R v Baden-Clay - [2014] QSC 156

SUPREME COURT OF QUEENSLAND

IMPORTANT NOTICE:

THESE REASONS ARE SUBJECT TO THE FOLLOWING NON-PUBLICATION ORDER MADE 3 FEBURARY, AND VARIED ON
28 FEBRUARY 2014

“Save for publication for the purposes of the prosecution, defence and conduct of the proceeding, the reasons for decision on the application not be published until a verdict has been delivered in the trial of Gerard Robert Baden-Clay in relation to the charge that on or about the nineteenth day of April 2012 at Brisbane in the State of Queensland Gerard Robert Baden-Clay murdered Allison June Baden-Clay.”

CITATION:

R v Baden-Clay [2014] QSC 156

PARTIES:

R
(respondent)
v
GERARD ROBERT BADEN-CLAY
(defendant/applicant)

FILE NO:

467 of 2013

DIVISION:

Trial Division

PROCEEDING:

Applications under s 590AA Criminal Code 1899 (Qld) to exclude expert evidence from being admitted at trial.

ORIGINATING COURT:

Supreme Court of Queensland

DELIVERED ON:

28 February 2014

DELIVERED AT:

Brisbane

HEARING DATE:

3 February 2014

JUDGE:

Applegarth J

ORDERS:

1.The application for the exclusion of certain parts of the evidence of Dr Milne is allowed in part.

2.Subject to the submissions of the parties as to the form of rulings in relation to the evidence of Dr Milne:

(1)Dr Milne may give evidence of his observation of a probable haemorrhage on the interior left chest wall (“the chest haemorrhage”).

(2)Dr Milne may give evidence of the possibility that the force which caused the chest haemorrhage was a blunt force.

(3)Dr Milne not include the words “from an assault” when he initially says in his evidence-in-chief that the chest haemorrhage could have been the result of blunt force.

(4)Dr Milne may explain to the jury what he means by “blunt force” and to give examples of it, not limited to force from an assault.

(5)Dr Milne may give evidence about the existence of the granular brown material between the left side of the brain and the dura, his observations of that material and a comparison between the left and right cerebral hemispheres.

(6)The evidence of Dr Milne to the effect that the material beneath the right sided dura “may possibly represent subdural haemorrhage” not be led by the prosecution.

(7)Unless Dr Milne is cross-examined about the possible causes of the granular brown material between the left side of the brain and the dura and gives evidence during his cross-examination of a possible subdural haemorrhage, Dr Milne may give not evidence that an assumed or possible subdural haemorrhage could have been the result a moderate degree of blunt force and that if there was a subdural haemorrhage, then it was a likely cause of death.

(8)Dr Milne (or a dental expert) may give evidence of a personal observation of a small mesio-incisal chip on tooth 33, which may or may not have been a recent chip.

(9)Dr Milne may not give evidence-in-chief on the assumption that the chip was of a recent injury, that it indicates an impact in the mouth region or that it could have been the result of blunt force from an…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading R v Baden-Clay

Details

AGLC: R v Baden-Clay [2014] QSC 156
Case: [2014] QSC 156
Decision Date: 28 February 2014

CaseChat Overview and Summary

In the case of R v Baden-Clay, the defendant, Gerard Robert Baden-Clay, was on trial for the alleged murder of his wife, Allison June Baden-Clay. The dispute centered on the admissibility of certain evidence given by a forensic pathologist, Dr. Milne, concerning the circumstances of Allison’s death. The Supreme Court of Queensland was tasked with determining whether specific parts of Dr. Milne’s evidence were admissible, given the potential for prejudice and speculation. The court had to decide whether Dr. Milne’s evidence, which included observations about possible injuries and causes of death, was based on a reliable body of knowledge or whether it allowed for speculation without sufficient evidence.

The court examined whether Dr. Milne’s evidence regarding possible injuries and causes of death fell within the realm of common experience or was based on a specialised body of knowledge. Additionally, the court considered whether the evidence was potentially prejudicial to the defendant, thus warranting exclusion under judicial discretion. The court had to balance the probative value of the evidence against any prejudicial effect it might have on the fairness of the trial. Ultimately, the court found that while some of Dr. Milne’s evidence could be admitted, certain speculative aspects needed to be excluded to prevent undue prejudice to the defendant.

Following its analysis, the court made several rulings regarding the admissibility of Dr. Milne’s evidence. Dr. Milne was permitted to testify about certain injuries and observations, but he was prohibited from speculating on certain causes of death and from assuming recent injuries without sufficient evidence. The court also addressed the admissibility of evidence from other witnesses, ultimately deciding that their evidence should not be excluded. The court varied a non-publication order to allow limited reporting on the proceedings, ensuring that the media could report on the applications and evidence while maintaining the integrity of the trial.

The final orders included specific instructions on what evidence Dr. Milne could and could not present, guidelines on the form of the court’s rulings, and a modified non-publication order. These rulings ensured that the trial would proceed fairly while allowing for necessary public interest reporting.

Orders

Orders of the court

1.The application for the exclusion of certain parts of the evidence of Dr Milne is allowed in part.

2.Subject to the submissions of the parties as to the form of rulings in relation to the evidence of Dr Milne:

(1)Dr Milne may give evidence of his observation of a probable haemorrhage on the interior left chest wall (“the chest haemorrhage”).

(2)Dr Milne may give evidence of the possibility that the force which caused the chest haemorrhage was a blunt force.

(3)Dr Milne not include the words “from an assault” when he initially says in his evidence-in-chief that the chest haemorrhage could have been the result of blunt force.

(4)Dr Milne may explain to the jury what he means by “blunt force” and to give examples of it, not limited to force from an assault.

(5)Dr Milne may give evidence about the existence of the granular brown material between the left side of the brain and the dura, his observations of that material and a comparison between the left and right cerebral hemispheres.

(6)The evidence of Dr Milne to the effect that the material beneath the right sided dura “may possibly represent subdural haemorrhage” not be led by the prosecution.

(7)Unless Dr Milne is cross-examined about the possible causes of the granular brown material between the left side of the brain and the dura and gives evidence during his cross-examination of a possible subdural haemorrhage, Dr Milne may give not evidence that an assumed or possible subdural haemorrhage could have been the result a moderate degree of blunt force and that if there was a subdural haemorrhage, then it was a likely cause of death.

(8)Dr Milne (or a dental expert) may give evidence of a personal observation of a small mesio-incisal chip on tooth 33, which may or may not have been a recent chip.

(9)Dr Milne may not give evidence-in-chief on the assumption that the chip was of a recent injury, that it indicates an impact in the mouth region or that it could have been the result of blunt force from an assault.

(10)Dr Milne may give his reasons for concluding that the circumstances favour an unnatural cause of death over a natural cause of death.

(11)Dr Milne may not give evidence that possible causes of death are smothering and strangulation.

(12)Dr Milne may give evidence of significant soft tissue loss and that if there had been injuries at certain sites, then those injuries could have been destroyed or obscured by post-mortem changes, and explain how areas of injury (ante-mortem and post-mortem) could have been destroyed or obscured.

3.Any submissions as to the form of the rulings in the previous paragraph be made on a date to be fixed in the week commencing 3 March 2014.

4.The application for the exclusion of the evidence of Robert Hoskins, Leslie Griffiths, Margaret Stark and David Wells is refused.

5.The applications in paragraphs 3, 4 and 5 of the application filed 18 September 2013 are dismissed.

6.The non-publication order made on 3 February 2013 be varied by the insertion in paragraph 1 of the words “Save for publication for the purposes of the prosecution, defence and conduct of the proceeding” so that the orders, as varied, read:

(1)Save for publication for the purposes of the prosecution, defence and conduct of the proceeding, the reasons for decision on the application not be published until a verdict has been delivered in the trial of Gerard Robert Baden-Clay in relation to the charge that on or about the nineteenth day of April 2012 at Brisbane in the State of Queensland Gerard Robert Baden-Clay murdered Allison June Baden-Clay.

(2)The media, subject to the undertakings that have been given, is free to report the fact that these applications have been made and are able to report the evidence to which the applications relate and the submissions that have been made in relation to them, subject to the undertakings given that the reports be fair, balanced and accurate and that those reports be reviewed by a lawyer prior to publication.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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CITATION:	R v Baden-Clay [2014] QSC 156
PARTIES:	R (respondent) v GERARD ROBERT BADEN-CLAY (defendant/applicant)
FILE NO:	467 of 2013
DIVISION:	Trial Division
PROCEEDING:	Applications under s 590AA Criminal Code 1899 (Qld) to exclude expert evidence from being admitted at trial.
ORIGINATING COURT:	Supreme Court of Queensland
DELIVERED ON:	28 February 2014
DELIVERED AT:	Brisbane
HEARING DATE:	3 February 2014
JUDGE:	Applegarth J
ORDERS:	1.The application for the exclusion of certain parts of the evidence of Dr Milne is allowed in part. 2.Subject to the submissions of the parties as to the form of rulings in relation to the evidence of Dr Milne: (1)Dr Milne may give evidence of his observation of a probable haemorrhage on the interior left chest wall (“the chest haemorrhage”). (2)Dr Milne may give evidence of the possibility that the force which caused the chest haemorrhage was a blunt force. (3)Dr Milne not include the words “from an assault” when he initially says in his evidence-in-chief that the chest haemorrhage could have been the result of blunt force. (4)Dr Milne may explain to the jury what he means by “blunt force” and to give examples of it, not limited to force from an assault. (5)Dr Milne may give evidence about the existence of the granular brown material between the left side of the brain and the dura, his observations of that material and a comparison between the left and right cerebral hemispheres. (6)The evidence of Dr Milne to the effect that the material beneath the right sided dura “may possibly represent subdural haemorrhage” not be led by the prosecution. (7)Unless Dr Milne is cross-examined about the possible causes of the granular brown material between the left side of the brain and the dura and gives evidence during his cross-examination of a possible subdural haemorrhage, Dr Milne may give not evidence that an assumed or possible subdural haemorrhage could have been the result a moderate degree of blunt force and that if there was a subdural haemorrhage, then it was a likely cause of death. (8)Dr Milne (or a dental expert) may give evidence of a personal observation of a small mesio-incisal chip on tooth 33, which may or may not have been a recent chip. (9)Dr Milne may not give evidence-in-chief on the assumption that the chip was of a recent injury, that it indicates an impact in the mouth region or that it could have been the result of blunt force from an…