Baden-Clay murder appeal succeeds on doubt over intent, but domestic violence is still a deadly tragedy

Queensland’s Court of Appeal on Tuesday ruled to downgrade Gerard Baden-Clay’s 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 men’s violence against women are undoubtedly concerning.

Background

The investigation into Allison Baden-Clay’s 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 intimate 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-Clay’s 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 victim’s body and scratches to Gerard Baden-Clay’s 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 wife’s 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 men’s 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 law’s 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-Clay’s death, the couple were receiving counselling. Research has consistently 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-Clay’s 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.

Kate Fitz-Gibbon is the 2015 recipient of the Peter Mitchell Churchill Fellowship.