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Ben Roberts-Smith loses defamation case on contextual truth

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Highly decorated former soldier Ben Roberts-Smith VC MG was the subject of 16 media stories that collectively alleged among other things that he had murdered civilians in Afghanistan and committed an act of domestic violence against a woman.
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Chris Dawson guilty of murdering his first wife Lynette Dawson

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Former high school teacher and rugby league player Chris Dawson has been found guilty of murdering his wife Lynette Dawson after a long Judge-only trial.

Lynette Dawson, 33, disappeared from their Bayview home on Sydney’s northern beaches on 9 January 1982, more than forty years ago. She left behind their two young daughters Shanelle and Sherryn, then aged four and two, and has never been found.
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Chris Dawson refused High Court leave to appeal for a permanent stay

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Former high school teacher and rugby league player Chris Dawson yesterday was refused leave to appeal against the NSW Court of Appeal’s refusal to grant a permanent stay of his murder charge.

Dawson is accused of having murdered his wife Lynette Dawson 40 years ago. Lynette, 33, disappeared from their Bayview home on Sydney’s northern beaches in January 1982, leaving behind their two young daughters Shanelle and Sherryn, then aged four and two.
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Bradley Robert Edwards found guilty of two of the three Claremont killings

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DNA testing in recent decades has miraculously proven the guilty of the guilty and acquitted the innocent, often many years after the fact. In California, it revealed the identity of the Golden State Killer, and resulted in his convictions for his murderous crimes. The case of the Claremont murders is the latest example of crimes catching up to killers long afterwards, all thanks to DNA.

The Claremont killer

The murders

On 27 January 1996, a secretary aged 18 named Sarah Spiers disappeared after leaving Club Bay View in Claremont and calling a taxi from a nearby phone booth. Her body was never found.

On 9 June 1996, Jane Rimmer, a 23 year old childcare worker, was last seen alive outside Claremont’s Continental Hotel on 3 August 1996, Her body was found in bushland at Wellard in Perth’s south on March 15, 1997.

Ciara Glennon, a solicitor aged 27, was last seen in Claremont after visiting the Continental Hotel on 3 April 1997. Her body was later found in bushland at Eglinton in Perth’s north.

A male driver, either in a Telstra vehicle or identifying himself as a Telstra worker, had been seen giving lifts to women in Claremont or neighbouring Cottesloe.

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Neil Andrew Pentland found not guilty of murder of Philip Carlyle

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After a lengthy judge-only trial, Pentland was acquitted.

Neil Andrew Pentland

In 1996, Neil Pentland and his wife Dianne set up a company called ATNET Pty Ltd. Pentland was a director and the secretary of the company. The shares were held by him and his wife. The initial operation of the company involved assisting clients to set up email accounts and with basic internet functions. Mr Carlyle was employed by the company as its marketing manager from late 1996. He was not a shareholder but there was an agreement which would have allowed him to buy 30% of the company’s shares for $30,000 at a later time.

Philip Carlyle was murdered on 13 April 1997. He had been lured, or coerced, into a small, sound-proofed plant room in an office building at Robina. He was then shot in the head and neck with four .32 calibre steel jacket bullets. The weapon used to kill Mr Carlyle has never been found.
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John William Chardon guilty of manslaughter

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A Brisbane jury has today found John William Chardon guilty of manslaughter over his wife’s disappearance in 2013.

John Chardon
The facts
Novy Chardon went missing the same day her husband John Chardon received a legal letter from her solicitors about custody of their children. Her body has never been found. John Chardon has consistently denied any involvement.
Chardon told police that when he woke up on February 7 his wife was gone, with him suggesting she might have sold $70,000 worth of jewellery to fund her departure. However, investigators found Ms Chardon’s passport and she hadn’t used her bank accounts or social media accounts.

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Eurydice Dixon’s killer sentenced to life imprisonment

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Jaymes Todd 1
The facts

Eurydice Dixon was a young comedian who performed at the Highlander Club on the evening before the offences.

On 13 June 2018, Eurydice Dixon was on her way home walking across Princes Park, Carlton North shortly after midnight. Jaymes Todd had been following over a distance of 4.2 kms and for a period of almost one hour as she made her way on foot from Flinders Street, Melbourne to Princes Park. As Eurydice Dixon walked across the soccer fields in the park, Todd violently set upon her, committed the offences of rape, attempted rape and sexual assault, and murdered her by choking her to death with his bare hands. Continue reading “Eurydice Dixon’s killer sentenced to life imprisonment”

Bourke Street killer James Gargasoulas’ criminal history

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It seems the jury that convicted Bourke Street killer James Gargasoulas, who was found guilty of 6 counts of murder and 27 counts of reckless conduct endangering life, got it right:

“Prosecutors said Gargasoulas had relevant criminal history of violent offending with nine relevant cases between 2009 and 2014 including five assault charges and four charges of reckless conduct endangering serious injury.

Court documents show he also offended at age 14 when he brought a stick of gelignite onto school property in Coober Pedy.”

Unsurprisingly, the Prosecution says Gargasoulas should be locked up indefinitely:

“In sentencing submissions presented to the Supreme Court today prosecutors claimed Gargasoulas’ crimes represented the worst examples of murder in Victoria…

“Like the unspeakable crimes committed by Martin Bryant at Port Arthur, Bourke Street, Melbourne, will never be the same again,” the submission stated.

In their submission, prosecutors said Justice Mark Weinberg should sentence Gargasoulas to life without parole based on the number of murders, the deaths of two children, his criminal history and the need for deterrence.”

The defence on the other hand is arguing that Gargasoulas’ mental illness resulted in reduced culpability:

“In submissions tendered to the court, the defence said specific deterrence has a limited role because of his condition and a prison term would weigh more on Gargasoulas than other prisoners because he is confined to his cell for 23 hours a day.

The defence also claimed Justice Weinberg should set a non-parole period and said Gargasoulas’ prior offending was more representative of an anti-social pathology fuelled by drug use than an inherently cruel, callous or barbarous.

“In relation to the nature of the offence, whilst deliberate, tragic and destructive, was borne of a deluded desire to ‘save the world’ underscored by the prisoner’s belief that he had lived many lives and if he, or others died, for that purpose, that rebirth was possible (the concept of reduplication of time),” the submission stated.”


Baden-Clay and the perils of giving evidence in murder trials

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Baden Clay

The facts

Allison Baden-Clay was reported missing by her husband Gerard Baden-Clay on the morning of 20 April 2012.

Her body was found on 30 April 2012 under a bridge on a bank of Kholo Creek, some 13 kilometres from her home. Leaves found on the body were from trees of six species that grew at the Baden-Clay and his wife’s home; four of these did not grow at the site at which the body was found. Baden-Clay and his wife’s eldest child thought that her mother was wearing a “sloppy jacket” and pyjama pants at the time she was watching television. Her body was found clothed in three-quarter length pants, socks, sneakers and a singlet top which had a bra built into it. Blood matching her DNA profile was found in the rear section of her car, which had only been acquired in February 2012. Tests on Baden-Clay’s mobile phone showed that it had been placed on a charger, adjacent to the side of the bed on which he slept, at 1.48am, at a time when he claimed he was asleep.

Gerard Baden-Clay had observable injuries to his right cheek when he reported his wife missing.

Prior to Allison Baden-Clay’s disappearance, Gerard Baden-Clay had been having an affair with Ms Toni McHugh since August 2008. He and his wife were due to go to a conference on 20 April 2012 that Ms McHugh would also attend.

Baden-Clay was also in financial difficulty at the time of his wife’s death.

Baden-Clay gave evidence at his own trial in 2014, in which he denied any involvement in his wife’s disappearance, death or the disposal of her body. He said that he went to bed at about 10pm, leaving his wife, who was watching television, in the living room. He awoke just after 6am on 20 April 2012. His wife was not at home, but she often went for an early morning walk. That morning, he was responsible for getting the children ready for school and taking them there. He testified he was “under the pump a little bit”, was “rushing that morning” and that he had cut himself shaving.

Three experts gave evidence that there were two categories of injuries to the Baden-Clay’s right cheek. Their evidence was that it was most likely that fingernails caused one set of scratches and it was implausible that those scratches had been caused by a shaving razor. A second set of marks appeared to be different. They were fresher, and were consistent with having been caused by a razor “particularly if moved from side to side as it was drawn from front to back or back to front across the face.”

Gerard Baden-Clay was convicted of his wife’s murder by the jury. He appealed his conviction pursuant to s 668E(1) of the Criminal Code 1899 (Qld) on the ground that the verdict was unreasonable, and two grounds concerning the adequacy of the trial judge’s summing up to the jury.

Relevant law

Section of 302 the Criminal Code (Qld) provides that:

“if the offender intends to cause the death of the person killed or that of some other person or if the offender intends to do to the person killed or to some other person some grievous bodily harm… is guilty of “murder”.”

Section 668E(1) of the Criminal Code (Qld), which concerns appeals in ordinary cases, provides that:

“The Court on any such appeal against conviction shall allow the appeal if it is of opinion that the verdict of the jury should be set aside on the ground that it is unreasonable, or can not be supported having regard to the evidence, or that the judgment of the court of trial should be set aside on the ground of the wrong decision of any question of law, or that on any ground whatsoever there was a miscarriage of justice, and in any other case shall dismiss the appeal.”

In Barca v The Queen [1975] HCA 42, Gibbs, Stephen and Mason JJ said:

“When the case against an accused person rests substantially upon circumstantial evidence the jury cannot return a verdict of guilty unless the circumstances are ‘such as to be inconsistent with any reasonable hypothesis other than the guilt of the accused’: Peacock v The King. To enable a jury to be satisfied beyond reasonable doubt of the guilt of the accused it is necessary not only that his guilt should be a rational inference but that it should be ‘the only rational inference that the circumstances would enable them to draw’: Plomp v The Queen; see also Thomas v The Queen.”

In Weissensteiner v The Queen [1993] HCA 65, it was said that:

“in a criminal trial, hypotheses consistent with innocence may cease to be rational or reasonable in the absence of evidence to support them when that evidence, if it exists at all, must be within the knowledge of the accused.”

In R v White [1998] 2 SCR 72, in the Supreme Court of Canada, Major J said that:

“As a general rule, it will be for the jury to decide, on the basis of the evidence as a whole, whether the post-offence conduct of the accused is related to the crime before them rather than to some other culpable act. It is also within the province of the jury to consider how much weight, if any, such evidence should be accorded in the final determination of guilt or innocence. For the trial judge to interfere in that process will in most cases constitute a usurpation of the jury’s exclusive fact-finding role.”

Court of Appeal decision

The QLD Court of Appeal allowed the appeal. It held that “there was no evidence of motive in the sense of a reason to kill”, and therefore it was not open for the jury to find that Baden-Clay had intended to kill or cause grievous bodily harm to his wife.

The Court of Appeal held that the evidence at trial was not able to exclude a reasonable hypothesis that:

“there was a physical confrontation between [Baden-Clay] and his wife in which he delivered a blow which killed her (for example, by the effects of a fall hitting her head against a hard surface) without intending to cause serious harm; and, in a state of panic and knowing that he had unlawfully killed her, he took her body to Kholo Creek in the hope that it would be washed away, while lying about the causes of the marks on his face which suggested conflict.”

Remarking on Baden-Clay’s facial injuries, the Court of Appeal opined that:

“There is nothing about the facial scratches to indicate the circumstances in which they were inflicted; whether they occurred in the course of a heated and perhaps physical argument or in resisting a murderous attack.”

The Court of Appeal also said that:

“The jury could properly have rejected every word [Baden-Clay] said as a lie. But that would, with the exception of his explanation of the scratches on his face, have done nothing to advance the Crown case. Conclusions that he had lied in that regard and that he had taken steps to dispose of his wife’s body were properly to be taken into account, as evidence of a consciousness of guilt, in the context of all the evidence in the case. But the lies, or the lies taken in combination with the disposal of the body, would not enable the jury to draw an inference of intent to kill or do grievous bodily harm if there were, after consideration of all the evidence, equally open a possibility that all of that conduct was engaged in through a consciousness of a lesser offence; in this case, manslaughter.”

The two grounds concerning the adequacy of the trial judge’s summing up to the jury were rejected.

The result in the Court of Appeal was that the conviction of murder was set aside, and a conviction for manslaughter was instead imposed.

High Court decision

The Crown appealed to the High Court.

In the High Court, the Crown argued that because no hypothesis of unintentional death caused by Baden-Clay was raised by the defence at trial and there was no evidence to support such a hypothesis, it was not a hypothesis which could form the basis of a reasonable doubt in the jury’s minds. The Crown also argued that the evidence of Baden-Clay’s ongoing relationship with McHugh, his wife’s “venting and grilling” concerning that relationship and the imminent meeting of McHugh and his wife at the conference on the day after her disappearance could fairly lead to the jury inferring an intent to kill. Baden-Clay’s post-offence lies and deceptions were also said to support such a conclusion.

Baden-Clay submitted that as the case for murder depended entirely upon circumstantial evidence and the onus of proof of murderous intent was always upon the Crown, the jury could not return a verdict of guilty. He argued that a hypothesis consistent with innocence of murder was open on the evidence. Baden-Clay’s post-offence lies and deceptions were submitted to be neutral on the question of whether he had intended to cause his wife’s death.

The High Court noted that Baden-Clay’s own evidence at trial was that he was not present and had no involvement in his wife’s death, and held that that evidence had the following effect:

“The evidence given in the present case by the respondent narrowed the range of hypotheses reasonably available upon the evidence as to the circumstances of the death of the respondent’s wife. Not only did the respondent not give evidence which might have raised the hypothesis on which the Court of Appeal acted, the evidence he gave was capable of excluding that hypothesis.

The Court of Appeal’s conclusion to the contrary was not based on evidence. It was mere speculation or conjecture rather than acknowledgment 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. There were “no positive proved facts from which the inference” drawn by the Court of Appeal could be made. There was no evidence at trial of any injury to the wife’s body that might have killed her… Not only were there no fractures to the head, which might have suggested the wife had fallen and hit her head on a hard surface (as in the example given by the Court of Appeal), there were no other fractures on the body.”

The significance of Baden-Clay’s own evidence at trial was further explained by the High Court as follows:

“To say that the respondent’s evidence was disbelieved does not mean that his evidence could reasonably be disregarded altogether as having no bearing on the availability of hypotheses consistent with the respondent’s innocence of murder. His evidence was important, even if it was disbelieved, because it was open to the jury to consider that the hypothesis identified by the Court of Appeal was not a reasonable inference from the evidence when the only witness who could have given evidence to support the hypothesis gave evidence which necessarily excluded it as a possibility.

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 the 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 High Court also observed that a further problem with the Court of Appeal’s approach was that at trial the case was conducted on the basis that Baden-Clay was either guilty or murder or had no part to play in his wife’s death, and neither the Crown nor the defence had ever suggested that Baden-Clay may be guilty of manslaughter rather than murder. Indeed, his Counsel admitted this approach had been adopted by the defence as a “considered tactical position”.

Furthermore, the High Court held that it was open for the jury on the evidence to find beyond reasonable doubt that Baden-Clay had intent to kill or cause grievous bodily harm when he killed his wife. The jury were entitled to conclude “that it tested credulity too far to suggest that his evident desire to be rid of his wife was fortuitously fulfilled by her unintended death”.

Citing the above comment of Major J in R v White with approval, the High Court held that:

“[Baden-Clay’s] false denials to police about his ongoing affair, his suggestion to Ms McHugh that she should “lie low”, and his enquiry of her as to whether she had revealed the affair to the police were all capable of being regarded by the jury as evidencing a strong anxiety to conceal from police the existence and true nature of his affair with Ms McHugh. This anxiety could reasonably be seen as indicative that, in his mind, the affair and the killing were inter-related, and that the killing was not an unintended, tragic death of his wife, but an intentional killing…

It was open to the jury, in this case, to regard the lengths to which the respondent went to conceal his wife’s body and to conceal his part in her demise as beyond what was likely, as a matter of human experience, to have been engendered by a consciousness of having unintentionally killed his wife.”

Finally, the jury was also entitled to consider and rely on “the absence of any signs that a weapon was used to cause the death”, combined with “the difficulty involved in killing a human being without the use of a weapon unless the act of killing is driven by a real determination to cause death or grievous bodily harm” in support of the necessary element of intent.

The result was Baden-Clay’s murder conviction was reinstated.


The High Court found that the Court of Appeal erred because it held that there was sufficient evidence of intent, and that due to a lack of evidence to support the hypothesis that Baden-Clay has accidentally killed his wife such a hypothesis was mere conjecture. As a result, the Court of Appeal’s decision was set aside and the murder conviction was re-instated.

Significantly, Baden-Clay’s own evidence at trial was held by the Court to support a finding that he did intend to kill his wife, even though that very evidence was obviously rejected by the jury. According to the High Court, the jury were entitled to conclude that Baden-Clay’s false testimony that he had no part whatsoever in his wife’s death would not have been given if he had not intended to kill her. In other words, Baden-Clay would have been expected to admit his role rather than give evidence denying it he had accidentally killed his wife.

The result is, as Baden-Clay’s lawyer Peter Shields has pointed out, many people accused of murder now are strongly advised to not give evidence at their own trials, because “if an accused doesn’t give evidence then they’re not subject to that forensic criticism.” In other words, the false testimony provided by a person accused of murder can according to the High Court be legitimately used by jurors to help conclude that they did intend to kill, and therefore that they are guilty of murder rather than manslaughter.

Conversely, if an accused person does decide to give evidence at their own murder trial, they should ensure that their evidence is truthful and (if possible) does not provide a jury with a belief that their evidence consists of self-serving lies. According to the High Court, Baden-Clay’s decision to give evidence at his own trial denying any involvement whatsoever in his wife’s death could be used by the jury to conclude that such an attempt to conceal his involvement inferred murder, and that such false evidence would not have been provided if her death was an accident on his part. The effect of this decision is that those accused of murder are in effect encouraged to ‘come clean’ and admit their involvement (if any) if they wish to be acquitted of murder.

Finally, the High Court’s decision confirms that evidence of intent can be proven beyond reasonable doubt even if it is based entirely on circumstantial evidence. In this case, Baden-Clay’s stated intention to be rid of his wife, the lack of evidence suggesting accidental death and Baden-Clay’s post-offence conduct provided a sufficient basis for the jury to conclude that Gerard Baden-Clay had intentionally killed his wife.

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