Scratches on Gerard Baden-Clay’s face key to murder charge downgrade

DEEP scratches on Gerard Baden-Clay’s face helped bring him down in the first place, but now he’s used them as evidence in his favour.

WHEN detectives arrived at Gerard Baden-Clay’s Brisbane home on April 20, 2012, he knew things looked bad.

His wife Allison had disappeared, he told police, and he was the last to have seen her. It would soon come out he was having affairs and the couple had a less-than-happy marriage.

But aside from the suspicious circumstances of the apparent missing person’s case there was another detail that didn’t look right.

“I should clarify, I cut myself shaving this morning and everybody has said it looks suspicious,” Mr Baden-Clay explained to the plainclothes officers.

“It does,” one replied.

“And that’s part of the reason I gather why you’re here,” Mr Baden-Clay said.

Small but significant: Baden-Clay’s suspicious scratches were part of a court exhibit from last year’s murder trial and were raised again in his appeal decision today.

Though he tried to dismiss the marks, the deep scratches would haunt him, eventually forming part of the Crown case that saw the 45-year-old convicted of Allison’s murder two years later.

But this morning, in an extraordinary decision handed down in the Queensland Court of Appeal, the murder conviction Baden-Clay received in July last year was set aside and downgraded to manslaughter.

The scratches were brought up again, with judges saying while it was open to the jury to accept Baden-Clay had lied during his trial about the cause of the facial injuries, and that he had tried to hide his wife’s body, there remained “a reasonable hypothesis consistent with innocence of murder”.

The direction given to the jury about the “abrasions and scratches” on Baden-Clay’s cheek and whether or not they were caused by a “blunt razor blade” while shaving or caused by fingernails were among the grounds of appeal.

The judgement went on to say the “jury could not have been satisfied beyond reasonable doubt that the element of intent to kill or do grievous bodily harm had been proved”.

Cleared of murder and the life sentence that came with it, and still able to appeal his manslaughter charge, Baden-Clay’s future and the freedom he may be allowed is uncertain.

It’s the latest development in the twisted Queensland case that struck a chord with the nation and saw Allison become a face of domestic violence in Australia.

Gerard and Allison Baden-Clay pictured at the time of their engagement.

Focus had been on Allison’s husband since he made the 000 call to police and answered the door to detectives looking tired and scarred.

Ten days after that visit, the mother-of-three’s body was found on a creek bank about 13km from the family home.

Baden-Clay was eventually charged with his wife’s murder though denied any involvement in her death and maintained his innocence throughout, and since, a dramatic six-week trial.

The case was largely circumstantial and even the pathologist could not say for sure what killed Alison, but the Crown said her death was no suicide, but murder, and a jury agreed pointing the finger squarely at Baden-Clay.

The trial heard intimate details of the couple’s marriage, from the fact they rarely had sex to their financial woes.

The trial also heard of how Baden-Clay had sought sex elsewhere and indulged in affairs while his wife gained weight and became depressed.

The most significant affair which was carried on until Allison was killed began in 2008 in Baden-Clay’s real estate office.

Mistress Toni McHugh has said she believes Mr Baden-Clay killed his wife.

Fellow real estate agent Toni McHugh separated from her husband of 17 years after beginning the relationship with Baden-Clay, and hoped he would break off his marriage as well.

She told the court Baden-Clay was adamant he “didn’t love his wife”, and had told her he would be out of his marriage “by 1 July”.

The trial heard Ms McHugh and Baden-Clay had argued the night before Allison’s disappearance, with Ms McHugh saying she was “furious” she was booked into the same conference as Allison the following day, and would have to be in the same room as the woman her lover had promised to leave.

Asked on 60 Minutes after the guilty verdict was handed down why he killed “if it wasn’t for love”, Ms McHugh said: “He killed for himself.”

While the scandalous relationships and details of Allison’s depression coloured the trial, the case was forced to focus on the physical evidence surrounding her mysterious disappearance and death.

At the end of the trial the jury sided with the Crown’s version of events that detailed a “close, personal and violent” death.

The Crown alleged there was a struggle between the couple where Allison “left her mark” on Baden-Clay’s face leaving three visible scratches, and that Baden-Clay killed his wife in his home dumping her body in his car rejecting any suggestion she jumped or fell from the bridge.

In sentencing him to life in jail, the judge said “the community action through the court denounces your lethal violence”.

Legal experts say Gerard Baden-Clay could now be free in four to five years, and is still able to appeal his manslaughter conviction.

Baden-Clay announced in May he would challenge the decision on a number of grounds, including that the jury’s verdict was unreasonable.

Allowing the appeal that began in August this year, Justice Hugh Fraser today announced the Court of Appeals decision to substitute the murder charge for manslaughter.

“The orders of the court are: one, the appeal against conviction is allowed,” Justice Fraser told the packed courtroom.

“Two, the verdict of guilty of murder is set aside and a verdict of manslaughter is substituted.”

In delivering their findings Court of Appeal judges said while it was open to the jury to find Baden-Clay had lied during his trial about the cause of facial injuries, and that he had tried to hide his wife’s body, there remained “a reasonable hypothesis consistent with innocence of murder”.

Judges decided it was possible that there was “a physical confrontation between the appellant and his wife in which he delivered a blow which killed her ... without intending to cause serious harm; 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.”

Legal experts suggest Baden-Clay could be out of prison in as little as four or five years, after already serving three-and-a-half years.

Allison’s family, who issued a statement saying they are “disappointed” in the decision and stand by the original court verdict, and Queensland’s Acting Attorney General Cameron Dick has said he is seeking advice on appealing today’s decision.

Baden-Clay is also able to appeal his manslaughter conviction.

Allison Baden-Clay.

The case griped the nation.

The shocking new chapter in this enduring case is unlikely to be the final twist, and there’s little doubt those three little scratches that have been so significant not only to the trial, but to Allison’s family and friends, will be in the spotlight again.

Speaking with 60 Minutes following last year’s trial, Allison’s close friend Nicole Morrison said she was “grateful” to Allison for making those marks.

“It sounds weird but I’m really proud of her (for marking him) because she fought to the end and that is not her. She is so gentle and soft, but for her, she was literally fighting for her life,” she said.

“I would sit there during the trial and feel so grateful to her that she’d done that and he would be hating that. She did what she had to do.”

Baden-Clay is due to be sentenced again early next year.