Two thousand people packed Brisbane’s King George Square for a protest meeting last week. 122,000 signatures were collected for a petition, which when printed out, took 3200 sheets of paper. What energised this confected, orchestrated activity? Why, nothing more than a carefully-argued decision of three of the most senior judges in Queensland that a conviction for murder should be downgraded to one of manslaughter.
The mob, which would have read the headline, but not the judgement, just knew that was wrong. They knew that public opinion counted for more than reasoned argument, precedent or judicial experience. They knew – because they had seen it on public display so often recently – that populist emotion, sentimentality, and yes, love, were heavier than the rule of law.
So they designed a catch Twitter slogans: #doingit4allison #doingit4all. Just like the vapid #Illridewithyou or ‘je suis charlie’ – all care but no responsibility. The Courier-Mail conducted a scandalously irresponsible and inflammatory campaign against the decision, highlighted in a front page “The Law is an Ass.” Former Queensland cop Peter Dutton cemented his reputation for intellectual interventions when he described the headline as “dead right.”
In July, 2014, real estate agent Gerard Baden-Clay had been found guilty by a jury of murdering his wife, Allison in April the previous year. He had reported her missing, denied involvement when her body was found on a creek bank some ten days later, and explained suspicious scratches on his face as shaving cuts. The police forensic work was thorough. Leaves and creeper on the body were from plants at the Baden-Clay home, blood in the family car was Allison’s, but cause of death could not be established, although there were no broken bones or obvious signs of trauma.
Baden-Clay was sentenced to life imprisonment with a non-parole period of fifteen years. A month later, he appealed on four grounds:
- The verdict of murder was unreasonable
- There had been a miscarriage of justice because the jury had not been directed on evidence relating to the presence of Allison’s blood in the car.
- The trial judge erred in law in not directing the jury over evidence relating to the placement of Allison’s body at Kholo Creek.
- The trial judge also erred in leaving to the jury that Baden-Clay attempted to disguise marks on his face by making razor cuts.
The appeal was heard by Queensland’s Chief Justice, Catherine Holmes, sitting with Justices Hugh Fraser and Robert Gotterson of the Court of Appeal. Their conclusion, in upholding the appeal, and ordering the conviction reduced to one of manslaughter, was that despite the fact that Baden-Clay had lied about the scratches and tried to hide the body, it was a reasonable hypothesis that he was innocent of murder.
That was simply not acceptable to the powerful task force of community advocates which now interferes at all levels of politics, law, social policy and public reaction to events. People like Brisbane-based Hetty Johnston, the self-appointed crusader for child protection through her organisation Bravehearts. People like Bruce and Denise Morcombe, whose son, Daniel, was abducted and murdered in 2003. Bruce Morcombe was a keynote speaker at the King George Square rally. His remarks there indicated his confused thinking:
We expect the judicial system to move with the times, they have to, because we all need to maintain the genuine belief that our legal system works…..a possible counter appeal must go ahead. We call on the Queensland Attorney General to correct this imbalance and provide some certainty for the future, so that a punishment meets community expectations. This is not right.
Only a few months previously, the Morcombe family had had the benefit of a decision by the same Court of Appeal he was criticising, when it dismissed the appeal by his son’s murderer against a life sentence. What’s law for the goose is not for the gander.
Hetty Johnston had got herself entangled in the Morcombe appeal. The then-Chief Justice Tim Carmody, withdrew from the case, although denying a conflict of interest, because he had had a meeting with Ms. Johnston, who subsequently admitted to regular meetings with the principals of the Family Law Court, the Children’s Court and with the Chief Magistrate. She complained bitterly about objections to her meeting with the Chief Justice while hearing the appeal (emphasis added):
They’re just using their power and their authority to bully and intimidate and shut the community advocates out of the justice system.
It may come as a surprise that such lobby groups are part of the justice system.
In the Baden-Clay case, how did the Appeal Court came to its proper conclusion? Simply, for the cogent reason that there was no evidence of intent. The judgment touched on some important points of law, and its reasons could have been instructive for anyone who troubled themselves to read it.
Significantly, the Appeal Court found that the jury has been properly directed by the trial judge; it rejected all three such grounds of appeal.
Neither prospective finding – that the blood was left in the vehicle on the night in question or that the appellant placed the body of his wife at Kholo Creek – was an indispensable fact to reaching a conclusion that he had killed her. Both were capable of assisting to prove guilt, but neither was essential.
Where the jury had stumbled was on the question of intent:
But the lies, or the lies taken in combination with the disposal of the body, would not enable the jury to draw an inference of intent to kill or do grievous bodily harm if there were, after consideration of all the evidence equally open a possibility that all of that conduct was engaged in through a consciousness of a lesser offence; in this case, manslaughter.
For example, the Court said, if there had been a physical confrontation between Baden-Clay and his wife in which a blow caused her to hit her head on a hard surface without intending to cause serious harm, he could have acted in a state of panic knowing that he had unlawfully killed her. Even if he took her body to Kholo Creek in the hope that it would be washed away, while lying about the marks on his face which suggest conflict,
The jury could not properly have been satisfied beyond reasonable doubt that the element of intent or kill or do grievous bodily harm had been proved.
Increasingly, public issues such as this legal case have become a test of strength, The People v The Law. Nicole Morris of the Australian Missing Persons Register and an organizer of the Brisbane petition:
The idea was to really give Australia a voice and to allow people who had the opinion that the decision was wrong to say, yes, I think the decision that was handed down was wrong.
Where does this end? The Brisbane rally was a peaceful orderly affair in physical terms, but intellectually it was tantamount to a lynch mob on the prowl.
Posited on nothing more substantial than a community abhorrence of domestic violence and a conviction that Baden-Clay was a nasty piece of work capable of murder, it implicitly rejected the critical tests of the judicial system essential to separate civilization from superstition. Another time, another day, the mob could turn out to demand the acquittal of a criminal it had decided should be declared innocent.
One of the women at the Brisbane rally, Kelli Schuh, took along her three children to protest against the Appeal Court decision. “”My youngest is only eight – and they understand that it’s wrong,” the angry mum was quoted by the ABC as saying.
In 1692, nine-year-old Betty Parris and Abigail Williams, 11, began throwing fits. They accused a poor elderly woman, Sarah Osborn, of bewitching them. Osborn was hanged, beginning the Salem hysteria. How far have we really come?