Queensland Law Society

Opinion editorial by Queensland Law Society president-elect, Bill Potts

Date 16 Dec 2015
Contact Gabrielle Kopke
Phone 07 3842 5903
Mobile 0488 433 884
Email g.kopke@qls.com.au

Published in The Courier Mail, 15 December 2015

Justice in Baden-Clay case will be determined by his sentence

Shock, disappointment and confusion are some of the emotions people have expressed in the wake of the Baden-Clay appeal. This is an emotional circumstance, a beloved mother is now gone. Three children have lost both parents.

It is understandable the community is looking for explanations for what many have said is inexplicable. Sadly the criminal justice system is all too often required to deal with tragic cases like this. Heartbreaking stories of human cruelty and frailty are the daily grist of the criminal courts and judging fellow humans publicly is the often thankless task of our judicial officers. A job they do with great distinction.

What the reaction to the Baden-Clay case tests is the rule of law and our commitment to it. The rule of law means that a just society has laws which apply to everybody, equally. It also means everybody is judged without fear or favour by a court, independently and objectively. This is regardless of how reprehensible or heinous the defendant may be. Indeed the greatest strength of our Australian liberal democracy is that the independent court stands between the citizen and the state that brings the charges, and administers justice according to the law. Judges do not judge according to the emotion and revulsion surrounding the circumstances of the crime. They are naturally influenced by the standards of our community, of which they are an integral part, but they must, however, apply the law dispassionately.

Critically in the Baden-Clay case, the Court of Appeal affirmed the jury's finding that Mr Baden-Clay killed his wife. Like the jury, the Court of Appeal clearly did not believe Mr Baden-Clay's lies.

One thing to note about the case is that “murder” is defined very narrowly under Queensland law; more narrowly than in common understanding of the word. It requires not just a lethal act. There must be an intention to kill or cause grievous bodily harm on the perpetrator’s part.

A person’s intentions – that is, their inner thoughts and feelings – are difficult to prove beyond a reasonable doubt. If the prosecution proves everything about a murder except intention, they have only proven manslaughter. This has been our criminal law for more than 100 years.

The second thing to note is in our criminal justice system, the prosecution bears the burden of proof. It is up to the prosecution to prove guilt, not for the defendant to prove their innocence. This is why Mr Baden-Clay’s sworn lies did not shift the burden which always remains on the prosecution.

A court does not have the authority to decide whether a defendant “deserves” the benefit of the doubt; it is the defendant’s absolute right.

Above all, the jury system works. Twelve people chosen at random brought with them their common sense and knowledge of human behaviour. They applied this to all of the evidence put to them by a skilled prosecutor and ruled admissible by the state's most senior trial judge. There can be and there is no criticism of the jury's decision or the legal directions of the trial judge.

But it is fundamental to our justice system that both the prosecution and the defence can appeal decisions in the legal process and that their arguments are heard by judges who were not involved in the original trial. The Attorney-General now also has a right to appeal to the next level of court.

Justice is a human system where all too often humanity is lacking in the crime and the cover up. That the Court of Appeal found that the prosecution failed to prove intent to kill Allison Baden-Clay and found that result despite her husband’s untruthfulness, indicates that even among lawyers, views may reasonably differ about the law and its application in individual cases. Justice, if it is not individual, is not justice at all. The justice is in his sentence, which is yet to be determined.

The public focus on how the justice system works and the exercise of free speech is a good thing for our democracy.

Last week, the front page of this paper stated that “The law is an ass”.

Many Queenslanders seem to agree and maybe they are right: Like the humble and sometimes maligned ass, the law can be slow, stubborn, and methodical. It does the hard, heavy and thankless jobs others don’t want to do and it does not always do what we want. It is impervious to our shouting. As it should be.