1. Legal Studies – The Baden-Clay Case
Mrs Lee/Ms Rynne/ Mr Weir

2. Weebly Introduction
This site will have the majority of the content and resources that are required for this term.
We will have an individual assessment piece that will be a research based examination task. You will be able to research prior to the exam and bring in some notes into the examination. It will be a short response/response to stimulus examination.
This term we will be generally discussing the crime of murder. Please remember to be sensitive to the fact that someone has died and that there are real family members to who will be grieving.
We will be investigating how the jury and judge came to their decisions in the case as well as discussing the four grounds for appeal and decision of the Queensland Supreme Court of Appeal. And finally, a discussion of the grounds for appeal in the High Court of Australia.

3. Alison and Gerard Baden-Clay

4. What do I know about the case?
What do I want to know about the case?

5. Sources of Law
In 1901 Australia Federated. As part of Federation, the Australian Constitution was developed. The Constitution of Australia is the supreme law under which the government of the Commonwealth of Australia operates, including its relationship to the States of Australia. It also created the states and give them powers or responsibilities.
Section 51 of the Constitution outlines the responsibilities of the Federal Government and all elements not stated become the responsibilities of the States. This is called residual powers.
The Commonwealth can make laws about trade, currency, post, marriage, customs, immigration etc.
So the states therefore can make laws about crimes, education, hospitals etc.

6. Criminal Code (1899) QLD
As the Constitution gave powers to the states to make laws about crime, the Queensland government set about making the Criminal Code. It was developed in 1899 and came into effect on the 1st January 1901.
Although still uses the date of 1899 in its title it is offend amended (changed) to suit the needs of society.

7. Murder – Criminal Code (1899) QLD
302 Definition of murder
(1) Except as hereinafter set forth, a person who unlawfully kills another under any of the following circumstances, that is to say—
(a) if the offender intends to cause the death of the person killed or that of some other person or if the offender intends to do to the person killed or to some other person some grievous bodily harm;
(b) if death is caused by means of an act done in the prosecution of an unlawful purpose, which act is of such a nature as to be likely to endanger human life;
(c) if the offender intends to do grievous bodily harm to some person for the purpose of facilitating the commission of a crime which is such that the offender may be arrested without warrant, or for the purpose of facilitating the flight of an offender who has committed or attempted to commit any such crime;
(d) if death is caused by administering any stupefying or overpowering thing for either of the purposes mentioned in paragraph (c);
(e) if death is caused by wilfully stopping the breath of any person for either of such purposes;
is guilty of murder.

8. Section 302 Con’t
(2) Under subsection (1)(a) it is immaterial that the offender did not intend to hurt the particular person who is killed.
(3) Under subsection (1)(b) it is immaterial that the offender did not intend to hurt any person.
(4) Under subsection (1)(c) to (e) it is immaterial that the offender did not intend to cause death or did not know that death was likely to result.

9. Murder – Criminal Code (1899) QLD
305 Punishment of murder
(1) Any person who commits the crime of murder is liable to imprisonment for life, which can not be mitigated or varied under this Code or any other law or is liable to an indefinite sentence under part 10 of the Penalties and Sentences Act
(2) If the person is being sentenced—
(a) on more than 1 conviction of murder; or
(b) on 1 conviction of murder and another offence of murder is taken into account; or
(c) on a conviction of murder and the person has on a previous occasion been sentenced for another offence of murder;
the court sentencing the person must make an order that the person must not be released from imprisonment until the person has served a minimum of 30 or more specified years of imprisonment, unless released sooner under exceptional circumstances parole under the Corrective Services Act 2006.

10. Section 305 Con’t
(3) Subsection (2)(c) applies whether the crime for which the person is being sentenced was committed before or after the conviction for the other offence of murder mentioned in the paragraph.
(4) If—
(a) the person killed was a police officer at the time the act or omission that caused the person's death was done or made; and
(b) the person being sentenced did the act or made the omission that caused the police officer's death—
(i) when—
(A) the police officer was performing the officer's duty; and
(B) the person knew or ought reasonably to have known that he or she was a police officer; or
(ii) because the police officer was a police officer; or
(iii) because of, or in retaliation for, the actions of the police officer or another police officer in the performance of the officer's duty;

11. Section 305 con’t
the court sentencing the person must make an order that the person must not be released from imprisonment until the person has served a minimum of 25 or more specified years of imprisonment, unless released sooner under exceptional circumstances parole under the Corrective Services Act 2006.

12. Murder Amendments
Read the following article related the recent amendments to the CC regarding the law of murder.
queensland-murderers lee.html

13. Manslaughter Criminal Code 1899 - SECT 303
303 Definition of manslaughter 303 Definition of manslaughter
A person who unlawfully kills another under such circumstances as not to constitute murder is guilty of manslaughter.
Criminal Code SECT 310
310 Punishment of manslaughter 310 Punishment of manslaughter
Any person who commits the crime of manslaughter is liable to imprisonment for life.

14. Rules of Evidence in a Criminal Trila
Person bringing action
Prosecutor
Person defending action
Accused/defendant
Name of court action
trial
Party with onus of proof
Standard of proof
Beyond a reasonable doubt
Consequences of a successful action
Sentences, fined, community service, warning, prison
Consequences of unsuccessful action
Acquitted, and free to leave

15. Evidence is the material or information that is relevant to establishing the facts in issue.
Rules of evidence exist to protect the accused or defendant, to stop the jury being side tracked and to save time in court.
Direct evidence is the best type of evidence – the making of a statement be it oral or written, that a fact is true as it was seen, heard or felt.
Indirect evidence or circumstantial evidence is evidence of facts with make it probable that other material facts are true. Eg the accused saying 1 hr earlier that he would like to sort out that person, or seeing the person leave the hotel just before the incident

16. Types of evidence
Oral – presented by witness in person. Must submit to cross examination (video or audio tapes are documentary evidence) Must decide which witness has greater credibility
Documentary evidence – in the form of documents made available to the opposing party for inspection. Eg medical report
Real evidence – physical objects that are relevant to proving the case eg knife in a murder

17. Admissible v inadmissible evidence
Admissible evidence is evidence that is allowed to be used in the court proceeding
Inadmissible evidence is evidence that is not allowed to be used in the court proceedings. Eg irrelevant, hearsay, opinion, privileged communications, character, illegal or unfairly obtained

18. Appeals
jail-sentence-reduced-on-appeal/story-e6freoof

19. Witnesses
You may be asked to attend court as a witness if you have information—if you saw or heard something relevant to the case or were involved in the events in some way—that will help the court come to a fair decision. Victims of violent crime are very important witnesses.
You may also be asked to go to court as an expert witness—such as a doctor or engineer—to provide advice about the evidence presented.
You can be asked to appear as a witness for the prosecution or the defence. In either case you may be asked questions about what you know by both the defence and prosecution lawyers. This is to ensure the facts presented about the crime are correct.

20. Witnesses
The court process can be daunting for a witness, particularly if you witness a violent crime. Information, support and advice are available to help throughout the legal process.
Victim Assist QLD
Relationships Australia
Court Network
Office of the Director of Public Prosecutions

21. Witnesses
You may be legally ordered to go to court as a witness, particularly if you are a witness for the prosecution—this is called a ‘summons’ if you are needed as a witness in a Magistrates Court, or a ‘subpoena’ if you are called as a witness in a District or Supreme Court.
If you are summonsed or subpoenaed and do not attend court, you may be found guilty of contempt of court and a warrant may be issued for your arrest.

22. Witnesses
If you get a summons or subpoena to go to court, it should tell you the day the trial is due to start. If you are unsure when to go to court, contact the person who has requested you to appear as a witness—their details should be on the summons or subpoena.
If you are a victim of crime, your victim liaison officer, or the prosecutor, will tell you when to go to court.
If you are appearing as a witness for the defence, the defence lawyer will normally tell you when to go to court.
At the courts you will be met by the person who has asked you to attend court— normally the defence or prosecution lawyer—and they will take you to an area outside the courtroom to wait; some courthouses have secure waiting rooms for witnesses.
You are not allowed into the courtroom until you are called to give your evidence. You shouldn’t talk to other witnesses about the case before you and they have given evidence.

23. Witnesses
Vulnerable witnesses—including children, victims of sexual assault and people with an intellectual disability—may be given special help to reduce the trauma of giving evidence in court.
If you are a vulnerable witnesses you may be able to:
 have a support person with you in court
record your evidence or give it over a video connection from a remote witness room
have a screen put up so you don’t have to see the accused person
have the court closed to the public and media.   

24. Witnesses
You will be called to give evidence by a court official—called a court services officer in a Magistrates Court or a bailiff in a District and Supreme Court. They will ask to go into the witness box and take an oath or affirmation—a promise—that what you say is the truth. The witness box is where you will give your evidence.
The lawyers for the defence and prosecution will then ask you questions about what you know. Only answer the questions they ask you; take your time, keep calm and answer each question clearly. If you don't understand a question or you didn’t hear it properly, ask them to repeat it. If you feel upset or distressed, pause; you can ask for a break if you need to. Continue with your evidence only when you are ready; it’s important everyone in the court hears and understands your evidence.
Always tell the truth when you answer questions. It is a crime—perjury—to lie in court.
When you finish giving evidence you will be released from your oath, and asked to stand down and leave the witness box. You may continue to watch the trial from the public gallery if you wish.

25. How to write a witness statement?
Please have a look at one of the witness statements made by Toni McHugh from the case tab on the weebly. Have a look at how it is structured. Ensure that you also look at the statement at the end of the document.
How many witnesses were called at the trial of Gerard Baden-Clay? Hint: look at witness list on the case tab of the weebly. Each would have made written statements also before the Prosecutors decided to call them to give oral evidence at the trial.
An example of a simple statement is below:
driving/accident-sample-witness-statement.pdf
An example of a statement to the Qld police is below”
t_198_-_Statement_of_Christie_Maree_Minns.pdf

26. How to write a witness statement?
Hints and Tips:
Should be typed and each page numbered and signed by the witness
Headed with your name, address, occupation, date of statement
Each paragraph or point should be numbered
Should be based on facts of what you heard or saw, no emotive language
From what you have seen from the examples, what else should be included??

27. CLICKVIEW
Watch clickview “Eyewitness Testimony”

28. Victim Impact Statements
If you are victim of violent crime, you can make a victim impact statement. This is a written description of how the crime has affected you physically, emotionally and psychologically. This can be taken into consideration by the magistrate or judge during sentencing.
Alison’s family read victim impact statements at the sentencing of Gerard Baden-Clay.
Can you find anything from their statements online?

29. Witness Statements are a reliable form of evidence in a criminal law court case.
Conduct some research individually and write a paragraph outlining your view on the above statement.
When completed, be prepared to share your paragraph with the class ensuring that you can support your view with valid points.

30. Juries
Please have a look at the Juries Act (1995) QLD

31. Jury Selection

32. History of Juries
“No free man shall be seized, or imprisoned, or dispossessed or outlawed, or in any way destroyed; nor will we condemn him, nor will we commit him to prison, except by the legal judgement of his peers, or by the laws of the land.”
Magna Carta 1215.
“the trial on indictment of any offence against any law of the Commonwealth shall be by jury”
The Constitution of Australia, Sec 80

33. Juries
The juries role is to decide if the accused is guilty or not guilty on the admissible evidence presented at trial.
IF they find the accussed guilty, it is then the judge that determines the sentence based on precedent (previous punishments for similar crimes), the sentence set out in the Criminal Code and the mitigating factors.
It is only indictable offences that have a jury. In simple offences it is the magistrate that decides both the facts and law, decision and sentence.
Therefore the actual percentage of cases heard by a jury is actually quite small. Generally only cases from the district court and supreme court.
There are a range of offences for which the accused can elect to be tried by a judge/magistrate only.
It is estimated that less than 5% of criminal cases case to a jury trial.

34. Juries
Juries are regarded as impartial fact finders because they are randomly selected and represent the cross section of the community.
DO you think this is true?
“…. The genius of the jury system is that it allows for the ordinary experiences of the ordinary people to be brought to bear in the determination of factual matters”, Doney v R (1990)

35. Juries
British researchers have reported that data obtained in an experiment shows that the jurors were more likely to convict suspects deemed ugly than those seen as attractive. This indicates that jurors may be swayed by irrelevant considerations such as physical appearance. Do you think this could happen in Australia?
Do you think that judges, who are supposed to be impartial, could also be swayed by appearance?

36. Juries
Jury duty is compulsory to all persons on the electoral role, for all people qualified to serve.
Failure to respond to a jury notice can amount to contempt of court and fine of $40-$2000 can be issued.
Refer to section 4 of the Juries Act for who can serve
Refer to section 21 of the Juries Act to see the criteria for being excused from jury service.
The sheriff’s office in QLD said one in five people called for jury service avoids it by offering excuses. Eg illness, holidays prepaid, self employed, uni exams, child rearing.

37. Juries
A panel of 36 random jurors are chosen for each case and from those, 12 must be chosen. The numbers are put in a barrel which is spun and a number is pulled out.
Before the juror gets to the baliff, each side can reject the juror. The defence says challenge and the Crown (police prosecutor) says standby. No reason must be given.
Sometimes there are reserve jurors sworn in.
If a juror becomes ill etc the jury can continue as long as it doesn’t get below 10 members.
If a jury cannot come to a unanimous decision, it is called a hung jury. In this situation the jury will be dismissed and a new trial will be ordered.
Jury room deliberations must be kept confidential. It is assumed that they come to the decision based solely on the evidence.

38. Juries
Recent Changes:
Unanimous verdicts are now only required for murder and other criminal offences where there is a mandatory life sentence.
All other offences now have a majority verdict. Where one person could be dissenting in their decision. The judge will only accept a majority verdict if the deliberations have been going for more than 8 hours.
Is it possible to have guilty beyond a reasonable doubt with a majority verdict?

39. Juries
Most countries of the world don’t have a jury system. Some follow the inquisitorial system of justice rather than the adversarial system that Australia and the US and the UK etc follow.
Should we abolish the jury system?

40. Interesting Articles on Juries
relevance-of-juries-in-light-of-the-social-media-age/story-fnjwnhzf
Article regarding the appeal of Baden-Clay and the directions to the jury
conviction/ /

41. Grounds for Appeal – Queensland Supreme Court of Appeal
Use the link below to highlight the reasons for appeal. Use your knowledge so far to provide evidence/reasons for each ground of appeal. Finally make a decision as to whether you believe the appeal will be successful or not and justify this decision.
I:\Business and Technology\Year 10 Economics and Business\Semester 2\Term 3 - Legal Studies\graphic organiser - appeal.docx

42. High Court of Australia
hear-appeal-on-july goujtv.html
reasons-high-court-can-make-gerard-badenclay-a-murderer-after-special-leave- to-appeal-granted/news-story/8231e72690cee8ba51cf899d12d3cea8