Gerard Baden-Clay’s conviction for the murder of his wife, Allison, has been restored by the high court.
The ruling on Wednesday upholds the 2014 finding by a supreme court jury that Baden-Clay, 45, a former Brisbane real estate agent, murdered his wife Allison at their Brookfield home in 2012.
It follows an appeal by the Queensland director of public prosecutions against the downgrading of murder to manslaughter by the Queensland court of appeal, a decision that prompted a protest by thousands of people in Brisbane.
Baden-Clay has now exhausted all avenues of appeal and will again receive a life sentence in prison.
The court of appeal overturned the murder conviction last December, ruling that Baden-Clay may have accidentally killed his wife.
The trio of appeal court judges, led by Chief Justice Cate Holmes, had previously found the prosecution’s account of his motives for murder – including financial difficulties and the strain of their relationship amid an extramarital affair – was not sufficient.
But in a unanimous judgment, the high court found the appeal court was mistaken by finding the jury’s murder verdict unreasonable on the grounds the prosecution had failed to eliminate the theory of Baden-Clay unintentionally killed his wife.
The appeal court accepted the argument by Baden-Clay’s lawyers, made for the first time on appeal, that prosecutors had not done enough to rule out the “hypothesis” of a physical confrontation with Allison in which he delivered a blow that killed her – including by a fall leading to a fatal head injury – without meaning to do so.
The high court found “the hypothesis on which the court of appeal acted was not available on the evidence”, a statement from the court said.
It noted that Baden-Clay at trial denied fighting with his wife, killing her and then dumping her body, which was found under a bridge at Kholo creek 11 days after she went missing.
“His evidence, being the evidence of the only person who could give evidence on the issue, was inconsistent with that hypothesis [of manslaughter].
“Further, the jury were entitled to regard the whole of the evidence as satisfying them beyond reasonable doubt that the respondent acted with intent to kill or cause grievous bodily harm when he killed his wife.”
Kerry-Anne Walker, a friend of Allison, told reporters outside the court in Canberra that the ruling brought “both relief and elation” and “brings to an end Gerard’s attempts to smear Allison’s name”.
“Despite many Queenslanders being labelled as ignorant when they protested the downgrade to manslaughter, the common sense of the original jury has prevailed and justice for Allison has finally been realised,” Walker said.
Baden-Clay had “murdered his amazing wife Allison” then let her family “and the whole community worry and anguish about what had happened”, Walker said.
She said Allison loved being a wife and a mother and was an amazing woman whose legacy will be her three girls.
Her daughters were thriving in their busy lives and would go on to achieve great things, a tribute to Allison’s parents who now care for them, Walker said.
One of the highest profile crimes in recent Australian history, the murder case turned on evidence including scratches on Baden-Clay’s cheek which he claimed were shaving cuts, and the role of his extramarital affair.
Baden-Clay testified that he went to bed on 19 April 2012, leaving his wife in the living room of the rented home they shared with their daughters.
He claimed he awoke the next morning to find her missing but that she often went for early morning walks.
After trying to reach her on her phone and driving around looking for her, he called emergency services to report her missing.
That day, Allison was due to attend a property conference where Toni McHugh, a woman her husband had been in a four-year sexual relationship with, would also be present.
Allison had believed the affair was over in 2011 but Baden-Clay had told McHugh he would leave Allison by 1 July 2012.
Police investigating Allison’s disappearance noticed injuries to Baden-Clay’s right cheek, which he claimed were shaving cuts.
But three experts at trial gave evidence one set of scratches was likely from clawing fingernails. The trial judge, John Byrne, in sentencing said Allison had “left her mark” on her killer during a fatal struggle.
The high court found the jury was entitled to “regard the lengths to which [Baden-Clay] went to conceal his wife’s body and to conceal his part in her demise as beyond what was likely, as a matter of human experience, to have been engendered by a consciousness of having unintentionally killed his wife”.
The hypothesis that the court of appeal said was open to the jury - that Baden-Clay’s dumping of Allison’s body and his subsequent lies about it did not necessarily mean he intended to kill her – flew in the face of the total “circumstances established by the evidence”.
The court of appeal had thus relied on a theory based on “an impermissible ‘piecemeal’ approach to that evidence”, the high court said.
“Finally, the jury could take into account the absence of any signs that a weapon was used to cause the death of the deceased, and make their own judgment about [Baden Clay]’s intention at the time, bearing in mind the difficulty involved in killing a human being without the use of a weapon unless the act of killing is driven by a real determination to cause death or grievous bodily harm.”
Bill Potts, the president of the Queensland Law Society, told the Nine Network after the decision: “Less than 5% of cases each year get to be heard by the high court, so for them to look at a decision by the court of appeal and to then overturn that decision so emphatically is quite a red letter day.
“He has no further appeals … and life imprisonment is the only sentence he can receive in the circumstances.”
