Baden-Clay’s cold-blooded dumping of his dead wife’s body is the work of a killer, a court hears
GERARD Baden-Clay’s lies to his own children show how cold-blooded and calculating he was in his wife’s murder, a court heard.
GERARD Baden-Clay’s “cold-blooded” and “calculated” disposal of his wife Allison’s body, combined with his ongoing lies to police, point to a man more than capable of murder, a court has heard.
The Queensland Director of Public Prosecutions is fighting for the reinstatement of the former Brisbane real estate agent’s murder conviction in the High Court of Australia, after it was controversially downgraded to manslaughter on appeal last year.
The Court of Appeal ruled there was insufficient evidence to support the verdict of murder a Queensland Supreme Court jury reached in 2014, instead substituting manslaughter.
But on Tuesday, Walter Sofronoff, QC, for the Crown, argued that Baden-Clay’s cold-blooded disposal of his wife Allison’s body and the lies he told police and continued to tell throughout his trial made him a man capable of murder.
Mr Sofronoff said Baden-Clay also used one of his three young daughters in an attempt to conceal his guilt, telling her the scratches Allison left on his face as she fought for her life were shaving cuts, which he asked her to apply band aids to.
“It’s not just the conduct itself but the character of conduct that might give rise to an inference of intention, Mr Sofronoff argued.
“His preparedness to use his children, one could conclude about him he is someone who is capable of murder.”
Mr Sofronoff argued the Court of Appeal erred when it considered a number of circumstantial factors that could point to an intention to kill Allison in isolation, rather than collectively.
He said pressure was growing on Mr Baden-Clay the night his wife died.
He had, without his wife’s knowledge, recommenced an affair with mistress Toni McHugh, who he had promised to leave his wife for by July 1, 2011, in the days leading up to Allison’s death on April 19, 2012.
He was hundreds of thousands of dollars in debt and had been refused loans by friends and acquaintances in the lead-up to Allison’s death, which had put him in danger of losing his real estate business.
There was also the looming prospect that the day after he killed his wife, she and his mistress were due to cross paths at a Real Estate Institute of Queensland lunch.
He said the Baden-Clays were undergoing marriage counselling and just a week before he killed Allison, he told Ms McHugh he loved her and that he had every intention of standing by his promise to leave Allison by July 1.
“It was clear the defendant had found living with his wife intolerable and unendurable,” Mr Sofronoff said.
“In the case of this woman he made a promise to end his marriage he described as unconditional.
“We have cited in our outline a number of cases that evidence of motive, including evidence that a man’s longing to be with another woman other than his wife could be evidence of intent to murder.”
But it was Baden-Clay’s conduct after his wife’s death that most pointed to the killing not being unintentional, Mr Sofronoff said.
Under the cover of darkness, he dumped the body of the mother of his three children in a creek, 14km from the family home.
Forensics experts were unable to determine a cause of death and it is still unknown whether Allison was dead or fatally injured when her body was disposed of.
Baden-Clay hid the continuation of the affair with Ms McHugh from police.
He told them scratches on his face were from a razor, as he had told his daughter, in a bid to give greater credence to the tale.
In fact, medical experts were unanimous in their agreement that there were two sets of marks on his face, one from a razor being dragged across, rather than down, and one most likely inflicted by fingernails.
And when it came to his trial, he continued to maintain he had no idea how his wife died.
“Did you kill your wife?” he was asked.
“No, I did not,” he replied.
“A reasonable jury could conclude (this behaviour) was inconsistent with the notion of a man who unintentionally killed his wife,” Mr Sofronoff said.
For Baden-Clay, whose presence was not required in court on Tuesday, Michael Byrne, QC, argued, as he successfully did on the Court of Appeal that there was insufficient evidence to point to intent to kill.
Unlike in the Court of Appeal, however, at least two of the judges seemed unconvinced.
“There is no evidence available that the accused intended to kill or do grievous bodily harm,” Mr Byrne said.
“All the evidence goes to show is there was an argument, then maybe a fight and she responded physically and she was dead.”
He dismissed the argument his client’s conduct after Allison’s disappearance pointed to him being guilty of intentionally killing her, saying thought there were “aspects of callousness” it did not prove murder.
“It’s important to note there was simply no evidence of violence between them and that came from their three children,” he said.
Justice Patrick Keane, one of the five judges who will decide Baden-Clay’s ultimate fate, appeared unconvinced by the change of tactic from complete denial of involvement in Allison’s death at trial, to admitting there was sufficient evidence to convict on manslaughter at appeal.
“He has had the opportunity to give the evidence, he has given the evidence, it is inconsistent with any notion at all that there was an unintended killing by him,” he said.
“Once he swears the circumstances of events were such the possibility of an unintended killing occurred ... the evidence is inconsistent.”
An overwhelming body of evidence points to the fact it was he who took her life — the scratches she left on his face, the foliage from their garden found in her hair and the drops of her blood discovered in the family car he used to drive her 14km to a creek bed, where he dumped her body.
When Allison Baden-Clay was reported missing by her husband on April 20, 2012, suspicion fell almost immediately upon him.
It intensified 10 days later when her body was found by a kayaker on the banks of the Kholo Creek.
It took a further six weeks for detectives investigating the mother-of-three’s death to charge him with her murder, a charge he has denied since.
Baden-Clay continues to deny he had any involvement in his wife’s death. But after a Supreme Court jury found him guilty of murder after a six-week trial in 2014, his defence team mounted a controversial change of tactic in the Court of Appeal, arguing there was sufficient evidence to make a finding of manslaughter but not of murder.
In a sensational ruling in late 2015, the Court of Appeal, led by Queensland’s Chief Justice, Catherine Holmes, agreed with the defence, setting aside the murder conviction and substituting manslaughter.
It prompted a massive public outcry, culminating in a public rally attended by thousands demanding “Justice for Allison”.
In a highly unusual move, the Queensland Director of Public Prosecutions appealed the downgraded conviction in the High Court of Australia.
A five member judicial bench will hear his argument for reinstatement of the murder conviction and the counter-arguments of Baden-Clay’s defence team.
The High Court has reserved its decision for a date to be set.
