The Crown leaves court after the committal hearing for Gerard Baden-Clay.
The Crown leaves court after the committal hearing for Gerard Baden-Clay. Rae Wilson

Expert: Forbidden-item-argument won't win Baden-Clay appeal

A CRIMINAL law expert says there have been successful Queensland appeals based on jurors taking forbidden items into the deliberation room - as one did in the Gerard Baden-Clay murder trial.

But David Field, an associate professor of law at Bond University, said he doubted such an appeal would be successful in the Baden-Clay case.

He said the Queensland Court of Appeal was particularly sensitive to outside factors influencing jurors but the court still believed juries followed judicial directions.

One of the 12 jurors in the Baden-Clay trial downloaded a document from an American jury commentator and took it into the jury room to help them decided the guilt or innocence of Baden-Clay.

Justice John Byrne confiscated the document and told them they must only use what they had heard in the courtroom to make their decision.

"You scarcely need to know what some overseas commentator speaking about a very different system of jury trials happens to think," he said.

Lawyers for Baden-Clay will be poring over five weeks of transcripts to decide whether they have grounds to appeal his murder conviction.

They have one calendar month from the day of verdict to lodge an appeal.

Baden-Clay, 43, cannot appeal his sentence because murder carries mandatory life imprisonment.

Mr Field said the ultimate question for the appeal court would be whether there had been a miscarriage of justice.

He said Baden-Clay's lawyers could argue the verdict was contrary to the evidence or that the trial judge misdirected the jury.

Mr Field said he doubted either of those would be successful, but the jury's questions about manslaughter and circumstantial evidence could help the lawyers form their arguments.

He said the appeal court, if they find a problem with the way the trial ran, could set the conviction aside and order a retrial or they could let the conviction stand.

"If they think there has been a legal irregularity, such as trial judge misdirecting a jury, but they think there is no miscarriage of justice they can uphold the conviction," he said.

Mr Field said the appeal court also had the option of substituting murder of manslaughter if they found there was no evidence Baden-Clay intended to kill his wife.

"But they are more likely to send it back for retrial," he said.

Baden-Clay - who is housed at Wolston Correctional Centre, west of Brisbane - faces a 15-year non-parole period.

Mr Field said the Queensland Parole Board did not have a good track record in following directions from supreme court judges on recommendations for release.

He said they were notorious for keeping prisoners in longer than their parole terms.

Baden-Clay is housed in the same prison as Daniel Morcombe's murderer, Brett Peter Cowan, who has been in protective custody since he was convicted in March.



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