QED

Mob Rule in Brisbane

cm front smallTwo 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?

23 comments
  • [email protected]

    “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.”

    Excellent point.
    However on the central argument of intent it amazes me that the original verdict of murder was reached.
    Criticism must be levelled at the trial judge for not properly instructing the jury that it is the responsibility of the Crown to prove the case.
    The Crown clearly did not prove intent to murder.
    With the challenge system we do not end up with a jury of our peers but a bunch of well-meaning but incompetent people attempting to solve complex issues.
    Surely a panel of judges would be a better system , but who then judges the judges ?

  • 8457

    While I agree with your view the overturning of jury decisions in high profile cases begs the question of why bother with juries in the first place. Why with major crimes not just use three judges in the first place.

    Also, I may be wrong, but as I understand it if a jury acquits someone it is not appealable. So in one instance the decision is inviolate, 12 good men and all that, and in the other it can be overturned on obscure points of law.

  • [email protected]

    Great piece Geoffrey. Seeking out victimhood is a mark of the times. Reason comes out second best. Peter Smith

  • Jody

    This issue is another sorry example of the law not keeping pace with community expectations. Baden Clay killed his wife; she’s dead. It matters not a whit to anybody whether he “intended” to do it, the result was the same. Drawing a technicality from “intended” is scandalous. Who else murdered Allison? It is accepted Baden Clay did this and evidence would have shown a pattern of intimidation and probably domestic violence. And he went into court and said he didn’t do it, so he lied.

    Judges are capricious and the sooner we get a panel of judges or a panel of jurers making a decision about appropriate sentencing the sooner we’ll see some improvement. At the moment carving the law into semantic fragments based on “intention”, “remorse” and other ‘mitigating’ circumstances is beyond a joke.

    Many more people than those in Brisbane feel angry and our preposterous legal system.

    • [email protected]

      Jody, emotion has no place in the justice system.

      • Jody

        But JUSTICE does.

        • acarroll

          So you’re advocating that we do away with the distinction between manslaughter and murder?

          Hundreds (thousands?) of years of legal practice must just be wrong. We’re WAY more enlightened now.

          • Clive Bond

            This gives wife killers open slather.All they have to do is say,” I didn’t mean to do it” How do you prove they did when the killer knows full well he meant to but is not letting on. Who else knows?

    • Roy Edmunds

      I tend to agree with you Jody.
      The problem is that if the killing was done without any planning apparent…evidence of that which could be
      legally offered before the jury…then that is deemed to put paid to murder…but there can be much more
      evidence of behavior after the killing which could suggest that although there was no evidence of
      deliberate planning that the murderer had believed in a cause that had them fantasizing about the
      murder although no immediate plans had been made.

      This would need to be brought out in cross examination which is why the defendant has a right to silence.

      So, yes the system appears to be loaded in favor of the murderer and not the poor innocent.

      Perhaps circumstantial evidence could have been introduced by other members of the family or friends who
      had been present when things were said in an argument. Although hearsay would prevent some things being said.
      In past cases, murder has been proven without any direct evidence at all. Just through building up
      circumstantial evidence….but it requires a lot of painstaking work by investigators. One of the problems is
      that we don’t have enough police…they are overworked…the population grows but the police force does not keep up with the growth in population so that detectives are over worked. Not that they would fail in their duty it is just that it may take months to gather additional evidence and to have it checked to ensure that it can be legally admissible. Still, the whole matter is sad for those left to grieve.

  • en passant

    Geoffrey,
    You are right in law, but wrong in morality. Allison is dead, killed deliberately or unintentionally as he only intended to give a good beating, like any husband does. The intention used to be there to stop people being sentenced to death for what we now call unlawful killing.
    So, as ‘intention’ cannot be proven (and neither Allison nor her husband is telling) the correct decision is Manslaughter. Sentence? Life imprisonment with a non-parole period of 20 years – five longer than his current sentence.
    We need fairness as OJ liked to say.

    • Geoffrey Luck

      It’s great to read all your comments on this case, but, en passant, I plead not guilty – I argued a legal point, not a moral one. What those who would convict Baden-Clay of murder have to show is how the criminal law could possibly be re-shaped to achieve their end without destroying every principle of the justice system. Until they do, it’s just fruitless outrage.
      The OJ Simpson case was much more complex, and fascinating. The defence played the race card, crucial DNA evidence was discredited, credibility of police witnesses was questioned – all to obscure strong direct evidence that linked blood at the scene of the two murders to shoes and clothing in Simpson’s house. I was living in Italy at the time and watched the broadcast of the trial every day for eight months via my satellite service. The dramatic turning point came when the prosecutor asked Simpson, in the witness box to put on a black leather glove that had been found, soaked in blood, at the murder scene. Its pair was found in Simpson’s house. It should have convicted him; instead it proved the critical mistake of asking a question for which you don’t know the answer. The glove had been frozen and thawed several times and had shrunk; Simpson had on a latex surgical glove. Johnnie Cochran, the rambunctious defence attorney fairly yelled: “If the glove don’t fit, you must acquit!” And it didn’t. Simpson was acquitted, but we can’t be sure why. The prosecution case was botched, the huge defence team constantly ran interference, the jury was predominately black and uneducated. It deliberated for only four hours. Later, a civil case saw Simpson convicted of wrongful death of his wife. He was ordered to pay his two children $12.6 million and the two victims’ families $33.5 million.

      • Jody

        So, “hundreds of years of legal practice” were just plain wrong!!!

  • [email protected]

    The comments get better, and I myself agree more with Jody and en passant. If the killer thought the most just decision of the jury would be Manslaughter then he should initially have pleaded guilty to that. But by making no admission, and being non cooperative and lying about the scratches and the disposal of the body he perhaps guessed he would chance Murder or Acquittal.He didn’t get the acquittal he wanted so now he will try another approach.
    When there is no contrition, no confession, and no cooperation the public is rightfully aggrieved when he now seeks a more lenient sentence.
    The affront of it; he seeks more leniency in our gentle justice system that does not cane or hang even serial killers like Ivan Milat or the mass killer Martin Bryant? It makes me want to demonstrate in Brisbane’s King George Square.

    • acarroll

      It sounds like a strategy formulated by an experienced defence lawyer. Just playing poker/chicken knowing that an appeal is possible. Yes, there’s no death sentence so the stakes aren’t quite as high.

      • Jody

        Come on now; don’t suggest that the legal profession resorts to such things!!! Or other ‘bargains’ and deals. Their main concerns are the principles of justice and the collective good. Yeah, right.

  • [email protected]

    Fiat justitia ruat coelum – Let justice be done though the skies may fall – is a maxim underpinning our legal system. And thank heavens (no pun intended).

    Our system of justice looks to intention to determine penalty. In the absence of this principle – which is only a few hundred years old & stems from the English common law – reason would then dictate any death occasioned by another should attract the same penalty, whether accidental or not.

    Baden-Clay was the beneficiary of pure chance & not a faulty legal system. The fact that the body could not reveal the cause of death (due to decomposition) meant that the Crown could not argue the circumstances of the fatal wound’s infliction could ONLY point to intentional infliction.

    It is for the Crown to prove their case beyond reasonable doubt. An accused need prove nothing. This burden of proof translates into the freedom from both arbitrariness & police state tactics that we all take for granted in this country. Not so in, say, China, where the State enjoys a 99.9% conviction rate – because the State would not bring a charge unless you were guilty! (The few acquittals have nothing to do with a corrupt system, of course.)

    Juries do a very good job indeed. Their involvement in something as important as the criminal justice system is real community participation. Judges tell them their jury service is a community obligation as important as voting in our democracy. Being judged by fellow community members, with no investment in their final verdict save their obligation to exercise a fairness they themselves would expect, is a fine bulwark against oppression.

    Appeal courts are there to determine whether or not the law has been properly explained to them, or, in a minority of occasions, properly reflected in their verdicts. I believe judges do their jobs conscientiously in the overwhelming majority of cases. When they make mistakes, there is an appeal court above them right up to the High Court to correct their errors. And the High Court’s judgment, insofar as it involves policy for future cases of a similar kind, can lead to parliament itself changing the law to reflect community mores.

    I do hope this assists in assuring people our legal system is a first class one. Being a human creation, it’s not perfect, but through slow development over centuries it has come to reflect a certain genius
    of design.

  • en passant

    Geoffrey,
    In my haste, due to the uncontrollable, unintentional, but murderous rage that I felt on reading your views I omitted three very important points, herewith:
    1. As the judges pontificated in their rooms on the points of law (with luck, with a good cigar and a fine port) concerning whether or not B-C had killed Allison with forethought or unintentionally, and whether or not the police, working with forensic clues and shreds of evidence and with no cooperation at all from B-C, who lied, obfuscated, deceived and diverted the police efforts, had proved, not that he killed her, but whether or not it was pre-planned. They came to the conclusion that there was doubt as to intention. We can all see why B-C might have just intended to give her a good beating – as every husband does as part of the marriage contract. In this regard the decomposing Allison provided more facts and evidence for consideration by the jury than B-C, but there was still that 1% chance he was just a wife-beating cretin. What does it matter in law that she was still dead and decomposing beside a creek, when there was a theoretical doubt to consider?
    2. Whether her death was, planned or unplanned, Allison fought for her life as the scratches on B-C’s face showed. But she lost – and now lies a-mouldering in her grave while her killer twists and turns to ameliorate his sentence. Actually, I think she should be exhumed and charged with assault, given the scratches she inflicted. To kill someone who is fighting for their life with you is no easy task, but B-C was up to it and with the scratches surely he now has a case for self-defence? In this situation, for B-C to continue his attack until Allison was dead surely goes beyond any theoretical or academic debate about intention? Surely there is a person and a physical body to consider? Then again, I am not in the only profession I can think of in which deliberately confusing, downright lying and obfuscation brings the greatest accolades and rewards. As you mention, we only have to think about the open and shut OJ case and the legal team that got him off by blackening the name of the investigating detectives and playing the Race Ace. It became irrelevant whether or not two dead people counted for anything. You forgot to mention that OJ has never paid a cent in the civil case.
    3. There is now such a gap between the Law & Justice that it is almost beyond bridging. Last year an Afghan paedophile (with previous convictions) is discharged without conviction in Geelong because the magistrate pondered (pontificated?) that his behaviour may be acceptable in HIS COUNTRY. He has since been arrested twice again attempting to abduct little boys. But here is the rub in the B-C Appeal judgment, “… there was no evidence of intent. The judgment touched on some important points of law.” Might I suggest the proper place to reflect on how many angels can dance on the legal point of intention and such important points of law is while sitting beside the ten day old decomposing body of the deceased in a warm room? Justice is more likely to be better served and the esoteric theory of law, less so.
    Many Judges have lost touch with reality, which is why the incoherent mob is angry. Islamists refuse to stand and the Courts refuse to apply the law to them, so please do not tell me about the majesty of the Law when it is craven when it suits them.
    Finally, if readers think sentencing is bad now, just wait until jihad finds its feet. We have no laws or systems of detention (or eradication) to deal with the pathologically driven. On the purely criminally side the psychopathic, Peter Dupas was allowed out time and again in Victoria – and each time he killed again. Add another factor when you are driven by god and only the death of the killer will stop them. A week ago the Israelis killed a senior Hezbollah Commander, Samir Kunta. He killed a family (including the children) in 1979 and was in prison for 28-years. The day he was released he returned to his murderous ways. Such people have no place in civilised society and can only be eradicated, yet our legal framework cannot deal with this uncivilised reality. We have no current laws that can deal with such people, so if you think the Judges are being criticised now for pondering the 1% chance a routine wife-beating went wrong, just wait and you will see what happens when most of the Parramatta Mosque maniacs walk free – as they will, on important points of law, of course.

  • Geoffrey Luck

    Happily I’m only a writer on the page, and out of reach. With that confession – “In my haste, due to the uncontrollable, unintentional, but murderous rage that I felt on reading your views” – it should be easy to show intent. But then you’d probably get off for being of unsound mind.
    Regards
    Geoffrey

  • Geoffrey Luck

    Happily I’m only a writer on the page, and out of reach. With that confession – “In my haste, due to the uncontrollable, unintentional, but murderous rage that I felt on reading your views” – it should be easy to show intent. But then you’d probably get off for being of unsound mind.
    Regards & Merry Christmas
    Geoffrey

    • en passant

      I would get off on the grounds of provocation.
      Merry Christmas? Now that is the greeting of an unsound mind these days …
      I will be in Brisbane, Sydney, Canberra and Melbourne during 2016, so we can chat then …

  • [email protected]

    “This is a story where the good end happily & the bad unhappily: that is what fiction means.” So said a creation of Oscar Wilde’s. And I’ve seen this discomforting truth played out time & time again over the forty years I’ve played a part in the criminal law as policeman, defence counsel or prosecutor. Disappointments are commonplace, on both sides and at every level – so what to do? Banish juries & employ more judges to determine verdicts? But most people on this page want less of the lawyer’s touch. Banish judges and leave the whole business to lay juries? Well, we’ve had a taste of that approach, prompting Mr Luck’s article. I know, what about the ‘enlightened’ middle ground? “Mob Rule in Quadrant Online”?

    • en passant

      Trevor,
      The jury did not get it wrong. They said it was murder and therefore that the death was intentional and intended with forethought. Then the lawyers twisted the story with an academic seed of doubt …

      • [email protected]

        Yes, this was countenanced in my letter of the 23rd instant, paragraph 6, first sentence.

        It does seem unfair that an accused person receives the benefit of a doubt created in argument on appeal and not in evidence at trial, but an appeal court is bound to analyse what facts were present before the jury at the close of all the evidence. In the heat & dust of trial all of us, judges & counsel as well, occasionally overlook what becomes obvious on a careful analysis of the transcripts. It’s important to note this case has not made new law. The application of principle was unexceptional: Mr Luck’s ‘cogently argued decision’.

        Look, this is not an easy job. Many of us loathe the likes of Baden-Clay, but our duty remains the same.

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