R v Baden-Clay
[2014] QSC 154
•15 July 2014
R –v- BADEN CLAY
SUMMING-UP
Charge
1. The Accused, Gerard Robert Baden-Clay, is charged that on or about 19th April, 2012, at Brisbane, he murdered Allison June Baden-Clay.
2. He says he is not guilty.
3. Your role is to determine, on the evidence, whether he is guilty or not guilty.
Summing-up
4. I must now sum up the case to you.
5. You will then retire to consider your verdict.
6. Our functions are different.
7. My task is to ensure that the trial is conducted according to law. As part of that, I will direct you on the law that applies.
8. You must accept the law from me, and apply all directions I give you on matters of law.
9. You are to determine the facts of the case, based on the evidence placed before you in this courtroom.
10. That involves deciding what evidence you accept.
11. You will then apply the law, as I shall explain it to you, to the facts as you find them to be, and in that way arrive at your verdict.
12. I may comment on the evidence if I think it will assist you in considering the facts.
13. While you are bound by directions I give as to the law, you are not obliged to accept any comment I make about the evidence.
14. You should ignore any comment I make on the facts unless it coincides with your own independent view.
15. You are the sole judges of the facts.
Unanimity of verdict
16. You must strive for a unanimous verdict: that is, a verdict on which you all agree, whether guilty or not guilty.
What is evidence
17. You must reach your verdict on the evidence, and only on the evidence.
18. The evidence consists of what the witnesses said, the materials received as exhibits, except for the transcripts of recordings, and the admissions made by the defence in Ex. 179.
19. As I mentioned when the admissions were announced, you should treat those admitted facts as proved.
20. The exhibits will be with you in the jury room.
21. You will have facilities for playing the electronically recorded exhibits and a descriptive list of all exhibits.
22. Documents will be available explaining how to access the interactive video and the timelapse photography.
23. A transcript of the testimony of the witnesses will be with you.
What is not evidence
24. Statements, arguments, questions and comments by the lawyers are not evidence.
25. A lawyer’s question is not evidence.
26. Importantly, it is the answer of the witness that is the evidence; not the question asked.
27. Sometimes a lawyer includes an allegation of fact in a question asked of a witness.
28. No matter how positively that allegation was asserted, it will not form part of the evidence unless the witness agreed with it.
29. Let me give an example divorced from this case.
30. Imagine the lawyer says to a witness: “The toy was blue, wasn’t it?”; and the witness replies, “No, it wasn’t”. Given that answer, there is no evidence that the toy was blue.
31. Even if you do not believe the witness, still there is no evidence that the toy is blue.
32. In general, disbelief of a witness’s answer does not provide evidence of the opposite.
33. To prove that the toy was blue, there would need to be evidence from some other source, such as a photograph or the testimony of another witness.
34. On the other hand, if the witness had instead replied, “yes, it was”, there would be evidence that the toy was blue. In that event, the witness has adopted the suggestion made in the question. To that extent, there would be evidence that the toy was blue.
35. In short, a thing suggested by a lawyer is not evidence of the fact suggested.
36. Other things you have heard are not evidence.
37. The opening of the prosecution case near the outset of the trial was not evidence.
38. The purpose of that address was to outline the evidence the prosecution intended to put before you during the trial.
39. Nor was the opening of the defence case evidence. It, too, foreshadowed the evidence to be adduced when the defence witnesses testified.
40. Nor were the lawyers’ final addresses evidence.
41. They were their arguments, which you may properly take into account when evaluating the evidence. But the extent to which you do so is entirely a matter for you.
42. This summing-up is not evidence, although it does contain reference to some of the evidence.
Deciding the case exclusively upon the evidence
43. If, outside this courtroom, you have heard or read, or otherwise become aware of information about the events with which this trial is concerned, or about the Accused, it is of critical importance that you put any such information completely out of your minds.
44. Have regard only to the testimony, the exhibits and the admissions made here in this courtroom since this trial began.
45. Ensure that no external influence plays a part in your deliberations.
46. This means that you cannot take into account, or allow yourself to be influenced by, information from any source other than that presented in this courtroom during this trial.
47. Let me remind you of what I said about this topic at the outset of the trial.
48. Pay careful attention to the evidence; and ignore anything you may hear or read about the case out of court.
49. If you have heard or read or otherwise become aware of events with which this trial is concerned, or about the Accused, or any witnesses or Allison Baden-Clay (to whom I shall refer as “the deceased”), it is of critical importance that you put any such material out of your minds.
50. Remember, you have taken an oath, or made an affirmation, to decide the charge according to the evidence.
51. The confidence of the parties and the community, in the verdict you eventually announce – whatever that verdict may be – depends upon your faithful performance of that promise.
52. This means that you cannot take into account, or allow yourself to be influenced by, information from any source other than that presented in this courtroom during this trial.
53. You must not inquire, outside the courtroom, about anything that relates to the trial.
54. So you must not use any aid, such as a textbook, to conduct research; and, except in this courtroom, you must not in any way seek or receive information about questions that arise in the trial, or about the Accused, or any witnesses or the deceased: for example, by conducting research using the internet or by communicating with someone by phone, email, or on Twitter, through any blog or website, including social networking websites such as Facebook, LinkedIn or You Tube.
55. Avoid any form of communication that exposes you to the views of others who are not members of your jury.
56. You must not permit somebody else to make inquiries on your behalf.
57. And you must not visit any place connected with the incidents giving rise to the charge.
58. There are at least five reasons why this is so important.
59. First, information in the public arena is not always accurate. Often such information is, at least, misleading. Sometimes, it is just plain wrong. So to have regard to extraneous sources is to run the considerable risk of acting on false information.
60. Secondly, it would be unjust for you to consider information obtained outside the courtroom. The prosecution or defence would not be aware of that. So they could not test the information for accuracy. And because the parties would not know about it, nor could they present arguments to you about such information.
61. Thirdly, so critical is it to a fair trial that the information a jury considers is confined to material put before the jury in the courtroom that our Parliament has made it a criminal offence, punishable by imprisonment, for a juror to inquire about an accused person.
62. Fourthly, if you were to make inquiries outside the courtroom, you would cease to be an impartial juror. You would become an investigator. And you are not detectives. You are judges of the facts.
63. Fifthly, in past cases, a juror has been found to have made private investigations: by using the internet, for example; and that has led to the abandonment of the trial. Sometimes, new trials have been ordered after a successful appeal. Such highly undesirable outcomes imperil community confidence in the institution of trial by jury.
64. In short, there are powerful reasons why you must not receive information outside this courtroom in relation to the issues, or privately attempt to investigate the case, or inquire about the Accused, or any witnesses or the deceased, directly or indirectly.
65. You can read more about that, and other things, in the Guide to Jury Deliberations. Copies of this booklet will be in the jury room for you.
66. You should not discuss the case with anyone except your fellow jurors, and then only when you are together in the jury room. This is because someone else you might speak to who is not a fellow juror could make some observation about the charges or the evidence. Such a comment or opinion might influence your view of the case, if only subconsciously.
67. Yet the comment or opinion can be of no value. That person would not have heard the evidence, nor the lawyers’ addresses, nor my directions on the law.
68. So, confine discussion about the case to your fellow jurors, and then only when you are present together in the jury room.
69. If anyone else, including family and friends, attempts to speak to you about the case, stop them immediately. Should the attempt persist, report that to me as soon as possible; although you should not mention it to any other juror.
70. If any of you learns that an impermissible inquiry has been made by another juror, or that another juror had engaged in discussions about the case outside the jury room, again, you would be duty-bound to bring that to my attention as soon as possible.
71. Similarly, if at any stage material should find its way into the jury room that is not an exhibit in the case, you should notify me immediately.
72. The reason for bringing such things to my attention straight away is that, unless the difficulty is known before the trial finishes, there is no opportunity to attend to the problem and to put matters right if it is possible to do so. If it is not immediately addressed, the problem might cause the trial to miscarry.
73. A report about this trial may appear in newspapers, on radio, on television or in electronic media reports. Pay no regard to those reports. Such reports tend to be confined to some matter thought to be newsworthy. Such a matter may well be of little or no significance in light of the whole of the evidence. Do not let media reports influence your view as to what is important. And do not allow them to lead you into a conversation with a friend or family member about the trial.
Facts and inferences
74. How do you use the testimony of the witnesses and the other evidence?
75. Some evidence may directly prove a thing. A witness who saw, or heard, or did something, may have told you about that.
76. The admissions, documents, photographs, recordings of conversations and other things put into evidence as exhibits may also tend directly to prove facts.
77. But, in addition to facts directly proved by the evidence, you may also draw inferences – that is, deductions or conclusions - from facts which you find to be established by the evidence.
78. If you are satisfied that a certain thing happened, it may be right to infer that something else has occurred. That will be the process of drawing an inference from facts. For example, suppose that when you went to sleep it had not been raining and when you woke up, you saw rainwater around. The inference – the deduction, the conclusion - would be that it had rained while you were asleep.
79. However, you may only draw reasonable inferences.
80. And your inferences must be based on facts proved by the evidence.
81. There must be a logical and rational connection between the facts you find and your deductions or conclusions.
82. You are not to indulge in intuition or in guessing.
83. Importantly, if, in light of all of the evidence, there is an inference reasonably open which is adverse to the accused – that is, one pointing to guilt – and an inference in his favour – that is, one consistent with innocence – you may only draw an inference of guilt if it so overcomes any other possible inference as to leave no reasonable doubt in your minds.
Evidence may be accepted in whole, in part, or not at all
84. It is for you to decide whether you accept the whole of what a witness says, or only part of it, or none of it.
85. You may accept or reject such parts of the evidence as you think fit.
86. It is for you to judge whether a witness is telling the truth and correctly recalls the facts about which he or she has testified.
Assessing reliability
87. Matters which will concern you are the credibility of the witnesses, and the reliability of their evidence.
88. Credibility concerns honesty. Reliability may be different. A witness may be honest enough but have a poor memory or otherwise be mistaken.
89. Many factors may be considered in deciding what evidence you accept.
90. I will mention some considerations that may assist you.
91. You have seen how the witnesses presented when answering questions. Bear in mind, however, that many witnesses are not used to giving evidence and may find the courtroom environment distracting.
92. Consider the likelihood of the witness's account. Does the evidence of a particular witness seem reliable when compared with other evidence you accept?
93. Consider the ability and the opportunity the witness had to see, hear, or know the things that the witness has testified about.
94. A matter for consideration in assessing the reliability of testimony is whether it differs from what has been said by the witness on another occasion.
95. Recollection may be unreliable, even where the witnesses presented as honest and confident of their recollections.
96. Honesty does not equate to reliability.
97. A witness’s self-confidence in the accuracy of the witness’s recollection is no sure guide to reliability either.
98. There are many reasons why the risk of unreliability should be considered when evaluating testimony.
99. Let me mention some.
100. In general, powers of observation, and of retention in memory of what is seen or heard, are fragile.
101. Minds do not function like recording devices.
102. An observation of something said or done might be mistaken.
103. Memory is also fallible. It fades with time. And it is exposed to distortion for other reasons.
104. Memory can be affected by the stresses of the event, particularly when the situation is emotionally charged, or by other distractions.
105. There is also the risk of memory distortion through susceptibility to the suggestions of other people and in like ways. As examples, speaking generally, some people can:
• come to believe that they have said things which they did not say but afterwards wish they had said; • imagine that they have seen or heard things because friends or associates have suggested such ideas; • persuade themselves that something will have happened because they imagine that it is likely that it did; • be influenced, albeit subconsciously, by things created by others, such as photographs and records. 106. In this case, there is the additional consideration that the witnesses often spoke of events more than two years ago.
107. There is a need for care in evaluating the reliability of the testimony of witnesses whose recollections are two years old, even where the witness had, as it is said, refreshed recollection by re-reading, shortly before giving evidence, a statement given to police in April 2012.
108. That is especially so for those witnesses who testified to something which, when it happened, was ordinary: such as sounds in the night now recollected as screams, thuds, and car doors closing.
109. People do not always closely observe sights and sounds, let alone try to commit such impressions to memory.
110. And correctly assessing the source, nature or direction of a sound at night must be at least difficult.
111. You may well think that other considerations assist in your evaluation of the reliability of the witnesses, generally, as well as in respect of particular testimony.
112. It is, as I have said, up to you how you assess the evidence and what weight, if any, you give to a witness's testimony or to an exhibit.
Burden of proof
113. The burden rests on the prosecution to prove the guilt of the Accused.
114. There is no burden on him to establish any fact, let alone his innocence.
115. He is presumed to be innocent.
116. He may be convicted only if the prosecution establishes that he is guilty of the offence in question or of some other offence of which he may be convicted on the indictment; and you will be directed later on as to this.
Standard of proof
117. For the prosecution to discharge its burden of proving the guilt of the Accused, it is required to prove beyond reasonable doubt that he is guilty.
118. This means that, in order to convict, you must be satisfied, beyond reasonable doubt, of the elements that make up the offence charged.
119. I will explain these elements later.
120. It is for you to decide whether you are satisfied, beyond reasonable doubt, that the prosecution has proved the elements of the offence.
121. If you are left with a reasonable doubt about guilt, your duty is to acquit: that is, to find the Accused not guilty.
122. If you are not left with any such doubt, your duty is to convict: that is, to find him guilty.
Circumstantial evidence
123. As no one claims to have seen the Accused kill his wife, this is a circumstantial case.
124. Circumstantial evidence is evidence of circumstances that can be relied upon not as proving a fact directly but instead as pointing to its existence.
125. It differs from direct evidence, which tends to prove a fact directly: typically, when a witness testifies about something which that witness saw or heard.
126. Both direct and circumstantial evidence are to be considered.
127. It is not necessary that facts be proved by direct evidence.
128. They may be proved by circumstantial evidence alone, by direct evidence alone, or by a combination of direct and circumstantial: that is, both direct and circumstantial evidence are acceptable proof of facts.
129. So you should consider all the evidence, including circumstantial evidence.
130. Importantly, to bring in a verdict of guilty based entirely, or substantially, on circumstantial evidence, guilt should not only be a rational inference: it must be the only rational inference that could be drawn from the circumstances.
131. If there is any reasonable possibility consistent with innocence, it is your duty to find the Accused not guilty.
132. This follows from the requirement that guilt must be established beyond reasonable doubt.
No sympathy or prejudice influential
133. You should dismiss all feelings of sympathy or prejudice, whether it be sympathy for, or prejudice against, the Accused or anyone else.
134. No such emotion has any part to play in your decision.
135. You must approach your duty dispassionately, deciding the facts upon the evidence.
Accused giving evidence
136. The Accused was not obliged to give evidence or to call other people to give evidence in his defence, or otherwise produce evidence.
137. That he has done so does not mean that he has assumed any responsibility to prove his innocence.
138. The burden of proof has not shifted to him.
139. His evidence, and that of the other witnesses called for the defence, is added to the evidence called for the prosecution.
140. As I have said, the prosecution has the burden of proving the elements of the offence in question, beyond reasonable doubt.
141. And it is upon the whole of the evidence that you must be satisfied, beyond reasonable doubt, that the prosecution has proved the case before the Accused may be convicted.
142. It is not a matter of making a choice between the evidence of prosecution witnesses and that of the Accused and the other defence witnesses.
143. You do not have to believe that the Accused told you the truth before he is entitled to be found not guilty.
144. Where, as here, there is defence evidence, generally speaking, one of three possible results will follow:
• The jury may think the defence evidence is credible and reliable, and that it provides a satisfying answer to the prosecution case. If so, the verdict will be not guilty; or
• The jury may think that, although the defence evidence was not convincing, it raises a reasonable doubt about whether the elements of the offence under consideration have been proved. If so, the verdict will be not guilty; or
• The jury may think that defence evidence, or some of it, should not be accepted. 145. If you consider that evidence of the Accused or that of other defence witnesses should not be accepted, be careful not to jump automatically from such a view to a finding of guilt.
146. Speaking generally, and subject to what will be said about lies by the Accused in testifying, if you find defence evidence unconvincing, set it to one side, go back to the rest of the evidence, and ask yourself whether, on a consideration of such evidence as you do accept, you are satisfied, beyond reasonable doubt, that the prosecution has proved the elements of the offence in question.
Declining a formal statement
147. On legal advice, he says, the Accused declined to make a formal statement to the police.
148. As you know, he had spoken to police officers in recorded conversations, and did so more than once.
149. His decision not to provide a statement is not evidence against him.
150. He was entitled to adopt that course.
151. It would be quite wrong to reason that, because he declined to provide a statement, he must have something to hide or be guilty of some offence.
152. Therefore, you cannot use against him the fact that he did not give the police a statement.
Elements of offences
153. A person who unlawfully kills another is guilty of murder or manslaughter.
| Murder | ||||
| 154. | A person who unlawfully kills another, intending to cause that person’s death or to cause grievous bodily harm, is guilty of murder. | |||
| 155. | Grievous bodily harm includes any bodily injury of such a nature that, if left untreated, would be likely to endanger life or likely to cause permanent injury to health. | |||
| 156. | Any person who causes the death of another, directly or indirectly, is deemed to have killed that person. | |||
| 157. | And a person causes death if he does an act that is a substantial or significant cause of the death. | |||
| 158. | So, before you may convict the Accused of murder, you must be satisfied, beyond reasonable doubt, of two distinct matters: | |||
| ||||
| 159. | On the prosecution case, the Accused is guilty of murder on the basis that he killed his wife, and did so intending to kill or at least to cause her some grievous bodily harm. | |||
| 160. | The essence of the defence case is that: | |||
|
i. drowned; or
ii. fallen from a height to her death or to cause drowning; or
iii. died from alcohol and/Sertraline toxicity; or
iv. suffered the effects of serotonin syndrome which led to her drowning or falling from a height to her death.
Manslaughter
161. The indictment charges murder.
162. An alternative is, however, open: manslaughter.
163. Manslaughter is the unlawful killing of a human being in circumstances not amounting to murder.
164. Were you to find the Accused not guilty of murder, you would consider whether he is guilty or not guilty of manslaughter.
165. To establish manslaughter, the prosecution must prove, beyond reasonable doubt, that the Accused unlawfully killed his wife.
166. But intention to harm is not an element of manslaughter.
Alternative
167. Murder and manslaughter are alternatives. So you may not find the Accused guilty of both.
168. You may wish to consider first murder, which is the more serious.
169. If you find the Accused guilty of murder, you do not need to consider manslaughter.
170. But if you find the Accused not guilty of murder, then consider the alternative of manslaughter.
171. If your verdict is guilty of murder, you will not be asked to return a verdict on manslaughter.
172. As you know, neither the prosecution nor the defence contends for manslaughter.
173. In these circumstances, you may wonder why I advert to that prospect at all.
174. The answer is: the law obliges me to do so.
175. That I mention the manslaughter alternative does not mean that I have a view about such a verdict.
| Motive | |
| 176. | Motive is not an element of murder or manslaughter. |
| 177. | The motive by which a person is induced to do an act or to form an intention is immaterial so far as regards criminal responsibility. |
| 178. | In a criminal trial, an absence of evidence of motive is a circumstance in favour of an accused, to be given such weight as the jury deems proper. |
| 179. | But proof of motive is never indispensible to conviction. |
| 180. | Sometimes the motive, if any, will never be known to anyone but the offender, which shows why it would often be unrealistic to require the prosecution to prove a motive. And the law does not impose such an obligation. |
| 181. | So, here, the prosecution does not have to establish a possible motive for the Accused to have murdered his wife. |
Caution about things said by deceased
182. Our law allows evidence to be given of things said by someone who has since died.
183. Because of this law, evidence has been put before you, through the testimony of others, of what Allison Baden-Clay said.
184. I must warn you about risks of unreliability of things said to have been spoken by her.
185. Evidence of such out-of-court statements may be unreliable, for number of reasons.
186. What she said comes to you second hand, through the testimony of others: mostly family and friends.
187. There is a risk that the witness’s testimony is not a reliable account of what happened.
188. Errors can occur when the original statement is made, when it is heard, and when it is recalled and repeated in court.
189. So, even if the witness’s evidence was given honestly, it might not be an accurate representation of what happened.
190. The statement of the source reaches you through the perceptions, interpretations and recollections of the witness, not through the recollections of the deceased.
191. A witness who tells you of what somebody else has said may have misheard or misinterpreted what was said.
192. Or the witness might not recall things accurately because of faulty memory or for other reasons.
193. Moreover, the statement made by the deceased to the witness might not have been accurate.
194. The statements said to have been made to the witness were not made on oath.
195. So, in saying these things to the witness, the deceased was not under the same imperative to speak truthfully as if here in court testifying.
196. No less importantly, what she may have told the witness is untested and untestable: that is, it cannot be examined to ascertain its reliability by the usual means for testing the honesty and reliability of witnesses: by cross-examination and the opportunity otherwise ordinarily given to a jury to see and hear the source of the information.
197. So there is need for caution:
•
in deciding whether to accept as reliable things relayed to you as having been said by the deceased;
and, if you accept it,
• in forming a view about the weight to be given to this information.
Interviews with Baden-Clay children
198. Our law allows recordings of interviews given by children to be received as evidence.
199. Put before you in that way were the six interviews with the three Baden-Clay children.
200. They, too, are evidence.
201. The police spoke to Hannah, Sarah and Ella on 20 April and 27 June 2012.
202. None spoke of hearing the night before:
• a fight between their parents; or • a car leave or return to the house. 203. The audio-visual recordings of the interviews with the children, and the transcripts of what they said, will be with you in the jury room.
204. Taking and presenting evidence of children in this way is now routine practice.
205. So you must not draw any inference adverse to the Accused merely because that routine measure was adopted.
206. The children’s evidence is not to be given any greater or lesser weight because it is put before you in that routine fashion. And its probative value is not increased or decreased because it comes before you in that way.
207. You will not have the evidence of almost all the other witnesses in an electronically recorded form.
208. So be careful not to place undue weight on the children’s evidence because you are able hear it on a number of occasions, if you choose to do so.
209. In estimating the weight, if any, to be attached to what the children say, regard is to be had to all the circumstances from which an inference can reasonably be drawn as to the accuracy or otherwise of the statement in question, including:
•
whether or not the statement was made, or the information recorded in it was supplied, contemporaneously with the occurrence or existence of the facts to which the statement or information relates; and
•
the question whether or not the maker of the statement, or the supplier of the information recorded in it, had any incentive to conceal or misrepresent the facts.
Transcripts of recordings
210. Transcripts were provided for your assistance when recordings were played.
211. The transcripts will be with you in the jury room.
212. May I remind you that such a transcript is not evidence.
213. It is merely an aid to your understanding of the evidence.
214. The evidence is what you see and hear – or, for an audio recording, what you hear - when the recording is played.
215. A transcript is someone’s attempt to render into print the sounds that person believes that he, or she, has heard when the tape was played. That person may be mistaken.
216. Do not substitute what you read in the transcript for what you see and hear when the recordings are played.
Transcript of evidence
217. You will have a transcript of the testimony of the witnesses.
218. The transcript is made available to help you to remember the evidence.
219. The transcript itself is not evidence.
220. Do not regard the transcript as infallible.
221. Sometimes, the transcribers make mistakes or cannot hear what the witness has said.
222. The evidence is what you recall it to be.
223. If you see something in the transcript which you regard as wrong, it is your recollection of what the witness said that is decisive, not the transcript.
Jury judges facts
224. In a summing-up, it is neither practicable nor desirable to canvass all the detail of the evidence.
225. It is, therefore, quite likely that I will not mention aspects of the evidence that may seem to you significant.
226. If I do not touch upon such information, that does not mean that it is unimportant.
227. So also, that I mention particular evidence does not mean that it is more important than other evidence not referred to by me.
228. Act on your view of what evidence matters, whether I mention it or not.
229. Remember: you are the judges of the facts.
| View | |
| 230. | Let me remind you of the limited use to be made of the view of the house and the area near the Kholo Creek bridge. |
| 231. | Those views may be used to understand and to apply the evidence, especially concerning those two scenes. |
| 232. | What you observed during the views is not evidence. |
| 233. | You should not substitute what you saw at the views for the evidence. |
| 234. | Moreover, as you know, in particular from the testimony of Det Snr Constable McLeod, since April 2012, there have been changes to both the bridge area and the residence and its surrounds. |
Police interviews
235. I turn to discrete topics related to the police interviews.
236. These concern things said:
• in the Accused’s presence but not by him; •
by him which may tend to exculpate him: that is, are consistent with innocence;
• by him which may tend to incriminate him: that is, are consistent with guilt. 237. Statements by the Accused in the third category fall into two classes:
• truthful admissions of facts that may tend to incriminate; and •
lies that may tend to incriminate because they reveal a knowledge of the death of the deceased and were told because the Accused believed that the truth of the matter would incriminate him.
Comments made to the Accused
238. During the police interviews, the Accused was confronted with things said by others: for example, in a police interview, Snr Sgt Curtis raised the notion that the deceased was working in his business with Ms McHugh when his wife learned of the affairs. He denied that.
239. A statement made to, or in the presence of, the Accused is not, of itself, evidence of the facts stated.
240. Without more, such a statement cannot be used against him.
241. However, if the Accused, by words or conduct, acknowledged the truth of the facts stated then, to that extent, you may take the statement into consideration.
242. If he did not distinctly acknowledge the accuracy of what was stated, disregard the statement.
243. In short, things said in the Accused’s presence cannot be used against him unless, and then only to the extent that, he accepted them as true.
244. One example of a suggestion not adopted is that in the interview with Curtis was an inquiry whether he and his wife were estranged. He answered: “No”.
Statements by the Accused
Exculpatory assertions
245. Things said by the Accused to the police tending to exculpate him – that is, are consistent with his innocence – should be considered.
246. An example is his assertion that he slept through the night of 19/20 April.
247. What the Accused said to the police forms part of the evidence for your consideration.
248. You are not obliged to act on assertions the Accused made in his own favour.
249. What he stated during the police interviews was not said on oath.
250. And, unlike his testimony before you, such statements have not been tested by cross-examination in court.
251. You are not obliged to attach the same weight to all the statements the Accused made in the police interviews.
252. The weight, if any, to be accorded his exculpatory statements is, as with the rest of the evidence, a matter for you.
Inculpatory Assertions
253. The prosecution relies on things said by the Accused to police as admissions of facts tending to inculpate him in the death of his wife.
254. An example of what the prosecution contends is an admission with potential to incriminate is that the Accused says that he was at home on the night of 19/20 April when his wife was there too, which would mean that he had the opportunity to murder her.
255. In order to rely on any statement that the Accused made to the police as an admission that may tend to incriminate him, you must first be persuaded that what he said in that respect was truthful.
| Lies | |
| 256. | The next aspect of the Accused’s statements relates to the prosecution contention that he told the police lies. |
| 257. | You will make up your own minds whether he told falsehoods to the police and, if so, whether he did so deliberately. |
| 258. | It is, however, necessary to approach, with considerable caution, the use you might make of a conclusion, were you to reach it, that he told lies to the police. |
| 259. | More will be said later on about your approach to suggested lies – not only to the police but also when the Accused gave evidence before you from the witness box. |
Expert Evidence
260. Experts have given evidence: doctors, scientists, an engineer and a psychologist.
261. An expert witness is a person who has specialised knowledge based on training, study or experience.
262. Unlike other witnesses, a witness with such specialised knowledge may express an opinion on relevant matters within his or her area of expertise.
263. Other witnesses may testify only as to facts: typically, what they saw or heard, and are not permitted to express opinions.
264. Expert evidence is, like all evidence, for you to evaluate.
265. You should also examine the quality of the reasons offered for an opinion, and the facts that support that opinion.
266. A witness’s opinion is only valuable if the facts on which it is based are true.
267. It is for you to consider the quality and weight of expert as well as non-expert evidence.
268. If you consider the expert evidence reliable, you may accept it.
269. If, having given the matter careful consideration, you are not satisfied by the expert evidence, you would not act on it.
270. The decision is yours as to what evidence you accept or reject, whether the evidence comes from an expert or anyone else.
Finding the deceased
271. You may think that the evidence discloses the facts, matters and circumstances about to be mentioned.
272. On 30 April 2012, the decomposed body of the deceased was found beneath the Kholo Creek Bridge.
273. The deceased had lived with her husband, the Accused, and their three children in a rented house at 593 Brookfield Road, Brookfield.
274. That house is about 13 kilometres by road from the Kholo Creek bridge, taking the shortest route.
275. Depending on traffic conditions, it takes about 13-20 minutes to drive to the bridge from the Baden-Clay house at 593 Brookfield Road.
276. The body was lying in soft, water-logged mud on the eastern bank of the creek, underneath the bridge, on the right side, facing towards the bank.
277. Hands and arms were up in front of the head.
278. The deceased was wearing ¾, or tracksuit, pants, socks with white sneakers, a singlet top, a bra, underwear and a jumper.
279. The jumper was wrapped around her neck, with her hands inside the sleeves.
280. Most of the jumper was inside out.
281. There were two rings on the wedding ring finger.
282. Although the deceased usually took her mobile phone with her when out on a morning walk, that phone was not with her.
283. It has never been found.
284. The body was on a natural plateau below the creek high water mark.
285. This plateau was above a steep slope down to the creek and about two metres beneath the cement foundation for pillars that support the bridge.
286. There were no obvious signs of disturbance of nearby mud or vegetation, except where a police scientific officer had fallen.
287. Botanical material such as twigs and leaves was taken from the deceased’s hair.
| Dr Milne | ||||||||||||||||
| 288. | The forensic pathologist, Dr Milne, conducted the post-mortem examination. | |||||||||||||||
| 289. | He testified, in summary, as follows. | |||||||||||||||
| 290. | There was significant decomposition of the body. | |||||||||||||||
| 291. | The upper part revealed mummification. That condition occurs when the affected area is exposed to a dry environment. | |||||||||||||||
| 292. | Putrefaction was apparent in the region of the body that had been in contact with the moist mud. | |||||||||||||||
| 293. | The extent of the decomposition was consistent with death having occurred about 11 days earlier – which is when the deceased was last seen alive. | |||||||||||||||
| 294. | Hypostasis – that is, settling of the blood through gravity – appeared on the lower, right side of the body. | |||||||||||||||
| 295. | That is consistent with the body having come to the position in which it was eventually found within a matter of hours of death, and then remaining in that position. | |||||||||||||||
| 296. | The putrefaction and mummification were also consistent with the body having been positioned soon after death where it was found underneath the bridge. | |||||||||||||||
| 297. | The jumper could have been moved to the position around the head in which it was found before or after death. | |||||||||||||||
| 298. | If the body had been in tidal water, tidal movement could have moved it to the position in which the jumper was discovered. | |||||||||||||||
| 299. | Examination revealed no injuries to the hands. | |||||||||||||||
| 300. | Fingernails were detached. Four were found within the jumper. | |||||||||||||||
| 301. | There was no evidence of any bone fracture, including the hyoid bone. Nor was any haemorrhage seen around the hyoid bone. | |||||||||||||||
| 302. | There was a probable injury on the internal lining of the left front of the chest wall, associated with ribs 4-6. | |||||||||||||||
| 303. | This was probably a bruise. | |||||||||||||||
| 304. | Because of the significant decomposition, the possibility that that injury occurred after death could not be excluded. | |||||||||||||||
| 305. | There was a fairly small fracture of the lower left eye tooth. A portion of that tooth was missing. That chipped tooth appearance could not be aged. | |||||||||||||||
| 306. | There were no signs of trauma to the teeth or to the hard tissues of the jaw. | |||||||||||||||
| 307. | No other abnormalities were detected. | |||||||||||||||
| 308. | There was no sign of sexual assault. | |||||||||||||||
| 309. | There was no injury to suggest that the body had brushed up against sticks, rocks or other foreign objects in moving water. | |||||||||||||||
| 310. | A small amount of blood extracted from the liver was sent for toxicology testing. | |||||||||||||||
| 311. | Liver tissue and stomach contents were also analysed. | |||||||||||||||
| 312. | Zoloft is a brand name for the anti-depressant drug Sertraline. | |||||||||||||||
| 313. | Sertraline and its metabolite, Desmethylsertraline, were detected in the blood taken from the liver, in the liver itself and in stomach contents. | |||||||||||||||
| 314. | The level of Sertraline and its metabolite in the blood is higher than would be expected with normal therapeutic dosing. But decomposition can alter levels after death. | |||||||||||||||
| 315. | Alcohol was found in the blood. The concentration, put in familiar terms, was .095. | |||||||||||||||
| 316. | Much, indeed potentially all, of that alcohol could have been produced within the body itself during post-mortem decomposition. | |||||||||||||||
| 317. | Because of the significant extent of the decomposition of the body, Dr Milne: | |||||||||||||||
| ||||||||||||||||
| 318. | The deceased did not die of natural causes, for three reasons: | |||||||||||||||
| ||||||||||||||||
| 319. | Dr Milne considers that alcohol and/or Sertraline toxicity is an unlikely cause of death but because of the decomposition cannot altogether exclude such a possibility. | |||||||||||||||
| 320. | Dr Milne also said that: | |||||||||||||||
| ||||||||||||||||
| Mr Giles | ||||||||||||||||
| 321. | Dr Milne’s view that, soon after death, the body was deposited where it was found underneath Kholo Bridge is supported by other evidence. | |||||||||||||||
| 322. | The hydraulic engineer, Martin Giles, considered data, including flood and flow levels in Kholo Creek, rainfall and data in the catchment area and other information, including personal observations of the bridge area. | |||||||||||||||
| 323. | Mr Giles concluded that the water in the creek would not have been enough to move the body from elsewhere to its location under the bridge. | |||||||||||||||
| 324. | He reasons that: | |||||||||||||||
|
Dr Wallman
325. Dr James Wallman has been a forensic entomologist since the early 1990s.
326. He was given insect specimens to see if he could state a minimum timeframe between death and collection of the specimens on the afternoon of 30 April 2012.
327. He was also asked to consider whether the body had been submerged in Kholo Creek.
328. According to Dr Wallman, what he observed could be consistent with the deceased having been dead for 11 days.
329. As an entomologist examining the insect specimens received, he could not say whether the body had been submerged in water and, if so, for how long.
| Dr John | |
| 330. | Dr Jacob John is a retired professor who looks after the diatom collection that he had made over 40 years. |
| 331. | He gave this evidence. |
| 332. | Diatoms are microscopic algae found in water. They are predominately made of silica. So the diatom does not decompose. |
| 333. | He was given water samples from Kholo Creek. |
| 334. | He also received a piece of bone of the deceased with marrow in tact and some liver tissue. |
| 335. | In a typical drowning, a person will swallow “heaps and heaps” of water. |
| 336. | Water rushes into the lungs and ruptures the lung tissue. |
| 337. | After that, the water may be transported through the lymphatic system to other internal organs such as liver, kidney and bone marrow; and remain there. |
| 338. | Dr John conducted a microscopic examination. |
| 339. | He did not find any diatoms in the liver or in the bone marrow. |
| 340. | That is not what would have been expected had the deceased died by drowning. |
Amanda Reeves
341. Amanda Reeves is a forensic scientist.
342. She testified that:
•
the nails of the right-hand of the deceased were profiled. An incomplete DNA profile was obtained from one of them. It was unsuitable for meaningful comparison. Attempts to obtain DNA profiles from the remaining four samples were unsuccessful;
•
DNA breaks down over time, depending upon the storage and environmental conditions. Body decomposition is a major factor. During decomposition, chemicals are produced that interfere with the ability to see a DNA profile;
•
as to the left hand, there were five fingernails. Swabs of each nail were submitted for DNA analysis. The profile of sample 4 displayed very low level indications of the possible presence of DNA from a second contributor. But these levels were below the reportable threshold of the laboratory; and so it is a possibility that there was not a second contributor;
• the swab taken from the Captiva matched the DNA profile of the deceased; •
scrapings were taken from the fingernails of the Accused. DNA profiles were obtained from them. There were very low level indications of the possible presence of DNA from an additional contributor. They, however, were also below the laboratory’s reporting thresholds.
Professor Drummer
343. Professor Olaf Drummer is a forensic pharmacologist and a toxicologist who has been involved in the interpretation of the biological effects of drugs and poisons for over 25 years.
344. Professor Drummer spoke of the levels of Sertraline - that is, Zoloft - and its metabolite in blood and liver tissue.
345. He said that Zoloft can be used for mood swings related to menstrual tension.
346. He described the therapeutic range as being between a normal starting dose of 50mg and up to 200mg daily, depending on patient mood and response.
347. Asked whether Sertraline is a toxic substance, he answered: “Not particularly so”.
348. Professor Drummer said that no records he has considered show any case where an overdose of Sertraline by itself has caused death.
349. He was asked about the blood alcohol reading of .095.
350. Professor Drummer said that such a concentration can be produced by fermentation when a body is exposed to the elements over days.
351. He described the process in this way.
352. Bacteria form alcohol by a fermentation process.
353. It is quite common to find alcohol concentrations in a body that has been exposed to the environment for some days after death.
354. According to Professor Drummer, the analysis of the stomach contents for Sertraline shows that:
• there was no recent – that is, hours before her death – ingestion of a large number of tablets; • moreover, the small amount of Sertraline present – only a tiny fraction of one tablet – could be the result of some remnant from a previous, normal dose. 355. If an overdose had occurred, Professor Drummer would have expected much higher levels in the liver.
356. Professor Drummer was asked about serotonin syndrome. He said:
•
that is a situation where excessive levels of serotonin are in the brain, as where Sertraline elevates serotonin levels to a large extent;
•
the condition can cause confusion, anxiety, agitation and, in severe cases, delirium;
•
Sertraline can cause the condition; but usually only when taken in overdose or in combination with other drugs;
•
Serotonin syndrome would not be expected in people taking the normal prescribed dose of Sertraline.
357. Professor Drummer concluded that the levels of the drug do not suggest that Sertraline made any contribution to death.
Dr Robertson
358. Dr Michael Robertson has been a forensic toxicologist for about 20 years.
359. He conducted a review based on documents concerning the post-mortem results.
360. He spoke about levels of Sertraline found in the body of the deceased.
361. Based on studies of post-mortem redistribution of the drug, he thought that what was found in the liver blood was considerably higher than what the studies had indicated over the period examined in the studies: 28 - 48 hours or so.
362. Possible explanations are:
• ingestion of more than 100mg daily on the day or days prior to death; or • an unusual amount of post-mortem redistribution; or • which is less likely, some level of contamination during the post-mortem examination itself. 363. Dr Robertson said that serotonin syndrome:
• occurs where serotonin is at too high a level in the brain; • can cause confusion, agitation, unusual behaviour and incoordination. 364. Speaking of the possible risk of suicide, Dr Robertson said:
• individuals on anti-depressant medication have a higher risk of suicide; • suicidal ideation is a possible effect of selective serotonin reuptake inhibitors, which is “more an issue” in the first four or five weeks after starting on such medication. 365. As to what the post-mortem results reveal concerning the deceased’s ingestion of Sertraline, Dr Robertson:
•
accepted that there had not been a recent ingestion of a large amount of the drug;
•
said that, because of the decomposition, it is “absolutely” possible that the deceased may have had no Sertraline at all in her stomach when she died;
•
having used the drug since 2003, she would have a tolerance to it, which, over time, would reduce residual adverse effects.
366. Dr Robertson also testified that:
•
Sertraline is a drug of low toxicity that is not often reported to be associated with drug-related deaths alone;
•
the levels of Sertraline in the blood were not consistent with the majority of Sertraline-related deaths;
•
the levels of Sertraline in the liver tissue were not consistent with what might be expected following an acute overdose;
•
the absence of significant amounts of Sertraline in the stomach suggests that an acute administration leading to death shortly after ingestion is unlikely.
Dr Guymer
367. Dr Gordon Guymer has worked as a botanist since 1980. He is the director of the Queensland Herbarium.
368. One of his fields of expertise is the identification of plants.
369. Dr Guymer examined plant material and identified six species.
370. Four of those species had been entwined in the hair of the deceased.
371. The common names of those four are crepe myrtle, cat’s claw creeper, fishbone fern and eucalypt leaves.
372. The other two species associated with the body but not entwined in her hair were Lilly Pilly and Chinese elm.
373. According to Dr Guymer:
• the crepe myrtle leaves entwined in the deceased’s hair were fallen leaves; • one of the cat’s claw creeper leaves (that depicted in Ex. 138) was a detached leaf that had been pulled from a live plant after the claw caught on something: so it was not a fallen leaf; • he was unable to say whether the other three cat’s claw creeper leaves were connected to the creeper or else loose before becoming entwined in the deceased’s hair; • of the fishbone fern samples, some were fallen and some may have been fresh; • the parts of eucalypt leaf were fallen leaves. 374. On Friday 13 July, Dr Guymer conducted a botanical survey at the Kholo Creek Bridge area.
375. Chinese elm was present. In the distance were some eucalypts.
376. They, however, were the only two species at that location of the six taken from the body.
377. At the Baden-Clay home at 593 Brookfield Road, a plant survey on 13 July 2012 revealed the presence of crepe myrtle, cat’s claw creeper, fishbone fern and Lilly Pilly.
378. At the back of the house were fishbone fern, crepe myrtle, cat’s claw creeper, a Chinese elm and not far from the boundary a eucalyptus tree.
379. Dr Guymer conducted a botanical survey along Brookfield Road within 800m of 593 Brookfield Road, surveying the area between the edge of the road and the edge of property.
380. He then surveyed Brookfield Road via Rafting Ground Road to Moggill Road to Mt Crosby Road and on to the Kholo Creek bridge – a distance of 13.6kms.
381. There was crepe myrtle in Rafting Ground Road at one address, and at five addresses on Moggill Road.
382. He saw one instance of cat’s claw on Moggill Road: at Pinjarra Hills in a patch of bush along the fence line.
383. He saw some fishbone fern at 36 Boscombe Road and along Rafting Ground Road at a place he identified. And he saw some clumps of fishbone fern between those two addresses.
384. In relation to the 800m along Brookfield Road, he observed no cat’s claw creeper or Lilly Pilly.
| Affair | |
| 385. | Toni McHugh gave this evidence. |
| 386. | She began an affair with the Accused in August 2008. |
| 387. | The relationship was up and down all the time, year after year, with discussions about their having a future together. |
| 388. | At one stage, the Accused told Ms McHugh that he was fearful that the deceased would not be able to manage a separation or a divorce, and he was concerned about the impact of that on his girls. |
| 389. | After the deceased learned of the affair, she remonstrated with the Accused. |
| 390. | He then informed Ms McHugh that their relationship was over. |
| 391. | She had to leave her employment at Century 21 Westside. |
| 392. | But the affair was not over. |
| 393. | Just before Christmas 2011, the Accused contacted Ms McHugh. They met. |
| 394. | He said he wasn’t ready to leave his wife but that he was going to leave her. |
| 395. | He also told Ms McHugh that he loved her, did want to come to her unconditionally, and wanted to be out of his marriage. |
| 396. | On her account, the affair resumed. |
| 397. | At some stage in 2012, the Accused suggested to Ms McHugh that they not meet again until he had left his wife. |
| 398. | But he did say that he would be leaving his wife by the first of July. |
| 399. | Some email correspondence between the Accused and Ms McHugh is in evidence: see Exs. 61-64. |
| 400. | Ms McHugh had had previous assurances from the Accused about being together that had come to nothing. She did not believe the latest of them. |
| 401. | The email referring to 1 July was the first time that the Accused had nominated, in writing, a date by which he would be with Ms McHugh. |
| 402. | By mid-April 2012, they were in fairly regular contact. |
| 403. | On the afternoon of Thursday, 19 April, the two of them spoke by phone. |
| 404. | Call charge records reveal that they spoke for more than 29 minutes between 5.03pm and 5.40pm. |
| 405. | He was in the supermarket getting food for dinner at his parents’ house with his children. |
| 406. | She told him that she was looking forward to attending the real estate conference the next day. |
| 407. | He said that there was something he had to tell her: two of his staff members were attending. |
| 408. | She realised that they would be the deceased and Kate Rankin. |
| 409. | According to Ms McHugh, she “lost it”. She asked the Accused when he was going to tell her. |
| 410. | She went into a rage as the conversation proceeded. |
| 411. | She told the Accused that he needed to tell his wife “what is going on” because it was not fair to either of them to be in the same room together. |
| 412. | It was not an option for her not to attend the conference because she had just started a new job. |
| 413. | Ms McHugh also told the Accused that she needed to know what was happening: “What is your plan”, asking him “what are you going to do to change things for us to be able to be together”. |
| 414. | His response was to say that he was thinking of selling the business after he had left his wife. |
| 415. | Ms McHugh asked to meet with him. She wanted to talk things through. Without responding to that request, he said he had to go. |
| 416. | The next day, Friday the 20th, Ms McHugh went to the conference. |
| 417. | During a lunch break, she called the Accused. |
| 418. | He told her that the deceased was missing. |
| 419. | She asked: “What happened?...Did you argue?”. |
| 420. | He said: “No. There was nothing. She’s just gone missing.” |
| 421. | He told her that she needed not to communicate with him and to “lay low”. |
| 422. | The following morning, the Saturday, the Accused rang Ms McHugh and told her that the police would need to speak with her. |
| 423. | She asked: “what am I supposed to say?”. |
| 424. | He advised her to: just tell the truth. |
| 425. | Later that day, while Ms McHugh was at the police station, the Accused called her. He asked her whether she could talk. She said no. |
| 426. | He then asked her to “just answer yes or no”, and enquired: “Have you told them that we are back together again”. |
| 427. | She simply answered: “Yes”. |
| 428. | Ms McHugh complied with the request not to contact the Accused. |
| 429. | After a while, however, he telephoned her. |
| 430. | He said: “I need you to know that I don’t know what’s happened here. I need you to know I love you…”. |
| 431. | Later, on the Accused’s initiative, the two of them met at a block of units in the Valley for more than an hour. |
| 432. | He told her that she would have to fall in love with someone else. |
| 433. | He also said that he suspected that things weren’t going to be looking good for him. |
| 434. | That day in June 2012 was the last time they met. |
1270. Mr Fuller submitted that on 19 April:
• the deceased was eager to grow the business; • staff at the business saw her laughing and joking. 1271. You were reminded of:
• the phone conversations between Ms McHugh and the Accused on the Thursday afternoon; • Ms McHugh having said that it was unfair on her and on the deceased for the Accused not to have told his wife that she would be at the conference next day; • Ms McHugh had asked: “What’s your plan”; • the Accused had responded: “I’m thinking of selling the business”. 1272. That conversation. Mr Fuller argued, involved Ms McHugh putting pressure on the Accused.
1273. The Accused appreciated that any disclosure by Ms McHugh to the deceased next day, that he had been misleading his wife, would have had catastrophic consequences for him.
1274. He had two choices: tell the deceased about the impending meeting at the conference the next day; or else do nothing. He testified that he decided to do nothing.
1275. Mr Fuller submitted that the Accused had tried to live without Ms McHugh, and could not do that.
1276. The risks, professionally and for his family life, if the two women met at the conference were significant.
1277. That consideration needs to be added to the scratches on his face, the leaves in her hair, and her blood having been found in the car.
1278. You were reminded, yet again, that the Accused had not told the police of his conversation with Ms McHugh on the 19th.
1279. You were taken in detail through text and phone calls the Accused made on the Friday morning.
1280. As to police conversations with the Accused, Mr Fuller emphasised that:
• when asked about his wife’s mental health, he said that he was not sure if she was currently medicated; • he made no reference to her having experienced any adverse reaction to medication or to any recent sign of depression. 1281. The latter is in contrast to the picture he sought to paint when testifying.
1282. Mr Fuller submitted that:
•
the deceased was unlikely to have gone for a walk on Friday morning. She was time poor. She and the Accused had to change their domestic roles that morning because she had to be somewhere by 8.00am;
•
it was therefore highly unlikely that the deceased would be walking the streets of Brookfield that morning.
1283. More reference was made to the contents of the journal and the deceased’s questioning of the Accused before you were reminded of conversations between the Accused and Ms McHugh after the deceased’s disappearance.
1284. Mr Fuller submitted that the Accused had:
• an opportunity to kill; • scratches on his right cheek; and had lied about them; • long-term tension in his relationship with his wife; • tension in his relationship with Ms McHugh; • problems in his business, including debts to friends; • discussions with Ms McHugh on the night of the 19th; • the real prospect of his relationship with Ms McHugh being exposed to his wife at the conference the next day, and her being unwilling to forgive him a second time. 1285. Mr Fuller contended that the case is not about pressures on the deceased. Rather it is about a man having to deal with the consequences of his conduct.
1286. It is not suggested that the killing was premeditated.
1287. Mr Fuller referred to matters he characterised as highly unusual:
• for a tolerant person to suffer Serotonin Syndrome; • for a person who drowns not to have diatoms in her system; •
for a person who falls 11.5m into water or on to land not to have fractures or other evidence of a fall;
• for a combination of plant species to be entwined in her hair; •
that a person would cut himself with a razor such that it looks like fingernail scratches;
•
that the Accused should happen so to cut himself on the very day his wife disappears;
• for the deceased’s blood to be in the position it was in her car; • for the Accused’s phone to be plugged into the charger at 1.48am. 1288. Mr Fuller contended that:
•
the facial scratches reveal close contact while the deceased was struggling for her life;
•
the encounter was personal, violent and effective, as the Accused killed his wife;
• you would convict of murder.
Delivering the verdict
1289. If you find that you need further direction on the law, please send a written message through the Bailiff.
1290. Likewise, should you wish to be reminded of evidence, let the Bailiff know, and make a note of what you want. In that event, the Court would reconvene. When you return to the courtroom, I would provide such further assistance on the law as I can or arrange for the relevant part of the transcript to be found for you and read out, if need be.
1291. Let me turn to the procedure for announcing your verdict.
1292. When you return to the courtroom after having reached your verdict, my Associate will ask:
“Have you agreed upon a verdict?”
1293. If so, you will all then say, "Yes", to show that you have.
1294. My Associate will then ask: "Do you find the Accused, Gerard Robert Baden-Clay, guilty or not guilty of murder?”
1295. Your speaker will then state your verdict: that is, whether guilty or not guilty.
1296. My Associate will then ask you all: "So says your speaker, so say you all?", which is the time-honoured method for inviting the whole jury to signify that the verdict announced by the speaker is indeed the verdict of every one of you.
1297. If that is so, you will collectively confirm that the verdict is unanimous by saying, "Yes".
1298. If the verdict is guilty of murder, no further verdict will be taken.
1299. However, if the verdict is not guilty, my Associate will ask: “How do you find the Accused, again naming him, guilty or not guilty of manslaughter?”
1300. Your speaker will answer.
1301. Then you will again collectively confirm that the verdict is unanimous in the manner just mentioned.
Discharge of reserve jurors
1302. The following remarks are directed to the reserve jurors.
1303. Your participation in this trial is no longer required; and I discharge you.
1304. However, I thank you for your careful attention throughout the trial, and for the dedication with which you have approached your task.
1305. I understand that you may feel disappointed that you are to play no further part in this trial.
1306. I again acknowledge the very considerable service that you have performed over these many weeks.
1307. You are free to leave or to remain, as you wish.
Jury retires
1308. I ask you now please to retire to consider your verdict.
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