How our courts got the Baden-Clay ruling so wrong

There are a few judges who should be asking themselves some tough questions today.

AS soon as it was handed down the vast majority of Queenslanders could see the Court of Appeal had got it wrong in its judgment on the Baden-Clay murder trial.

Now those advocating for simple common sense have been validated.

There's a lot of ink being spilled today on what the High Court has found.

But for me it is best summed up by what most people said as soon as Baden-Clay's murder conviction was downgraded to manslaughter and it's this:

You can't find the bloke killed his wife but didn't mean to when he says he had nothing to do with her death - those two stories contradict each other.

It has to be one or the other - he either killed her but says it was an accident.

Or he says he had nothing to do with it.

Instead what the Queensland Court of Appeal did is accept a version of events which was invented by Baden-Clay's lawyers - a version that contradicted their client's own story.

This is why everyone who had read the media reports wrongly assumed Baden-Clay had lied on the stand - how else did the court come up with the idea that he did kill her but it was an accident if the man himself was saying he wasn't even there when she died?

Of course today the invalidity of judges accepting scenarios invented by lawyers as facts that have to be proven wrong has been pointed out by the High Court.  

"In any event, this is not a case where the accused remained silent," the High Court judgment states.

"It is a case where the accused gave evidence…

"(Baden-Clay's) evidence was that he had nothing to do with the circumstances in which his wife was killed.

"On his evidence he simply was not present when her death occurred; and he could not have been the unintentional cause of her death."

But the worst part is it isn't some ground-breaking new legal fact to say lawyers can't just make up possible scenarios for what could have happened and then expect judges to accept them - as today's judgment made clear - that was set out by the High Court more than 20 years ago - in Weissensteiner v The Queen (1993).

It's also been reaffirmed in another and more recent prominent High Court judgment - Azzopardi v The Queen (2001).

Clearly reports today that this judgment will change the way trials are run are somewhat misplaced or misleading.

And what is really irksome isn't just the massive amount of money taxpayers will now have to fork out to pay the barristers who argued the State Government's appeal down in Canberra - but the unnecessary grief caused to the family of the victim.

How did the Queensland Court of Appeal get it so wrong?

Chief Justice Catherine Holmes, Justice Hugh Fraser and Justice Robert Gotterson in my mind have some explaining to do.