Allison Baden-Clay.
Allison Baden-Clay. QT file image

Justice refused to chuck out murder charge

A JURY has delivered the guilty verdict on the murder charge Gerard Baden-Clay's defence team tried to have chucked out.

Defence barrister Michael Copley had tried to argue his client had no case to answer on the murder charge just before announcing Baden-Clay would testify in the trial.

He argued there was no evidence to elevate the Crown case from unlawful killing, also known as manslaughter, to murder.

Justice John Byrne dismissed the application after hearing about an hour of submissions from the Crown and defence.
Before he even heard the application, Justice Byrne expressed a reluctance to accept the propositions before him.

"I'm tentatively (of the view that) the jury can be satisfied beyond reasonable doubt that the scratches on the right cheek were from his wife's fingernails," he said.

"If that's a viable view, then why would the jury...(not be entitled) to find that his wife was fighting for her life, and since she did not survive, then proceed to infer that he intended to kill her?"

Mr Copley said all that evidence did was shed some light on what might have happened in the Baden-Clays' Brookfield home on April 19, 2012.

"It shows, arguably, that there was an altercation, a struggle of a physical nature between the two of them but that's all," he said.

Justice Byrne agreed "fighting for her life may overstate it" but suggested the jury was still entitled to infer "that if these are her fingernail scratches and she was engaged in a physical altercation with him, she did not survive it".

"Why is it not open in all the circumstances open to the jury to the jury to infer that she did not survive it because he proceeded intentionally to kill her?" he said.

Mr Copley said there was no evidence that her death was caused intentionally.

"All the evidence goes to show is that there was an argument, there was then arguably a fight, she responded physically towards him and then she is dead," he said.

Justice Byrne said, using that hypothesis, Baden-Clay dealt with his wife's body "in a most undignified fashion" and went "some trouble to hide it".

"But if what had happened was that after she scratched him, she fell forward and bumped her head and died of a subdural hemorrhage, his conduct afterwards looks pretty odd," he said.

"If it had all just been an altercation of not much substance that happened to go wrong, why would he have done what he did?

"Why would he not have immediately called an ambulance?"

Mr Copley gave an example where Baden-Clay could have acted out of panic or fear that he would be accused of having caused the death intentionally because he knew what he and others knew about the state of his marriage.

When the justice asked about the leaves in Mrs Baden-Clay's hair, Mr Copley said that could have been "just an inescapable consequence of a wrestle on the patio or a wrestle on the grass" but pointed out police could find no evidence of a wrestle or struggle in those areas.

Justice Byrne said there were no fractures to Mrs Baden-Clay's head, no suggestion she had fallen and hit her head on bricks or cement to suggest the death was unintentional.

Mr Copley said similarly, no fractures proved a powerful indicator that there was no strong force employed.

Justice Byrne questioned why Baden-Clay would not stop the lies in days following her death if it was not intended.

"If you look at what he did, why isn't the jury able to say, if the death had been an unintentional consequence, no one in his situation would have done what he did?" he asked.

"What he did involved disposing of a body in an undignified way and in manner calculated to prevent its timely discovery.
"He then engages in serious subterfuge. He lies about the scratches and does more than that, he uses the razor blade to create the appearance some hours later of scratches on the face in the red area, he then lies to police about these things and maintains the deception, and has never departed from it.

"Why couldn't the jury say, if it were a moment of panic which led to terrible accident, all that happened thereafter is inexplicable?"

Mr Copley said: The extreme step of disposing of the body is said in some cases to be because the accused person needs to conceal it forever or a long time or for a substantial time because he fears something on or about the body will betray the intent with which death occurred or the intent with which death was caused.

"In the circumstances of this case we contend that is purely conjecture or speculative," he said.

Justice Byrne said that behaviour did not stand alone.

"It's the lies as well," he said.

"The jury is entitled to infer he is lying about the state of affairs in the middle of the night, he's charging his phone at 1.48am, he's telling the police he's a deep sleeper.

"It isn't as if disposing of the body stands alone, and then if the jury takes this view of things when he talks to police we have this story 'I just want my wife discovered, do whatever you like'.

"Why isn't the jury able to look at all of it and say 'this isn't the conduct of man who had an altercation with his wife and a horrible accident eventuated'?"

Mr Copley suggested Mrs Baden-Clay could have charged the phone at 1.48am because she noticed it was flat.
He said while that also might be conjecture, the defence did not bear the burden of proof.

"Consider this scenario - that when she's found, she's found in her walking clothes. The children … did not describe their mother as wearing anything in the nature of walking clothes when they last saw her," he said.

"Looking at that clothing, it doesn't look very comfortable clothing to sleep in. It would be bordering on the absurd to think she changed into her walking clothes at 10.30pm and got into bed so she could make an early start in the morning."

Justice Byrne said the jury was much more likely to infer Mr Baden-Clay, having killed her, then dressed her in those clothes.

Mr Copley said it was a far more likely scenario "that death was caused at or around the time she got up in the morning because she's discovered in the walking gear".

"That's a possibility but it looks like a pretty unlikely one," Justice Byrne said.

"Your client had had a difficult day. He was under financial pressure.

"In the afternoon he'd spoken to Toni McHugh. He was subjected to her anger and insistence that things be done.

"The jury might think the pressure of it all, especially as he was most resistant to the idea that he should be subjected to hearing how his wife felt about the affair - led to a state of affairs where violence erupted - and for whatever reason - he felt then compelled to end his wife's life.

"Some of the jurors might think he was motivated by the insurance proceeds, others might think that he was motivated by an anxiety to be with Ms McHugh.

"Others may think there's nothing in either of those propositions and that he was simply so incensed by the exercise that (counsellor Carmel) Ritchie had recommended, he lost his composure and attacked her.

"However approached, the jury is going to have every foundation for considering he attacked her with violence isn't that so?"

Mr Copley said the Crown case, taken at its highest, could only establish there was a violent struggle at or about the house that night, not who started it.

He questioned how Mrs Baden-Clay would have reacted if, for example, his client had told her he had continued seeing Ms McHugh and was going to take up with her from July 1.

"That, in my submission, could well be enough to make a wife who thought this was all behind them, in the physical sense ... so angry as to physically attack her husband," he said.

"All that you, a court, can conclude from a Crown case taken at its highest is that the scratches evidence a violent encounter between husband and wife at or about the house that night.

"They do not at all assist in who started that encounter, who started that violence, they do not at all assist in providing a foundation for an inference that, whether he started it or not … he caused death intending to cause death or intending to grievous bodily harm

"His actions in disposing of the body is consistent with a panicked response to an unintended outcome.
"On the Crown case he waxed and waned on the issues of whether he would leave his wife and one of the impediments for leaving her was the effect on his children.

"Of course, if he's concerned the effect of a martial break-up on his children that bears upon whether or not he would intentionally deprive his children of their mother.

"The Crown case is that he's had a bad day. It's not going to be a good day tomorrow because worlds are going to collide arguably at the conference, who knows what one woman might say to the other, and therefore he killed his wife intentionally.

"The Crown says from the fact he concealed it to delay or perhaps prevent ever being discovered… you can therefore safely infer there's something about the body that's going to reveal the intention that lay behind his actions when he killed her.

"My submission is that … is not an inference that is open in this case, that rests on conjecture or speculation."

Justice Byrne said, in refusing the application, said he must assume Baden-Clay had killed his wife and dumped her body when considering whether there should be a not guilty verdict on the murder charge.

"On an available view of the facts, he had been scratched by the fingernails of the deceased in a violent encounter between them that night after which she quickly died," he said.

"He then set about attempting to disguise the fingernail scratches on his right cheek by simulating razor cuts to a portion of his face adjacent to the areas of the scratches, an exercise he may well of engaged in some hours after his wife scratched him.

"I interpolate to say that the evidence would justify a conclusion beyond reasonable doubt that the broad linear marks in question were fingernail scratches by his wife inflicted at a time when she was in fear of severe violence at his hands.

"The accused, it may be assumed for present purposes, then lied to his children, to the police and others about the nature of the scratches and did so because he realised the truth of the matter would implicate him in the killing.

"The body was disposed of in a place where it was unlikely to be discovered for some time.

"That is factor which might tend to be regarded as an act which was undertaken to prevent early examination of the body.

"One likely explanation for that step is that the accused was apprehensive with a quick examination of the true state of his wife's body would reveal that she suffered a violent death consistent with an intention on his part at least to cause grievous bodily harm to her.

"The effect of it is that state of decomposition of the body is such that it is not possible to identify a cause of death.

"On this basis it is submitted that there is not an adequate foundation for a view that the body was left where it was because the accused feared that its prompt examination would tend to implicate him not just in killing but in an intentional killing.

"These things - such as disposal of a body and the lies about the scratches on the face - need to be considered in context.

"That context includes others post offence conduct and other evidence in the case.

"The other evidence in the case suggests the accused was subject to a deal of pressure on the night his wife died.

"He had financial pressure in his business, which was long-standing and unlikely to be relieved in the near future.

"More importantly, late that afternoon he had been engaged in discussions with Ms McHugh - which must have been a source of stress as she angrily remonstrated with him over his failure to tell her his wife would be with her at a real estate conference the next day.

"Against that background he was … exposed on the night his wife died to an exercise he resented.

"A relationships counsellor had encouraged him to submit himself to every second night - it may be more frequently the activity took place - listening in silence as his wife explained to him - her feelings concerning her suffering as a result of the affair which had been maintained with Ms McHugh.

"In all he had every reason to be under the kind of severe strain that may have caused him in anger and resentment to engage in violence that resulted in her death.

"But the critical question for present purposes is whether the post effect conduct mentioned and the prolonged nature of the deception that followed could justify the inference of an intention to kill or cause grievous bodily harm - not merely, for example, a panicked reaction to unintended and unwished for death.

"There was a deal of post death conduct engaged in. Lies to the police about the facial scratches as well as to children and family members. In all probability lies about having been asleep that night. And about his wife having left the bed at some stage during the evening.

"In my opinion in all the circumstances, it is open to the jury to be satisfied that the only reasonable inference on all the evidence is that the accused not only unlawfully killed his wife but killed her intending to cause her death."

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