Legal Studies – The Baden-Clay Case
Ms Rynne/ Mr Weir
Weebly Introduction
•
http://year10businesslegalstudies.weebly.com
•
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.
Alison and Gerard Baden-Clay
What do I know about the case?
What do I want to know about the case?
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.
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.
http://www.austlii.edu.au/au/legis/qld/consol_act/cc189994/
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.
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.
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
1992.
(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.
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;
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.
Murder Amendments
Read the following article related the recent amendments to the CC regarding
the law of murder.
http://www.brisbanetimes.com.au/queensland/bill-increases-jail-time-forqueensland-murderers-20120821-24lee.html
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
Prosecutor
Standard of proof
Beyond a reasonable doubt
Consequences of a successful
action
Sentences, fined, community
service, warning, prison
Consequences of unsuccessful Acquitted, and free to leave
action
 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
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
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
Appeals
http://www.couriermail.com.au/news/queensland/states-youngest-murderer-hasjail-sentence-reduced-on-appeal/story-e6freoof-1226120258217
Fact Vs Opinion – Witness Statements
Read the witness statement and note down what parts were fact based and what
parts were opinion based.
Witness: _______________________________
Fact
Opinion
Juries
Please have a look at the Juries Act (1995) QLD
http://www5.austlii.edu.au/au/legis/qld/consol_act/ja199591/
Jury Selection
https://www.youtube.com/watch?v=TSczl1J80ww
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
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.
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)
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?
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.
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.
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?
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?
Interesting Articles on Juries
http://www.news.com.au/technology/online/legal-fraternity-debates-therelevance-of-juries-in-light-of-the-social-media-age/story-fnjwnhzf1227477097204
Article regarding the appeal of Baden-Clay and the directions to the jury
http://www.qt.com.au/news/baden-clay-in-court-to-fight-murderconviction/2731248/
Grounds for 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
Sample divider slide