The Baden-Clay decision is not a setback for domestic violence campaigns

The community must be careful of what it demands of the court system. AAP/Lee Besford

Many have decried the Queensland Court of Appeal’s decision to replace Gerard Baden-Clay’s conviction for murdering his wife, Allison, with one of manslaughter, as sending the wrong message in the campaign against domestic violence.

While the court system must treat domestic violence seriously, the community must be careful of what it demands of the courts. It is always important to be careful about investing a campaign’s meaning in any one case.

Judgment neither condones nor forgives

Gerard Baden-Clay has not been “let off” for killing his wife. In fact, he has at last implicitly admitted his culpability. The sentencing court next year will be able to take into account his deceitful and arrogant post-offence conduct as well as details about any prior domestic and family violence, if available.

Whatever did occur in the Baden-Clays’ relationship, no evidence of a history of domestic violence was placed before the original trial court. Therefore, this was the basis on which the Court of Appeal had to determine the matter.

Australia’s legal system has two levels of offence when someone has committed homicide. One is murder. This requires an intention to kill or cause grievous bodily harm. The other is manslaughter. There are a number of ways that this conviction can result, including where intent cannot be proved beyond reasonable doubt. This is a critically important distinction in a just system.

The Court of Appeal reached a legal conclusion that a number of hypotheses of what occurred the night that Allison Baden-Clay died were open to the jury in the original trial. The jury accepted a set of facts from which they considered intent was proven. However, in the Court of Appeal’s view, other hypotheses – which could not be definitively ruled out – led to doubt about intent.

The Court of Appeal also addressed the issue of Baden-Clay’s subsequent lies, deceit and lack of remorse. Although his conduct and attitude were repulsive and calculated, it found that:

… the post-offensive conduct evidence … remained neutral on the issue of intent.

In other words, Baden-Clay may have engaged in the same behaviour whether he intended to kill or whether he had not intended to cause his wife’s death, but he was nevertheless selfishly protecting himself against any charges by trying to conceal the death.

The Court of Appeal’s decision does not condone nor forgive Baden-Clay. It is logically reasoned and understandable at law, regardless of whether it sits easily with the community or whether it holds if there is an appeal to the High Court.

It is not and never can be the courts’ job when hearing a particular case to “send a message” – although this may be appropriate at the time of sentence.

Lack of sensitivity?

It was unfortunate, and maybe unnecessary, that the Court of Appeal said:

A reasonably open hypothesis was that the appellant’s wife had attacked him, scratching his face. In endeavouring to make her stop he had killed her without intending to do so, with his conduct thereafter being attributable to panic.

That statement seemed to come out of the blue. Having made the point that there was no evidence of a history of domestic violence, the surprising suggestion that Allison Baden-Clay had perhaps been the initial attacker might cause unnecessary hurt to her family and was not essential to explain the court’s position. At least, it could have been described as an unlikely scenario from all that is known of Allison.

If the Court of Appeal was of the view that this hypothesis had to be included in its judgment, it could have been more sensitively suggested in the context of the quite likely conversation on that night: that Gerard Baden-Clay had told his wife that his affair was rekindling and that his mistress would be at the same conference that Allison was planning to attend the following day.

Later, the Court of Appeal acknowledged that the facial scratches may have:

… occurred in the course of a heated and perhaps physical argument or in resisting a murderous attack.

The judgment may have better accommodated Allison and her family if this more likely scenario had been put forward first, with the less likely scenario being offered as an alternative. Such an approach would not have altered the legal outcome.

Reform needed

This case raises the question of whether more information about a history of domestic violence could have been placed before the trial court – perhaps not physical violence, but rather emotional, financial and psychological abuse.

Many aspects of the case hint at this possibility. If this is so, it may be useful to investigate if or why there was a reluctance to obtain and present this material. It is distressing and painful for families to have to watch such intimate and devastating information being discussed in a courtroom and, in this case, then being played out in the media spotlight.

However, perhaps the law in relation to homicide does not contain sufficient reason for the prosecution to seek out such information. There may be room for law reform to ensure that a history of domestic violence is considered relevant in all cases of domestic homicide, whether the person accused was the usual perpetrator or the usual victim.

Queensland has laws to ensure that a history of domestic violence can be presented in cases where someone charged with homicide says they have been the victim of abuse at the hands of the person they have killed.

There is also a provision that can be relied on by the defence or prosecution to present evidence of the “history of the domestic relationship” where a violent offence has been committed in the domestic domain. We may need to investigate whether this provision is well understood and utilised, or requires amendment.

But even if evidence of prior non-physical domestic violence were available, this still would not prove that when Gerard Baden-Clay killed his wife he intended to do so. This is how Australia’s legal system works – and how it should work.

This case should not be misread as a judicial symbol of court tolerance of domestic violence. It is not. But if there is more to learn, then let’s work out what that is and keep on campaigning to end domestic violence.