Gerard Baden-Clay charge: Call to insurer may have proved murder

IT WAS the evidence that might have proved Gerard Baden-Clay was guilty of murder, not manslaughter. But prosecutors chose not to pursue it.

Allison Baden-Clay copy photo - Photo Supplied Copyright Unknown

POLICE believe they could show Gerard Baden-Clay murdered his wife Allison for money, using evidence including a shock call to her life insurers days before the killing that prosecutors did not pursue.

The Courier-Mail can reveal detectives found Baden-Clay phoned the insurer a week before he killed his wife but was told he could not be given any information because he was not the policyholder.

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But the prosecution’s decision not to focus on the insurance – almost $1 million – was cited in the appeal court’s decision to controversially downgrade his murder conviction to manslaughter.

Chief Justice Catherine Holmes, Justice Hugh Fraser and Justice Robert Gotterson found in a 14-page decision, which has divided the legal community, there was “no evidence of a motive in the sense of a reason to kill”.

Prosecutors did not have to establish a motive, “but to do so might have assisted in proving an intent to kill or do grievous bodily harm”, the appeal judges found.

“Although there was evidence of an insurance policy on Mrs Baden-Clay’s life, the Crown at trial disavowed any suggestion that the appellant had killed her in order to benefit from it,” they wrote.

Records showed the broke agent, who was cheating on his wife with a long-term mistress, phoned the insurer from his western suburbs real estate office on April 12, 2012.

Police cited the call when they opposed bail but prosecutors did not ask Baden-Clay when he gave evidence at his trial and it is believed the jury was not told about the call.

On April 17, two days before her death, Allison emailed the financial adviser to cut her life insurance by $200,000 to save on premiums.

The adviser contacted insurers that day, but the cut did not come into effect immediately.

By killing his wife at their Brookfield home on the night of April 19, Baden-Clay avoided the insurance being slashed.

The prosecution opted not to pursue Gerard Baden-Clay’s inquiries over wife Allison’s life insurance.

The jury was told Baden-Clay phoned his wife’s insurers the day after her body was discovered to lodge a claim. Allison had not yet been formally identified.

In following weeks he urgently sought a death certificate so he could lodge insurance claims and asked they be expedited, police bail documents say.

An insurance windfall would have solved Baden-Clay’s diabolic financial problems.

He had borrowed $270,000 from friends to keep his business afloat and could not repay them. At home, he had told Allison to fire their cleaner to save money and had been unable to pay for their daughter’s dance lessons, police were told.

The jury was given details of Allison’s insurance and Baden-Clay was questioned about his rush to lodge a claim.

Yet the Court of Appeal wrote: “It is important to note that the Crown did not at trial contend that the killing of Mrs Baden-Clay was in any way premeditated or that the appellant might have been motivated by some benefit he stood to gain from his wife’s death.”

The court was told Gerard Baden-Clay lodged a claim before his wife’s body was identified.

Allison Baden-Clay had inquired about reducing her level of cover.

Director of Public Prosecutions Michael Byrne, QC, declined to discuss Baden-Clay’s call to insurers of the week before Allison’s death.

“In circumstances where consideration is being given to an application for special leave to appeal to the High Court of Australia, and where the matter of sentence remains an issue before the Court of Appeal, there will be no comment made about the matter,” a spokesman said.

A legal source said: “These are difficult judgment calls which prosecutors make in the middle of trials.”

Detectives regarded Baden-Clay’s call to insurers and the payout as highly significant in the overall case and included it among more than 20 pieces of circumstantial evidence of murder.

“I believed it was premeditated. I still believe that,” one officer said.

The downgrade of Gerard Baden-Clay’s charge has triggered a community backlash.

Police found other reasons for Gerard to murder his wife. He had told his mistress Toni McHugh he would be out of his marriage by July 1.

Allison and Ms McHugh were due to attend the same real estate conference the day he reported her missing.

Prosecutors argued it would have been “catastrophic” for his finances and image if Allison discovered the affair was ongoing and demanded a divorce. He could also have faced losing custody of his daughters.

Some senior lawyers have told The Courier-Mail the appeal decision appears sound, but others said the carefully considered verdict of a properly instructed jury should not have been altered. Attorney-General Yvette D’Ath has until January 5 to seek leave to appeal to the High Court.