Part 1: The Trial Process – Gerard Baden-Clay : Criminal Lawyers Case Files

In 2014, the trial of Gerard Baden-Clay ran before the Supreme Court in Brisbane. Baden-Clay had been charged with the murder (covered under the area of law known as ‘assaults and offences of violence’) of his wife. At the time of writing this article, the jury were still deciding on their verdict. 

Most non-lawyers will think of trials of criminal offences as they see them on American TV, which is quite different to the Australian system, and unless they have served as a juror the whole process remains a mystery. Understanding the trial process will make Part 2 of the Baden-clay trial much easier to understand, so read this first. 

Jury selection

Almost all criminal trials before the District or Supreme Courts of Queensland are heard before a judge and a panel of 12 jurors. A juror is an ordinary member of the community that has been selected at random from the electoral roll. It is the juror’s role, very simply, to decide if the defendant is guilty or not guilty.

Some of you may have at some point received a notice from the courts advising you that you have been selected for ‘jury duty’. Unless there are good grounds to object, such as being unable to speak or understand English, unavoidable work commitments or significant health issues, it is mandatory for a person selected for jury duty to attend. 

Simply being selected for ‘jury duty’ does not automatically mean that you will be a juror on a trial – there is a selection process that must first take place. At the commencement of a trial before the District or Supreme Courts of Queensland, there will be a pool of hundreds of jurors who were selected for jury duty. These people are known as ‘prospective jurors’, meaning that they have only been selected to be a part of the pool of hundreds but not yet in the final 12 that will make up the final jury. 

The jury selection process selects only 12 people (out of the hundreds) who then become the jurors for the trial. Those who are not selected to be in the final jury of 12 go back into the pool and become available for different trials.

The jury selection process is commenced like a lottery. There is a spinning barrel from which numbers corresponding to individual jurors are selected. Once a juror is selected, they walk from the back of the court to the front of the court. The defence and prosecution will only know their name, age, the suburb in which they live and occupation. During this walk, the defence and prosecution will get to observe them and decide if they want them to be part of the 12 person jury. If they don’t, they get to object and that potential juror is returned to the pool. 

The defence and prosecution will only have eight objections so they must use them carefully.  This is an important process as often different jurors will have different beliefs, upbringings, religions and life experiences and these differences can affect the outcome of a trial. For example, in a matter involving an ethnic defendant (or if racism is an issue), it is a common tactic by the defence to try to include as many ethnic jurors as possible — as this can generally increase a defendant’s chances of being acquitted. Once all 12 positions are filled, the jurors are sworn in and the trial begins.

The trial process

  1.     Opening addresses

At the commencement of the trial the prosecution, whoever has the responsibility of proving the charge or charges against the defendant opens their case. The prosecutor will give to the jury an overview of their case in an opening address, which outlines what they will try to prove and how they will try to prove it. The defence then has an opportunity to make an opening address (although this is rare because they don’t want to reveal to the prosecutors what their defence will be).

  1.     Calling of prosecution evidence

After the opening address, the Crown will call their witnesses to give evidence, one by one.  After each witness gives evidence, the defence has the opportunity of ‘cross-examining’ them (which simply means that they have the opportunity of questioning the witness). This is possibly the most important part of a defence lawyer’s job as cross-examination is the only way to highlight the problems, and thus weaken, the prosecution’s case.

  1.     Calling of defence evidence

After all of the prosecution witnesses have given evidence, the defence must decide if they wish to call evidence. It must be remembered that the defendant does not need to prove anything and so it is quite rare for a defendant to give evidence – this is because they will open themselves to being cross-examined by the prosecutor. At Baden-Clay’s trial, he made the very rare decision to give evidence and so was cross-examined by the prosecutor.

  1.     Closing submissions

After the defence case is closed (if they decided to call evidence), closing addresses are made by the prosecutors and defence. This is a summary of the evidence as it unfolded and what each side says the evidence shows.

  1.     Judge’s summing up

After the closing submissions, the judge will provide their summary of the case and give the jury certain directions, including what needs to be considered and proven and how it should be considered and proven.

  1.     Jury’s deliberation

The jury will then ‘retire’, which means that they go away to deliberate on their verdict.

 A unanimous verdict and a majority verdict: In a murder trial such as Baden-Clay’s, the verdict must be ‘unanimous’. That means that all 12 jurors must agree on a verdict, whether that be guilty or not guilty. Unless all 12 agree, the jury will be ‘hung’, which means that the jury will be discharged and the trial will be heard all over again with 12 new jurors.

In trials involving almost all charges other than murder, if after eight hours of deliberating the jury fail to reach a unanimous verdict, the Judge can accept a ‘majority’ verdict, meaning 11 versus one. 

Go to Part 2 of this article here:

  1. Part 2: Man Acquitted of Double Murder; A Case of Self-Defence

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