The High Court in the recent Gerard Baden-Clay decision restoring the verdict of murder reminds us of the fundamental function of the jury to determine the issues of fact. Given the role of the jury trial in our criminal justice system and as representatives of the community, the setting aside of a jury’s verdict is a serious step.

Baden-Clay was originally convicted before a jury in the Supreme Court of Queensland of murdering his wife. The evidence that Baden-Clay had committed the murder was circumstantial. However the jury was satisfied beyond reasonable doubt he acted with intent to kill or cause grievous bodily harm when he killed his wife.

Baden-Clay appealed to the Court of Appeal of the Supreme Court of Queensland on the ground the jury’s verdict was unreasonable. At his trial and under cross examination Baden-Clay denied he killed his wife. The jury was satisfied on the evidence that Baden-Clay was the agent of his wife’s death.

The Court of Appeal accepted Baden-Clay killed his wife however it considered there was insufficient evidence he intended to kill her. For this reason the Court of Appeal set aside the decision of murder and substituted a finding of manslaughter. The offence of manslaughter does not require intention only wrongful killing.

The High Court reviewed the evidence presented at the original trial and said the Court of Appeal’s conclusion was not based on evidence. The original trial was conducted on the basis Baden-Clay had murdered his wife. He gave evidence in the witness box and denied killing his wife. There was evidence before the jury about arguments and affairs. The evidence of the cause of the wife’s death was unclear because of decomposition and post-mortem injuries.

Importantly the issue of Baden-Clay unintentionally killing his wife was not raised by the prosecution or the defence in the trial and so not considered by the jury in its deliberations. As the proposition of manslaughter was not an issue at the original trial it was not open to introduce it at the appeal hearing.

In its decision the High Court emphasised the important role of the jury in determining issues of fact. And while there may be alternate theories about the death of Mrs Baden-Clay, based on the evidence, it was open to the jury to conclude Baden Clay killed his wife and did this with intent. It is also important to recognise the crucial role played by the High Court in our justice system being the final court of appeal in Australia.