Queensland Law Society

Baden-Clay High Court hearing to be a complex legal argument

Date 25 Jul 2016
Contact Tony Keim
Phone 07 3842 5835
Mobile 0488 433 884
Email media@qls.com.au

Queensland Law Society president Bill Potts has warned anyone expecting courtroom bombshells or theatrics when the High Court sits in Brisbane to hear convicted wife killer Gerard Baden-Clay’s case on Tuesday will most certainly be disappointed.

Mr Potts said it was important the public were aware the High Court hearing would be filled with complex and confusing legal argument and that the court was unlikely to make a ruling at the close of the day’s proceedings.

“The High Court is the country’s final arbiter on matters of law and that is what it will be focussed on, not TV ratings or newspaper sales,” said Mr Potts.

“You can expect the court to hear limited argument on the legal issues, and to take whatever time it needs to get the decision right.

Mr Potts said High Court hearings operated differently from most other courts in Australia, with a focus on narrowing the arguments and limiting material put before the court.

“Each side is limited to 20 pages of written submissions, plus appendices, which the members of the court will have read before the day of the hearing. In essence, the arguments have already been made to the court,” he said.

“Oral argument will take place before the court, and the barristers involved will be questioned by the judges, but no witnesses will be called or cross-examined. It is also highly unlikely Gerard Baden-Clay will be present in the court.”

“You won’t see lawyers thundering away at witnesses or pounding the bar table in passion; this will be all about the law.”

Mr Potts said the court was considering complex legal argument from expert lawyers on both sides and would be aware of, but unmoved by, the interest in the case from the media and the public.

He said it was important the public was aware there were three possible outcomes as a result of the High Court’s decision.

Firstly, the High Court could disagree with the Queensland Court of Appeal’s decision to quash the Baden-Clay’s jury finding that he was guilty of murder and reinstate the conviction.

Alternately, they can agree with the Court of Appeal ruling and maintain the manslaughter conviction and remit the case back to that court for Baden-Clay to be sentenced.

“It is important people understand that if the manslaughter conviction is maintained Baden-Clay still faces a maximum penalty of life imprisonment,” he said.

“And thirdly, there is a very slim chance the High Court could rule the matter be returned to the Supreme Court for Baden-Clay to be retried. But I stress, that is highly unlikely.

“The court will make its decision without fear or favour and based on the letter of the law and the facts as found, they will take the time they need to apply their collective and considerable legal nous to this appeal; when it is handed down the decision will be impeccably reasoned and scrupulously fair.”

Mr Potts said that the legal profession and wider public should respect the decision whichever way it went, and that he hoped that the media would do as well.

“However people feel about the eventual outcome, we can’t lose sight of the fact that Alison Baden-Clay’s children and parents will inevitably be affected by the reaction to the decision,” he said.

”They are victims too and deserve whatever peace the finalisation of this matter can bring them.”


For further information, please contact Tony Keim on 07 3842 5835, mobile 0488 433 884 or via email, media@qls.com.au.