Academic rigour, journalistic flair

Baden-Clay murder appeal succeeds on doubt over intent,

but domestic violence is still a deadly tragedy
December 8, 2015 5.14pm AEDT

Author

Kate Fitz-Gibbon
Lecturer in Criminology, Deakin University

Gerard Baden-Clays murder conviction for the death of his wife Allison has been set aside on appeal.
AAP/Dan Peled

Queenslands Court of Appeal on Tuesday ruled to downgrade Gerard Baden-Clays murder conviction
for the April 2012 killing of his wife Allison to manslaughter. But at a time when Australia is engaging in
a national conversation over the adequacy of legal responses to domestic violence, high-profile decisions
that serve to lessen the culpability of mens violence against women are undoubtedly concerning.

Background
The investigation into Allison Baden-Clays disappearance and death, and the trial and conviction of her
husband, drew national attention to the lethal nature of violence against women in the context of an inti-
mate relationship.

At trial, the prosecution argued that Gerard Baden-Clay killed his wife at their house and then dumped
her body at Kholo Creek. However, he maintained his innocence.

The jury convicted him of murder. He was sentenced in July 2014 to life imprisonment with a minimum
non-parole period of 15 years.

The appeal

In August 2015, Gerard Baden-Clay appealed the conviction for murder on several grounds relating to
remarks made by the judge as part of summing up to the jury.

The Court of Appeal judgment affirms that the jury properly concluded that Gerard Baden-Clay killed
his wife and readily concluded that he took her body to Kholo Creek and left it there.

To this effect, the appeal did not reconsider whether Baden-Clay was responsible for the killing of his
wife.

Rather, the Court of Appeal decision centres on the question of intent and the interpretation of evidence
of Baden-Clays post-offence conduct. The key question was: was it open to the jury to conclude that
when Gerard Baden-Clay killed his wife, he intended to do so or, at minimum, whether he intended to
cause her grievous bodily harm?

A conviction for murder in Queensland requires at minimum an intention to cause grievous bodily
harm.

The defence argued that the injuries to the victims body and scratches to Gerard Baden-Clays face were
not indicative of an intention to kill, nor was evidence of a clean-up following her death. The defence
also submitted that lies told by Gerard Baden-Clay after his wifes disappearance and death might have
been made in panic, and that the disposal of her body was indicative of guilt but not an intention to kill
or premeditation.

Upholding the defence position, the judgment stated:

The post-offence conduct evidence nonetheless remained neutral on the issue of intent. To put it
another way, there remained in this case a reasonable hypothesis consistent with innocence of
murder: that there was a physical confrontation between the appellant and his wife in which
he delivered a blow which killed her (for example, by the effects of a fall hitting her head
against a hard surface) without intending to cause serious harm; and, in a state of panic and
knowing that he had unlawfully killed her, he took her body to Kholo Creek in the hope that it
would be washed away, while lying about the causes of the marks on his face which suggested
 conflict.

The Court of Appeal ruled that the murder conviction constituted an unreasonable verdict. That
verdict has been set aside and substituted with a verdict of manslaughter.

What next?

The case will return to court in January 2016 when Gerard Baden-Clay will be sentenced for
manslaughter. This offence carries a maximum term of life imprisonment, but on average attracts terms
of imprisonment between six and ten years.

The forthcoming sentencing judgment for manslaughter must not reinforce problematic narratives that
excuse mens violence against women. The sentence imposed must reflect the unacceptability of
domestic violence in any context.

Regardless of whether the criminal courts label the case as murder or manslaughter, the laws response
must affirm the rights of all women within domestic relationships. It is not disputed that there were
tensions in the Baden-Clays marriage. Gerard Baden-Clay was experiencing financial difficulties and
admitted to having had an extra-marital affair.

At the time of Allison Baden-Clays death, the couple were receiving counselling. Research has consis-
tently found that periods of separation and marital conflict are the most dangerous for female victims of
domestic violence.

While the motive for her death is known only to her killer, Allison Baden-Clays killing provides yet
another example of the tragic consequences of domestic violence in Australia. In 2015, it has claimed on
average the lives of two Australian women per week.

The case is an important reminder of the need for the current national conversation on domestic
violence to translate into real solutions and improvements to better ensure the safety of Australian
women.

Law Crime Domestic violence Law reform Queensland

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