chances are your own deal’s messy enough without worrying about someone else’s problem.

For lawyers, the same goes for court cases. It’s tough enough running your own cases, without trying to second-guess the ones you know nothing about. But sometimes a case comes along that everybody wants to discuss, and when polite dinner banter turns to battle, you’d better be prepared.

“Well, the thing is …”

It was one of those cases.  When Brisbane real estate agent Gerard Baden-Clay was convicted in July 2014 of murdering his attractive young wife Allison two years earlier, there were cheers of celebration from the public gallery of Brisbane’s Supreme Court. The Crown alleged that one night, after the kids were safely tucked into bed, Baden-Clay “efficiently and effectively” killed his wife, probably by smothering her, put her in the back of the family car, and drove 13km to dump her body on the muddy banks of Kholo Creek. The next morning he rang 000 and reported her missing.

When he protested his innocence, police produced evidence of trysts with other women, spiralling debt woes exacerbated by his wife’s threats to take all his assets, and secret emails to a long-term lover promising he would soon be out of the marriage. Although he countered such promises were just to “placate” his lover, that only served to enhance a prosecution picture of a master of deception The jury’s verdict thoroughly completed the picture – it could only mean Gerard Baden-Clay had lied from start to finish.

So many were surprised, to say the least, when the Queensland Court of Appeal overturned the verdict, ruling on the evidence the jury was not entitled to find Baden-Clay guilty of murdering his wife.

“Is that really the law?” my outraged after-dinner antagonist rejoined.

Given this was a deal I wasn’t in, and second-guessing Court of Appeal judges takes a way bigger brain than mine, I tried to lob it back to him by pointing out the High Court would soon answer his question. But that didn’t cut it. So I took a shot.

“The truth is … definitely maybe.”

It’s complicated, and involves a clear and dispassionate understanding of the legal concept of murder. When one person kills another they commit homicide. That’s straightforward enough. But if the prosecution additionally proves, beyond any reasonable doubt, that at the time of committing the homicide, the accused actually intended his victim to die, he is guilty of murder. If that clear intent isn’t proven, it’s manslaughter. In either case the sentence for homicide is life imprisonment. But in sentencing for murder a judge can’t give anything but life, whereas for manslaughter there’s a discretion to impose less.

No cause of death was proven in the Baden-Clay case. So the Court of Appeal concluded that while smothering – the prosecution’s case theory – was reasonably possible, so were other things, such as a physical fight between husband and wife in which Allison Baden-Clay fell and struck her head, without her husband actually intending her to die. And if that was reasonably possible on the evidence, the prosecution had not proven murder beyond reasonable doubt.

“But did the appeal court get it right or not?”

“Well… Wow, look at the time. Is that the time already? We really should be getting home.”

Something tells me I won’t be invited back anytime soon.

Chris Nyst

Gold Coast Lawyer, Novelist and Film Maker

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