R v Baden-Clay - [2013] QSC 351

SUPREME COURT OF QUEENSLAND

CITATION:

R v Baden-Clay [2013] QSC 351

PARTIES:

THE QUEEN

(Applicant)

v

GERARD ROBERT BADEN-CLAY

(Respondent)

RELATIONSHIPS AUSTRALIA (QUEENSLAND)

(Intervener)

FILE NO/S:

467 of 2013

DIVISION:

Trial

PROCEEDING:

Application

ORIGINATING COURT:

Supreme Court of Queensland

DELIVERED ON:

19 December 2013

DELIVERED AT:

Brisbane

HEARING DATE:

1 October 2013

JUDGE:

Douglas J

ORDER:

That the counsellor is required to give evidence at the preliminary hearing including evidence of anything said or any admission made to her by the deceased Alison Baden-Clay or the defendant Gerard Baden-Clay in communications by them or either of them in family counselling.

CATCHWORDS:

EVIDENCE – WITNESSES – IN GENERAL – COMPELLING ATTENDANCE – where defendant is accused of murdering his wife – where defendant and deceased attended marriage counselling with a family counsellor – where defendant and prosecution wish to examine the counsellor at a voir dire prior to the trial – where counsellor claims that the Family Law Act 1974 (Cth) prohibits her giving evidence – whether the Family Law Act 1974 (Cth) prohibits the counsellor from giving evidence at the hearing – whether the counsellor is compelled to attend the hearing

EVIDENCE – WITNESSES – IN GENERAL – IMMUNITIES – where defendant is accused of murdering his wife – where defendant and deceased attended marriage counselling with a family counsellor – where defendant and prosecution wish to examine the counsellor at a voir dire prior to the trial – where counsellor claims that a public interest immunity exists to prohibit her giving evidence at the hearing – whether such a public interest immunity exists – whether the counsellor is prohibited from giving evidence if such an immunity does exist

FAMILY LAW AND CHILD WELFARE – THE FAMILY LAW ACT 1975 (CTH) AND RELATED LEGISLATION – MARRIAGE COUNSELLING, MEDIATION AND ARBITRATION – where defendant is accused of murdering his wife – where defendant and deceased attended marriage counselling with a family counsellor – where defendant and prosecution wish to examine the counsellor at a voir dire prior to the trial – where counsellor claims that s 10D and s 10E of the Family Law Act 1974 (Cth) operate to prohibit her giving evidence in the trial – where counsellor claims that those sections also create a public interest immunity that prohibits her giving evidence – whether a public interest immunity exists – whether the Family Law Act 1974 (Cth) prohibits the counsellor from giving evidence – whether the counsellor is compelled to attend the hearing

Criminal Code (Qld), s 590AA
Judicature Act 1903 (Cth), s 78B

Family Law Act 1974 (Cth), s 4, s 10D, s 10E

Anglicare WA v Department of Family and Children Services (2000) 26 Fam LR 218; [2000] WASC 47, considered
Cooper v Cooper [2012] FMCAfam 789, cited
Farah Constructions Pty Ltd v Say-Dee Pty Ltd (2007) 230 CLR 89; [2007] HCA 22, followed
Fernando v Commissioner of Police (1995) 36 NSWLR 567, cited
R v Liddy(No 2) (2001) 79 SASR…

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 [2013] QSC 351
Case: [2013] QSC 351
Decision Date: 19 December 2013

CaseChat Overview and Summary

In the case of R v Baden-Clay, the defendant, Gerard Baden-Clay, was accused of the murder of his wife, Alison Baden-Clay. The legal dispute centred on the admissibility of evidence from a family counsellor who had conducted marriage counselling sessions with the couple. Both the defendant and the prosecution sought to examine the counsellor at a voir dire prior to the trial. The counsellor, however, argued that the Family Law Act 1974 (Cth) prohibited her from giving evidence, and that a public interest immunity barred her testimony.

The court was tasked with determining whether the Family Law Act 1974 (Cth) imposed any restrictions on the counsellor’s ability to testify, specifically whether sections 10D and 10E of the Act prohibited her from giving evidence at the hearing. Additionally, the court needed to assess whether a public interest immunity existed that would prevent the counsellor from testifying. The central issue was whether these legal provisions or any immunity would bar the counsellor from providing evidence about statements made by either the defendant or the deceased during their counselling sessions.

The court found that the Family Law Act 1974 (Cth) did not prohibit the counsellor from giving evidence at the preliminary hearing. Furthermore, the court ruled that no public interest immunity existed that would prevent the counsellor from testifying. Consequently, the counsellor was compelled to attend the hearing and provide evidence, including any statements or admissions made by the deceased or the defendant during the counselling sessions. The court ordered the counsellor to give evidence at the preliminary hearing, encompassing all communications made by either party during the family counselling.

This ruling ensures that the court can adequately assess the admissibility of the counsellor’s testimony in the context of the trial for the murder of Alison Baden-Clay.

Orders

Orders of the court

That the counsellor is required to give evidence at the preliminary hearing including evidence of anything said or any admission made to her by the deceased Alison Baden-Clay or the defendant Gerard Baden-Clay in communications by them or either of them in family counselling.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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CITATION:	R v Baden-Clay [2013] QSC 351
PARTIES:	THE QUEEN (Applicant) v GERARD ROBERT BADEN-CLAY (Respondent) RELATIONSHIPS AUSTRALIA (QUEENSLAND) (Intervener)
FILE NO/S:	467 of 2013
DIVISION:	Trial
PROCEEDING:	Application
ORIGINATING COURT:	Supreme Court of Queensland
DELIVERED ON:	19 December 2013
DELIVERED AT:	Brisbane
HEARING DATE:	1 October 2013
JUDGE:	Douglas J
ORDER:	That the counsellor is required to give evidence at the preliminary hearing including evidence of anything said or any admission made to her by the deceased Alison Baden-Clay or the defendant Gerard Baden-Clay in communications by them or either of them in family counselling.
CATCHWORDS:	EVIDENCE – WITNESSES – IN GENERAL – COMPELLING ATTENDANCE – where defendant is accused of murdering his wife – where defendant and deceased attended marriage counselling with a family counsellor – where defendant and prosecution wish to examine the counsellor at a voir dire prior to the trial – where counsellor claims that the Family Law Act 1974 (Cth) prohibits her giving evidence – whether the Family Law Act 1974 (Cth) prohibits the counsellor from giving evidence at the hearing – whether the counsellor is compelled to attend the hearing EVIDENCE – WITNESSES – IN GENERAL – IMMUNITIES – where defendant is accused of murdering his wife – where defendant and deceased attended marriage counselling with a family counsellor – where defendant and prosecution wish to examine the counsellor at a voir dire prior to the trial – where counsellor claims that a public interest immunity exists to prohibit her giving evidence at the hearing – whether such a public interest immunity exists – whether the counsellor is prohibited from giving evidence if such an immunity does exist FAMILY LAW AND CHILD WELFARE – THE FAMILY LAW ACT 1975 (CTH) AND RELATED LEGISLATION – MARRIAGE COUNSELLING, MEDIATION AND ARBITRATION – where defendant is accused of murdering his wife – where defendant and deceased attended marriage counselling with a family counsellor – where defendant and prosecution wish to examine the counsellor at a voir dire prior to the trial – where counsellor claims that s 10D and s 10E of the Family Law Act 1974 (Cth) operate to prohibit her giving evidence in the trial – where counsellor claims that those sections also create a public interest immunity that prohibits her giving evidence – whether a public interest immunity exists – whether the Family Law Act 1974 (Cth) prohibits the counsellor from giving evidence – whether the counsellor is compelled to attend the hearing Criminal Code (Qld), s 590AA Judicature Act 1903 (Cth), s 78B Family Law Act 1974 (Cth), s 4, s 10D, s 10E Anglicare WA v Department of Family and Children Services (2000) 26 Fam LR 218; [2000] WASC 47, considered Cooper v Cooper [2012] FMCAfam 789, cited Farah Constructions Pty Ltd v Say-Dee Pty Ltd (2007) 230 CLR 89; [2007] HCA 22, followed Fernando v Commissioner of Police (1995) 36 NSWLR 567, cited R v Liddy(No 2) (2001) 79 SASR…