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- The application of principles relating to circumstantial evidence – R v Baden-Clay (2016) 90 ALJR 1013;  HCA 35
Updated 25 November 2016
The application of principles relating to circumstantial evidence
Whether the Court of Appeal’s decision overturning a jury verdict on the basis that the Crown’s hypothesis of guilt was not the only reasonable one available on the evidence should stand – whether the jury’s verdict was unsafe and unsatisfactory – application of principles relating to circumstantial evidence
Words and Phrases – “circumstantial evidence” – “hypothesis consistent with innocence” – “intention” – “intractably neutral” – “lies” – “motive” – “post-offence conduct” – “role of the jury” – “unreasonable verdict” – “whole of the evidence”
The respondent (the accused in the trial) was charged with murdering his wife. The case was entirely circumstantial, relying on a series of factual matters which the Crown submitted were consistent, and only consistent, with a hypothesis that he intentionally killed his wife. The circumstances relied on by the Crown can be summarised as follows:
The body of the deceased was found near a creek. It was significantly decomposed. The medical forensic evidence concluded that the deceased did not drown and did not have any skull fractures. The forensic evidence did not point to any particular cause of death except that she did not die of natural causes. There were some leaves on the body that were consistent with having come from the deceased’s home and were plants not found where the body was located.
There was some blood matching the deceased’s blood inside her car. The car had only recently been purchased.
The respondent had told police that he was asleep at a time when his mobile phone was placed on a charger next to his bed.
The respondent’s injuries
The respondent had injuries on his face. There were two categories. One group appeared to match scratch marks and were not caused through shaving. There was a second set of fresher injuries which appeared to be consistent with having been caused by a razor but were not left by shaving. They appeared to be deliberate injuries on the respondent’s face. The submission was made that the injuries, in combination, were consistent with the respondent having been injured in a confrontation with his wife and the additional injuries having been applied by the respondent in an attempt to conceal scratches.
The respondent’s relationship with a girlfriend
The respondent was carrying out an affair with another woman at the time of his wife’s death. The respondent admitted in evidence that he had told this woman that he loved her and would leave his wife. He also said in evidence that what he told her was not true and that he only told the woman that to placate her.
The Crown case
The Crown alleged that the respondent fought with his wife on the night that she died. He fought with her over his relationship with the woman with whom he was conducting the affair. He feared that both women would meet at an upcoming conference. During the altercation with the deceased, the respondent killed his wife with the intention of causing her grievous bodily harm.
The respondent’s case at trial
As noted, the respondent gave evidence. He said that he had nothing to do with the death of his wife. He denied having fought with her on the night when she disappeared. During the trial, the respondent’s counsel disavowed a hypothesis that, despite the respondent’s denial of any confrontation that evening, that such a confrontation occurred and the deceased fell and hit her head.
Court of Appeal
The Court upheld an appeal on the basis that the Crown had not excluded as a reasonable hypothesis, “that there was a physical confrontation between the respondent and his wife in which he delivered a blow which killed her (for example by the effects of a fall and hitting her head against a hard surface) without intending to cause serious harm”, and thereafter he disposed of her body. This hypothesis was said to be a reasonable one by the Court of Appeal even though the respondent gave direct evidence contrary to the hypothesis, namely that there was no confrontation with the deceased that night and that the hypothesis was disavowed by trial counsel and despite the fact that there were no head injuries observed on the body of the deceased.
Result: The Crown appealed the decision. The High Court overturned the decision and re-instated the respondent’s conviction for murder.
The Court noted the circumstantial evidence available against the respondent including his lies, his motive due to his affair, his admission that he would leave his wife and the forensic evidence. The Court also noted that the Court of Appeal held that the respondent was the person who caused the death of the deceased. Consequently, his denials of having had any confrontation with her were inconsistent with the Court of Appeal’s finding.
The Court of Appeal’s decision that there was a hypothesis consistent with innocence was said by the Court not to be based on the evidence in the trial. “It was mere speculation or conjecture rather than acknowledgement of a hypothesis available on the evidence. In this case, there was no evidence led at trial that suggested that the respondent killed his wife in a physical confrontation without intending to kill her”.
Further, the Court noted that the Court of Appeal should not have treated the case as one in which it was open to it to identify a hypothesis as to the circumstances of death of the deceased on the basis that the respondent’s evidence could be disregarded as if it had not been given at all. The respondent did give evidence and his evidence was that he had nothing to do with the death of his wife.
The Court noted that it was essentially for the jury to decide the facts and that, based on the circumstances led in the Crown case, it was open to the jury rationally to conclude that the respondent killed his wife and did so with intent, at least to cause grievous bodily harm and consequently, it was open for the jury to find the respondent guilty of murder.
Conclusion: The appeal was allowed and the Court of Appeals’ judgment was set aside. The conviction of the respondent was therefore confirmed.
Comment: There was a great deal of controversy surrounding this case and it gained a high level of public interest and scrutiny. It appears that some considered that the High Court’s reference to the fact that the respondent gave evidence which was rejected by the jury somehow reversed the onus of proof. However, it is clear from the judgment that the Court did no more than apply settled authorities. What is important to take from this judgment is the reaffirmation of the law concerning circumstantial evidence. That is that a reasonable hypothesis inconsistent with guilt must be based on evidence and not mere suggestion or speculation.
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