The Baden-Clay judgement is a worry.

I have read this judgement and it both odd and worrying.

It should be noted firstly, that this judgement does not overturn Baden-Clay’s conviction of murder on any legally technical ground or any aspect of trial procedure. The judges of the court of appeal make no substantial criticism of the trial judge’s summing up and yet conclude that the verdict was incorrect. In short, the they have simply ruled that the jury were not justified in making the finding that they did. This is worry for the whole jury system.

The gist of their argument is that the jury had the option, on the basis of the evidence, of bringing in a verdict of murder or  manslaughter and, given that the forensic evidence did not establish anything in the way of an intention to kill, they could have and should have opted for the lesser finding of manslaughter.

Much of the judgement is devoted to dismissing the notion that Baden-Clay’s lying supports a finding of murder. They appear to accept that the scratches on Baden-Clay’s face were in fact fingernail scratches, explicitly referring to them as such in para 35 and elsewhere – but suggest that he possibly lied about these scratches and everything else, “in panic.” Indeed, the judgement basically consists  of  the judges suggesting an alternative scenario to the killing, which they describe as the “reasonably open hypothesis” that Baden-Clay accidentally killed his wife and then concealed the body and lied about the circumstances of her death out of panic.

There is, of course, an immediate problem with this hypothesis which is that, if Baden-Clay accidentally killed his wife, why would he, when faced with a murder charge, continue to insist on his complete innocence rather than plead to the lesser charge of manslaughter. It is not really conceivable that he was in a state of panic during the entire period of his arrest and trial and, in any case, surely his defence counsel would have advised him to plead to the alternative charge seeing that the circumstantial evidence for murder was so strong.

Oddly, the judges accept that the jury was entitled to conclude that Baden-Clay killed his wife, moved her body, deposited it under a bridge and lied about the scratches on his face. What they refute is that the jury had any right to infer, from his actions and his lies, that he intended to kill her. One of the key elements in reaching this conclusion is that they completely dismiss the motives that were adduced by the prosecution for the crime – i.e. Baden-Clay’s affair with Ms McHugh, his promise to Ms McHugh to end his marriage and his financial difficulties. The reason for rejecting these as valid motives is never explained: the judges simply state that the “pressures on the appellant (do not provide) a motive in any conventional sense of the word”. (my Italics). This defies understanding since evidence of an extramarital affair and the possibility of benefiting financially from a spouse’s death would normally be accepted in any murder trial as valid motives for murder. For some reason, no reference is made in the judgement, to Allison Baden-Clay's $800,000 life insurance policies which her husband stood to receive in the event of her death. 

However, what is most concerning about the judgement is the sense that a lack of evidence for murder should properly lead to a finding of manslaughter. This is based on the erroneous idea that a conviction for manslaughter requires a lower level of evidence than murder. In fact, it requires a higher level because the defence has to show that an act which has quite clearly led to the death of the deceased was not actually intended to bring about that result. In the case of, say, a drunk driver who kills another person on the road, the lack of intention is clear: the deceased was not known to the accused and the death was clearly attributable to recklessness on the part of the accused and an culpable disregard for others’ safety etc.

In a case, however, where the accused shoots someone in the head who then dies, it is going to be difficult for them to convince a jury that they did not intend death to occur. Note that in such cases, while the onus of proof in trials is always on the prosecution, in this sort of situation the prosecution need only rely on the “reasonable person” test. i.e. any reasonable person shooting someone in the head must of necessity reasonably expect it to be fatal.  In this situation, the onus of proof would fall onto the defence to prove that the accused shot someone in the head without intending to kill them - a big ask.

In the Baden-Clay case, such an argument was never presented by the defence because their contention throughout was that Allison Baden-Clay was not killed by her husband but by person or persons unknown.

In dealing with this question of evidence manslaughter, the appeal court judges rely heavily on the fact that there were no detectable physical injuries on Allison Baden-Clay's body. They see this as providing no evidence to indicate “an intent to kill or do grievous bodily harm”.

In fact, I would regard this as evidence to support murder rather than manslaughter because it is almost impossible to conceive a form of manslaughter that does not leave obvious physical injuries. 

Only such unintentional acts as accidental poisoning, or accidental gassing might kill someone without leaving physical damage. Murder, on the other hand, because death is intended from the outset and there is a desire to conceal the act, often involves methods of killing that leave no visible signs. What we know about the death of Allison Baden-Clay is that it happened sometime during the night or early in the morning, that there was no evidence of a fight or struggle, that her body showed no signs of overt violence such as broken bones, head trauma etc, no sounds were heard by neighbours (except for one inconclusive report of a scream) and the children did not wake. The judges seem to feel that this lack of physical evidence in the home and on the body seems to somehow justify a finding of unintentional killing. I would maintain that it suggests exactly the opposite. The state of the evidence does not suggest something like a violent physical altercation that resulted unexpectedly in death: it suggests an act that was carried out in silence and with some level of consideration if not actual planning.

In the end, this judgement does not overturn the conviction on any technical legal grounds. What the appeal judges seem to have done is to re-interpret the evidence and offer a possible alternative explanation for the killing of Allison Baden-Clay and then conclude that, given the inherent ambiguities, the jury should have found for a lesser charge of unlawful killing – i.e. manslaughter. 

This is worrying because overturning the decision of a jury is no light matter. It is not the role of appeal courts to reverse the verdicts of jury trials unless there has been some clear breach of legal principles, misdirection by the trial judge or some complete misunderstanding of some vital piece of evidence. In this case the jury had the choice of bringing in a verdict of murder or manslaughter and in the end unanimously decided on murder because, given the motives that had been suggested and the absence of any evidence for an accidental killing, murder was the more probable scenario.

In this case the court of appeal has set themselves up as an alternative jury and delivered their own verdict.

The irony of this judgement is that, at the end of the day, if there is no evidence that Baden-Clay intentionally killed his wife, and no evidence that he killed her accidentally then he should have been acquitted.

The question of “legalising” drugs

 We frequently hear calls for the legalisation or decriminalisation of drugs. The arguments are usually the same: criminalisation hasn’t worked, the “war on drugs” has failed and we should be considering “harm minimisation” programs rather than arrests and convictions.

Some people advocate simply decriminalising possession for personal use; others believe all drugs should be legally available.

Of course when people talk about legalising drugs, they are talking about the drugs that are currently illegal, not the medicinal pharmaceuticals that we use every day. These drugs are “legal” but not legal in the sense that the advocates of legalisation mean of being able to be manufactured and sold at will.

Ironically, these so-called "legal" drugs are strictly regulated. Drugs must be tested for years and pass rigorous tests before they are allowed to be marketed. When they are sold, unless they are almost completely harmless like aspirin or Paracetamol, they must be prescribed by a doctor and dispensed by a chemist. Those regulations are backed up by a system of legal liability. If a person suffers detrimental side-effects from a drug they can sue. If the chemist dispensed the wrong drug or the wrong dosage, they can be sued; if the doctor prescribed the wrong drug, they can be sued: and if they were not at fault – the drug company itself can be sued, and many have been - in multi-million dollar legal actions.

Of course when people talk about “legalising all drugs” they are not suggesting that pharmaceuticals in general should be freely available for anyone to manufacture, sell and purchase over the counter without any sort of controls.

What they are talking about is legalising so-called recreational drugs and this is what leads us into an absurdity.

Legalising so-called “recreational” drugs, would lead to a ridiculous double standard where, to get a blood-pressure or cholesterol drug, you had to go to a doctor and a chemist, but you could buy drugs with known side-effects and the even the potential for a fatal overdose over the counter - without any need for a prescription or any sort of medical examination. It would also mean that people could manufacture these drugs in any sort of back-yard lab they wished and not be breaking the law. And of course there would be no legal recourse in the case of side-effects or death. There would be grounds to sue either the dealer or the drug manufacturer as they would have no duty-of-care to begin with.

Some advocates suggest that, if recreational drugs were legalised, then major drug companies might start to manufacture them, guaranteeing the quality and ensuring that they were “safe.” This, of course, is a pipe-dream.  The drugs that currently illegal could never obtain certification by the FDA or TGA for public use for the simple reason that they’re NOT safe. There is no safe version of them and even if one could determine a “safe dose” of these drugs, you could not monitor their usage unless you went down the path of having people get a prescription specifying the correct dosage from their GP. However, no GP would ever prescribe these drugs because they have no medical value.

   

The question for a pharmaceutical company that was even thinking about manufacturing these drugs would be how they could protect themselves from the inevitable law-suits when people had adverse reactions. To put it simply, no drug company would be crazy enough to manufacture the drugs that currently illegal because they would be wiped out in litigation that made the billion dollar James Hardie asbestos case look like pocket-money.

Similarly, whereas chemists and supermarkets are happy to have headache tablets, and hay-fever capsules on their shelves, available without prescription, they would never be stupid enough to sell marijuana, MBA, opiates, methamphetamines or anything else, because they would  be sued the first time someone commits suicide, lapses into schizophrenia, turns violent or depressed, or even just become an addict. Not even a corner shop would risk it. Remember that a pub or a bar that serves alcohol to a person who is already intoxicated can be sued if that person subsequently causes a serious car accident so retailers can be held responsible for the results of intoxicants they sell.

The result is that even if you “legalise” illegal drugs, the scenario under which they are made and distributed will be almost exactly the same as what exists now - people growing or synthesising the drugs in a kind of cottage industry and selling them anonymously either in person or over the Net with no legal liability. Drug takers will never have any guarantee as to the purity or safety of these drugs because no legal safety standard or method of regulating their manufacture can ever exist.

So, in the end, removing criminal sanctions against manufacturing, transporting, selling or possessing drugs may stop people going to prison, but it is never going to reduce the instances of death by overdose or suicide, mental illness including depression and schizophrenia, family breakdown, relationship breakdown and career breakdown. The current laws against drug cultivation and synthesis are the same laws that prevent Pfizer, Sigma or Bayer from marketing a drug that causes detrimental side-effects. Similarly, the laws that prevent the distribution and sale of illegal drugs are the same laws that prevent people from selling foods with botulism or toys with toxic chemicals in them. How could we - why would we - exempt one particular set of products from those laws, especially when the harm they do is so manifest, so visible, and greater than all the other dangerous products combined?