Gerard Baden-Clay wins appeal: Baden-Clay to argue he should be released immediately

A MOTHER is dead and the remorseless killer who took her life and dumped her body under a bridge could soon walk out of prison a free man.

A MOTHER is dead and the remorseless killer who took her life and dumped her body under a bridge could soon walk out of prison a free man.

Three judges, led by new chief justice Catherine Holmes, yesterday downgraded Gerard Baden-Clay’s conviction from murder to manslaughter.

Justice Holmes, with Justices Hugh Fraser and Robert Gotterson, delivered the shock decision after finding the former real estate agent, 45, may have unintentionally killed his wife Allison during an argument.

The decision comes despite Baden-Clay’s own testimony, in which he denied any involvement in Allison’s death and claimed fingernail scratches on his face were from shaving.

Baden-Clay is now preparing to argue he should be released from jail immediately after serving just 3½ years behind bars, The Courier-Mail has been told.

He was convicted in July last year of murdering his wife at the couple’s Brookfield home in April 2012, and was sentenced to life in jail.

In four days in the witness box, the former real estate agent insisted he had no idea how his wife died and maintained she simply vanished.

MORE NEWS: How the shock decision unfolded

ALLISON: A missing person like no other

DECISION: Read the full judgment here

PUBLIC REACTION: Outrage following decision

The jury also heard evidence he was under financial and personal stress, with his business failing and his long-term mistress Toni McHugh demanding he leave his wife.

A bloodstain that tested positive for Allison’s DNA was found in her car and leaves were recovered from her hair that matched those from around her house, indicating a struggle at the home.

The jury was also told of Baden-Clay’s rush to claim his wife’s life insurance and superannuation policies, amounting to almost $1 million, money which should now go to the couple’s three daughters, aged 14, 12 and 9.

During the trial in the absence of the jury, trial judge John Byrne heard similar arguments from Baden-Clay’s legal team that the prosecution had failed to prove he intended to kill his wife, which is an essential element of the murder charge. Justice Byrne rejected the argument and found it should be up to the jury to decide if it was murder.

Acting Attorney-General Cameron Dick has sought advice on whether the State should seek leave to appeal to the High Court.

“I have requested legal advice today about the prospects of success on an appeal against the decision of the Court of Appeal involving Gerard Baden-Clay,” he said. “Once that advice has been received and considered, a decision will be made as to whether an appeal should be lodged.”

The Attorney-General must make a decision on any possible appeal within 28 days.

Baden-Clay has never admitted killing his wife and could also seek to appeal to the High Court against the manslaughter conviction.

The Court of Appeal ordered prosecutors to provide sentencing submissions by January 15 and for the defence to provide submissions by January 22. It is understood Baden-Clay will ask for a prison sentence of seven to eight years and immediate release for time served.

His solicitor Peter Shields refused to confirm or deny the plan and said the legal team would not comment. But Baden-Clay will be able to point to his lack of a criminal record before killing his wife.

There was silence in the court as Justice Fraser said the murder conviction was set aside and substituted with a manslaughter conviction, with written decisions published soon after. “There remained in this case a reasonable hypothesis consistent with innocence of murder: that there was a physical confrontation between the appellant 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),” the decision reads.

“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.

“Smothering, the Crown’s thesis, was a reasonable possibility, but, while there was also another reasonable possibility available on the evidence, the jury could not properly have been satisfied beyond reasonable doubt that the element of intent to kill or do grievous bodily harm has been proved. In consequence, the appeal against conviction must be allowed, the verdict of guilty of murder set aside and a verdict of manslaughter substituted.”

The decision should clear the way for the couple’s three daughters to receive Allison’s life insurance, which has been held back pending the result of the appeal and can now be used to support them. Since Baden-Clay’s conviction the girls have had no contact with their father.