Legal Studies The Baden-Clay Case

Mrs Lee/Ms Rynne/ Mr Weir

Weebly Introduction

http://year10businesslegalstudies.weebly.com

This site will have the majority of the content and resources that are required for
this term.

We will have an individual assessment piece that will be a research based

examination task. You will be able to research prior to the exam and bring in
some notes into the examination. It will be a short response/response to
stimulus examination.

This term we will be generally discussing the crime of murder. Please remember
to be sensitive to the fact that someone has died and that there are real family
members to who will be grieving.

We will be investigating how the jury and judge came to their decisions in the
case as well as discussing the four grounds for appeal and decision of the
Queensland Supreme Court of Appeal. And finally, a discussion of the grounds
for appeal in the High Court of Australia.

Alison and Gerard Baden-Clay

What do I know about the case?

What do I want to know about the case?

Sources of Law

In 1901 Australia Federated. As part of Federation, the Australian Constitution

was developed. The Constitution of Australia is the supreme law under which
the government of the Commonwealth of Australia operates, including its
relationship to the States of Australia. It also created the states and give them
powers or responsibilities.
Section 51 of the Constitution outlines the responsibilities of the Federal
Government and all elements not stated become the responsibilities of the
States. This is called residual powers.
The Commonwealth can make laws about trade, currency, post, marriage,
customs, immigration etc.
So the states therefore can make laws about crimes, education, hospitals etc.

Criminal Code (1899) QLD

As the Constitution gave powers to the states to make laws about crime, the
Queensland government set about making the Criminal Code. It was developed
in 1899 and came into effect on the 1st January 1901.
Although still uses the date of 1899 in its title it is offend amended (changed) to
suit the needs of society.
http://www.austlii.edu.au/au/legis/qld/consol_act/cc189994/

Murder Criminal Code (1899) QLD

302 Definition of murder
(1) Except as hereinafter set forth, a person who unlawfully kills another under any of
the following circumstances, that is to say
(a) if the offender intends to cause the death of the person killed or that of some
other person or if the offender intends to do to the person killed or to some other
person some grievous bodily harm;
(b) if death is caused by means of an act done in the prosecution of an unlawful
purpose, which act is of such a nature as to be likely to endanger human life;
(c) if the offender intends to do grievous bodily harm to some person for the purpose
of facilitating the commission of a crime which is such that the offender may be
arrested without warrant, or for the purpose of facilitating the flight of an offender
who has committed or attempted to commit any such crime;
(d) if death is caused by administering any stupefying or overpowering thing for
either of the purposes mentioned in paragraph (c);
(e) if death is caused by wilfully stopping the breath of any person for either of such
purposes;
is guilty of murder.

Section 302 Cont

(2) Under subsection (1)(a) it is immaterial that the offender did not intend to
hurt the particular person who is killed.
(3) Under subsection (1)(b) it is immaterial that the offender did not intend to
hurt any person.
(4) Under subsection (1)(c) to (e) it is immaterial that the offender did not intend
to cause death or did not know that death was likely to result.

Murder Criminal Code (1899) QLD

305 Punishment of murder

(1) Any person who commits the crime of murder is liable to imprisonment for
life, which can not be mitigated or varied under this Code or any other law or is
liable to an indefinite sentence under part 10 of the Penalties and Sentences Act
1992.
(2) If the person is being sentenced
(a) on more than 1 conviction of murder; or
(b) on 1 conviction of murder and another offence of murder is taken into
account; or
(c) on a conviction of murder and the person has on a previous occasion been
sentenced for another offence of murder;
the court sentencing the person must make an order that the person must not
be released from imprisonment until the person has served a minimum of 30 or
more specified years of imprisonment, unless released sooner under
exceptional circumstances parole under the Corrective Services Act 2006.

Section 305 Cont

(3) Subsection (2)(c) applies whether the crime for which the person is being sentenced
was committed before or after the conviction for the other offence of murder mentioned
in the paragraph.
(4) If
(a) the person killed was a police officer at the time the act or omission that caused
the person's death was done or made; and
(b) the person being sentenced did the act or made the omission that caused the
police officer's death
(i) when
(A) the police officer was performing the officer's duty; and
(B) the person knew or ought reasonably to have known that he or she was a
police officer; or
(ii) because the police officer was a police officer; or
(iii) because of, or in retaliation for, the actions of the police officer or another
police officer in the performance of the officer's duty;

Section 305 cont

the court sentencing the person must make an order that the person must not be
released from imprisonment until the person has served a minimum of 25 or more
specified years of imprisonment, unless released sooner under exceptional
circumstances parole under the Corrective Services Act 2006.

Murder Amendments

Read the following article related the recent amendments to the CC regarding
the law of murder.

http://
www.brisbanetimes.com.au/queensland/bill-increases-jail-time-for-queenslandmurderers-20120821-24lee.html

Manslaughter

Criminal Code 1899 - SECT 303

303 Definition of manslaughter 303 Definition of manslaughter
A person who unlawfully kills another under such circumstances as not to
constitute murder is guilty of manslaughter.

Criminal Code 1899 - SECT 310

310 Punishment of manslaughter 310 Punishment of manslaughter
Any person who commits the crime of manslaughter is liable to imprisonment
for life.

Rules of Evidence in a Criminal Trila

Person bringing action

Prosecutor

Person defending action

Accused/defendant

Name of court action

trial

Party with onus of proof

Prosecutor

Standard of proof

Beyond a reasonable doubt

Consequences of a successful
action

Sentences, fined, community

service, warning, prison

Consequences of unsuccessful Acquitted, and free to leave

action

 Evidence is the material or information that is relevant to establishing the

facts in issue.
Rules of evidence exist to protect the accused or defendant, to stop the
jury being side tracked and to save time in court.
Direct evidence is the best type of evidence the making of a statement be
it oral or written, that a fact is true as it was seen, heard or felt.
Indirect evidence or circumstantial evidence is evidence of facts with
make it probable that other material facts are true. Eg the accused saying
1 hr earlier that he would like to sort out that person, or seeing the person
leave the hotel just before the incident

Types of evidence
Oral presented by witness in person. Must submit to cross
examination (video or audio tapes are documentary evidence)
Must decide which witness has greater credibility
Documentary evidence in the form of documents made available
to the opposing party for inspection. Eg medical report
Real evidence physical objects that are relevant to proving the
case eg knife in a murder

Admissible v inadmissible evidence

Admissible evidence is evidence that is allowed to be used in the
court proceeding
Inadmissible evidence is evidence that is not allowed to be used
in the court proceedings. Eg irrelevant, hearsay, opinion,
privileged communications, character, illegal or unfairly obtained

Appeals

http://
www.couriermail.com.au/news/queensland/states-youngest-murderer-has-jail-se
ntence-reduced-on-appeal/story-e6freoof-1226120258217

Witnesses
You may be asked to attend court as a witness if you have informationif
you saw or heard something relevant to the case or were involved in the
events in some waythat will help the court come to a fair decision. Victims
of violent crime are very important witnesses.
You may also be asked to go to court as an expert witnesssuch as a
doctor or engineerto provide advice about the evidence presented.
You can be asked to appear as a witness for the prosecution or the defence.
In either case you may be asked questions about what you know by both the
defence and prosecution lawyers. This is to ensure the facts presented about
the crime are correct.

Witnesses
The court process can be daunting for a witness, particularly if you
witness a violent crime. Information, support and advice are
available to help throughout the legal process.
1. Victim Assist QLD
2. Relationships Australia
3. Court Network
4. Office of the Director of Public Prosecutions

Witnesses
You may be legally ordered to go to court as a witness,
particularly if you are a witness for the prosecutionthis
is called a summons if you are needed as a witness in a
Magistrates Court, or a subpoena if you are called as a
witness in a District or Supreme Court.
If you are summonsed or subpoenaed and do not attend
court, you may be found guilty of contempt of court and a
warrant may be issued for your arrest.

Witnesses
If you get a summons or subpoena to go to court, it should tell you the day the trial is
due to start. If you are unsure when to go to court, contact the person who has
requested you to appear as a witnesstheir details should be on the summons or
subpoena.
If you are a victim of crime, your victim liaison officer, or the prosecutor, will tell you
when to go to court.
If you are appearing as a witness for the defence, the defence lawyer will normally tell
you when to go to court.
At the courts you will be met by the person who has asked you to attend court
normally the defence or prosecution lawyerand they will take you to an area outside
the courtroom to wait; some courthouses have secure waiting rooms for witnesses.
You are not allowed into the courtroom until you are called to give your evidence. You
shouldnt talk to other witnesses about the case before you and they have given
evidence.

Witnesses
Vulnerable witnessesincluding children, victims of sexual assault and people with an
intellectual disabilitymay be given special help to reduce the trauma of giving
evidence in court.
If you are a vulnerable witnesses you may be able to:

have a support person with you in court

record your evidence or give it over a video connection from a remote witness
room

have a screen put up so you dont have to see the accused person

have the court closed to the public and media.

Witnesses
You will be called to give evidence by a court officialcalled a court services officer in a
Magistrates Court or a bailiff in a District and Supreme Court. They will ask to go into the
witness box and take an oath or affirmationa promisethat what you say is the truth.
The witness box is where you will give your evidence.
The lawyers for the defence and prosecution will then ask you questions about what you
know. Only answer the questions they ask you; take your time, keep calm and answer
each question clearly. If you don't understand a question or you didnt hear it properly, ask
them to repeat it. If you feel upset or distressed, pause; you can ask for a break if you
need to. Continue with your evidence only when you are ready; its important everyone in
the court hears and understands your evidence.
Always tell the truth when you answer questions. It is a crimeperjuryto lie in court.
When you finish giving evidence you will be released from your oath, and asked to stand
down and leave the witness box. You may continue to watch the trial from the public
gallery if you wish.

How to write a witness statement?

Please have a look at one of the witness statements made by Toni McHugh from the
case tab on the weebly. Have a look at how it is structured. Ensure that you also look
at the statement at the end of the document.
How many witnesses were called at the trial of Gerard Baden-Clay? Hint: look at
witness list on the case tab of the weebly. Each would have made written statements
also before the Prosecutors decided to call them to give oral evidence at the trial.
An example of a simple statement is below:
http://
www.legalaid.qld.gov.au/files/assets/public/publications/cars-and-driving/accident-sam
ple-witness-statement.pdf
An example of a statement to the Qld police is below
http://www.floodcommission.qld.gov.au/__data/assets/pdf_file/0012/7050/QFCI_Exhibi
t_198_-_
Statement_of_Christie_Maree_Minns.pdf

How to write a witness statement?

Hints and Tips:

Should be typed and each page numbered and signed by the witness

Headed with your name, address, occupation, date of statement

Each paragraph or point should be numbered

Should be based on facts of what you heard or saw, no emotive language

From what you have seen from the examples, what else should be
included??

CLICKVIEW

Watch clickview Eyewitness Testimony

Victim Impact Statements

If you are victim of violent crime, you can make a victim impact statement.
This is a written description of how the crime has affected you physically,
emotionally and psychologically. This can be taken into consideration by the
magistrate or judge during sentencing.
Alisons family read victim impact statements at the sentencing of Gerard
Baden-Clay.
Can you find anything from their statements online?

Witness Statements are a reliable form of evidence in

a criminal law court case.

Conduct some research individually and write a

paragraph outlining your view on the above statement.
When completed, be prepared to share your paragraph
with the class ensuring that you can support your view
with valid points.

Juries

Please have a look at the Juries Act (1995) QLD

http://www5.austlii.edu.au/au/legis/qld/consol_act/ja199591/

Jury Selection

https://www.youtube.com/watch?v=TSczl1J80ww

History of Juries

No free man shall be seized, or imprisoned, or dispossessed or outlawed, or in

any way destroyed; nor will we condemn him, nor will we commit him to prison,
except by the legal judgement of his peers, or by the laws of the land.
Magna Carta 1215.

the trial on indictment of any offence against any law of the Commonwealth
shall be by jury
The Constitution of Australia, Sec 80

Juries

The juries role is to decide if the accused is guilty or not guilty on the
admissible evidence presented at trial.

IF they find the accussed guilty, it is then the judge that determines the
sentence based on precedent (previous punishments for similar crimes), the
sentence set out in the Criminal Code and the mitigating factors.

It is only indictable offences that have a jury. In simple offences it is the

magistrate that decides both the facts and law, decision and sentence.

Therefore the actual percentage of cases heard by a jury is actually quite

small. Generally only cases from the district court and supreme court.

There are a range of offences for which the accused can elect to be tried by a
judge/magistrate only.

It is estimated that less than 5% of criminal cases case to a jury trial.

Juries

Juries are regarded as impartial fact finders because they are randomly
selected and represent the cross section of the community.

DO you think this is true?

. The genius of the jury system is that it allows for the ordinary
experiences of the ordinary people to be brought to bear in the determination
of factual matters, Doney v R (1990)

Juries

British researchers have reported that data obtained in an experiment shows

that the jurors were more likely to convict suspects deemed ugly than those
seen as attractive. This indicates that jurors may be swayed by irrelevant
considerations such as physical appearance. Do you think this could happen
in Australia?

Do you think that judges, who are supposed to be impartial, could also be
swayed by appearance?

Juries

Jury duty is compulsory to all persons on the electoral role, for all people
qualified to serve.

Failure to respond to a jury notice can amount to contempt of court and fine
of $40-$2000 can be issued.

Refer to section 4 of the Juries Act for who can serve

Refer to section 21 of the Juries Act to see the criteria for being excused from
jury service.

The sheriffs office in QLD said one in five people called for jury service
avoids it by offering excuses. Eg illness, holidays prepaid, self employed, uni
exams, child rearing.

Juries

A panel of 36 random jurors are chosen for each case and from those, 12
must be chosen. The numbers are put in a barrel which is spun and a
number is pulled out.

Before the juror gets to the baliff, each side can reject the juror. The defence
says challenge and the Crown (police prosecutor) says standby. No reason
must be given.

Sometimes there are reserve jurors sworn in.

If a juror becomes ill etc the jury can continue as long as it doesnt get below
10 members.

If a jury cannot come to a unanimous decision, it is called a hung jury. In this

situation the jury will be dismissed and a new trial will be ordered.

Jury room deliberations must be kept confidential. It is assumed that they

come to the decision based solely on the evidence.

Juries

Recent Changes:
Unanimous verdicts are now only required for murder and other criminal
offences where there is a mandatory life sentence.
All other offences now have a majority verdict. Where one person could
be dissenting in their decision. The judge will only accept a majority
verdict if the deliberations have been going for more than 8 hours.

Is it possible to have guilty beyond a reasonable doubt with a majority

verdict?

Juries

Most countries of the world dont have a jury system. Some follow the
inquisitorial system of justice rather than the adversarial system that
Australia and the US and the UK etc follow.

Should we abolish the jury system?

Interesting Articles on Juries

http://
www.news.com.au/technology/online/legal-fraternity-debates-the-relevance-of-jur
ies-in-light-of-the-social-media-age/story-fnjwnhzf-1227477097204

Article regarding the appeal of Baden-Clay and the directions to the jury
http://www.qt.com.au/news/baden-clay-in-court-to-fight-murder-conviction/2731
248
/

Grounds for Appeal Queensland Supreme Court of

Appeal
Use the link below to highlight the reasons for appeal. Use your knowledge so
far to provide evidence/reasons for each ground of appeal. Finally make a
decision as to whether you believe the appeal will be successful or not and
justify this decision.

I:\Business and Technology\Year 10 Economics and Business\Semester 2\Term 3 Legal Studies\graphic organiser - appeal.docx

High Court of Australia

http://
www.brisbanetimes.com.au/queensland/gerard-badenclay-high-court-to-hear-appe
al-on-july-26-20160513-goujtv.html

http://
www.couriermail.com.au/news/queensland/crime-and-justice/four-reasons-highcourt-can-make-gerard-badenclay-a-murderer-after-special-leave-to-appeal-gr
anted/news-story/8231e72690cee8ba51cf899d12d3cea8