Gerard Baden-Clay’s conviction for murdering his wife Allison was based on flawed evidence about marks on his face and ignored the possibility that her death was accidental, an appeal court has heard.
The former Brisbane real estate agent, a great-grandson of scouts founder Lord Baden-Powell, was jailed for life last year after a jury found he killed his wife at their home while their three daughters slept in April 2012.
The case, which led to one of Australia’s highest-profile murder trials, continues to command intense interest, with more than 150 observers packing the public gallery along with family members when it went before the Queensland court of appeal on Friday.
Allison’s body was found under a bridge at Kholo, 13km from the family home in the leafy upper-middle class suburb of Brookfield, 10 days after her disappearance.
Prosecutors in the original trial argued that marks on Baden-Clay’s face on the morning he reported his wife missing were evidence of Allison clawing at him during a struggle that led to her murder.
A confrontation on the night of 19 April was a culmination of pressures Baden-Clay felt about leaving Allison for his mistress Toni McHugh, with both women due to attend the same real estate conference the next day.
But Baden-Clay’s barrister Michael Copley told the court on Friday: “The hypothesis that’s suggested ... is this: that there was an unintended killing resulting from a confrontation and the confrontation arose out of an argument.
“And the argument escalated to violence, as indicated by the marks on his face.” He then panicked and dumped his wife’s body.
Baden-Clay was found at the original trial to have lied about the fingernail scratches and tried to disguise them by deliberately cutting himself further with a razor.
But Copley said the trial judge had erred by allowing the jury to infer murder on the basis of this ruse.
Copley said while medical experts had testified the larger vertical lines on Baden-Clay’s face appeared to be fingernail scratches, they could not say with certainty that the second set of marks was made at a later time.
“The contention is… if experts could not say whether these marks on the lower part of the photograph were made at a time separate from the lineal abrasions running down the cheek, then how could they represent an attempt to disguise the three lineal abrasions?” he said.
Copley asked how it was possible that the jury was “capable of resolving a matter that was seen fit to be the subject of expert testimony, when the experts were so equivocal about the matter”.
The jury had thus been “invited to infer guilt of murder on the basis of conduct the evidence could not establish he engaged in”, Copley told the hearing before court of appeal justices Catherine Holmes, Hugh Fraser and Robert Gotterson.
Copley also claimed that the jury should have been directed that it could not have any reasonable doubt that it was Baden-Clay that dumped Allison’s body at the bridge.
Justice Holmes halted this line of argument by telling Copley that jury members “don’t have to believe every word in the crown case”.
Copley said there had been no evidence of previous violence or threats by Baden-Clay towards his wife, and no drug or alcohol problems that might have “lowered inhibitions” on the night before Allison’s disappearance.
The prosecution argument that Baden-Clay had succumbed in large part to increasing pressure from McHugh to leave Allison for her was “nothing more than a hypothesis”.
Despite the “catastrophic” revelation months earlier of the affair and that he did not love Allison anymore, he had stayed in the house with her.
He had told McHugh he wanted to be with her, but he had also said in marriage counselling he wanted to preserve his relationship with Allison. These were “equivocal statements over time to the opposite effect” that clouded the motive argument, Copley said.
The barrister also argued that pressure on Baden-Clay over business debts – which led him to make an unsuccessful attempt to borrow $300,000 from state MP and neighbour Bruce Flegg – had not been “unsustainable”.
There was no evidence of intensified demands for repayment in the months from the three friends who had loaned Baden-Clay money, Copley said. Nor was there any blood or evidence of a “clean up” found in the house.
The crown contention that the scratches were evidence of Allison “fighting for her life” was a “hypothesis”, as they could equally be evidence of no more than “anger or a struggle”.
The fact Allison’s cause of death – other than it was not natural – could not be determined, with no evidence of trauma, “militates strongly against” the idea of a confrontation that escalated into a deliberate killing, Copley said.
Holmes suggested the lack of evidence of trauma might lead to the idea that Baden-Clay had smothered his wife – something no one did without intent to do grievous bodily harm or kill.
Copley suggested Baden-Clay may have adopted “whatever expedient he needs” to stop the scratching and by “putting his arm over her face could have stopped the breathing”. Holmes replied this was “not very compelling”.
Copley then argued it was possible the couple’s argument had resulted in an “unintended killing” and that everything Baden-Clay did in its wake was a result of panic “because he’s now got a dead wife before him”.
“He knows others know he’s had an affair,” Copley said. “He knows Ms McHugh knows the affair is continuing. He’s aware he made some claim he’d be with her by the first of 1st July which (McHugh) didn’t believe.”
It was possible that the lies Baden-Clay told in the days after Allison’s death stemmed from “panic at a sense of responsibility at having caused the death of his wife, the mother of his children”.
With no evidence of prior threats, there was “no need, if you look at it callously or brutally” for Baden-Clay to kill his wife.
Although Allison’s body showed advanced facial decomposition when found, the absence of injuries consistent with intentional killing had to “militate in favour” of it being unintentional, Copley said.
Holmes asked crown prosecutor Michael Byrne whether it was a plausible “scenario” that Baden-Clay may have dumped Allison’s body after unintentionally killing her, perhaps by striking her and causing her head to fatally hit the ground.
Byrne replied that this was “inconsistent” with Baden-Clay’s own testimony and his continued lies about how the scratches occurred.
“He says he is in the house the whole time (and) doesn’t speak of conflict between the two at any stage,” Byrne said.
The lack of “conclusive evidence from experts” around the cuts did not invalidate the circumstantial evidence as there was a “difference between scientific certainty and reasonable doubt”.
Byrne said: “We will never truly know where and when” Allison’s death occurred. But he argued that even if the crown could not show it was Baden-Clay who drove and dumped her body there remained enough evidence to convict him.
Prosecutors had also argued in the trial that stains in the back seat of Allison’s family car indicated “rivulets” of blood stemming from a fatal injury as her body was driven to the bridge and dumped.
A botanical expert had also testifiedto the trial that leaves found entwined in Allison’s hair were from six species found at the Baden-Clay home but nowhere near the bridge.
There was the leaf debris in her hair, which “significantly” included cats paw creeper growing near the carport.
Byrne said the “only person in a position to kill by whatever means at the house was Gerard Baden-Clay”. Proof of motive was helpful but not necessary, he said.
He said it was wrong to suggest that Baden-Clay’s relationships with both women and his finances had not been deteriorating.
For months he had left his debts unresolved and had been juggling his relationships with Allison and McHugh, whom “he himself had described as fairly volatile”.
There was “a real risk things were going to unwind” for Baden-Clay and this had “impacted on his daily existence and… coalesced on the evening of April 19, 2012”, Byrne said.
The justices reserved their judgment, which is expected within three months.
