Baden-Clay defence hammers prosecution over lack of evidence
GERARD Baden-Clay might be a cheater with "despicable" and "abhorrent" morals but that does not, his lawyer has argued, make him a murderer.
Nor do his financial problems or other "foibles" give him reasonable motive for killing his wife of 14 years, the 15 jurors tasked with deciding Mr Baden-Clay's guilt or innocence were told.
Defence barrister Michael Byrne submitted in Brisbane Supreme Court that the jury could not convict his client unless they were "satisfied beyond reasonable doubt that Gerard killed Allison".
"It may be that some of you or all of you might think less of Gerard Baden-Clay because, as he told you, he wasn't sexually faithful to Allison," he said.
"Maybe you would … find his morals despicable.
"That is a far cry, though, from labelling him a murderer.
"Whatever you may think of Gerard's morals, you don't use those morals to convict him of this crime."
Mr Byrne said the evidence in the past month had shown his client was "not one to rise to great passion and explode", even when his affair was revealed.
He said the Crown theory that he suddenly did so on April 19, 2012, to violently attack his wife and then unceremoniously dump her body did not fit.
"There is no evidence to suggest he is of a violent temper," he said.
"Indeed all the evidence you've heard … is very much to the contrary of that.
"You might think that just as a pre-meditated murder is simply absurd, an unplanned spontaneous eruption of murder caused by emotion with the Footy Show as the background is just as unbelievable."
Mr Byrne asked the jury to exercise common sense when it came to the other suggested motive - financial pressure.
"What we know of Gerard Baden-Clay is that he's an active and contributing member of his community and its organisations including commercial, educational and police liaison," he said.
"Do you think that person would use money as a motive for murder ... 'gee I've got difficulties I might kill my wife?'
Mr Byrne told the jury to focus on the limitations of the experts who testified the scratches on Mr Baden-Clay's face were from fingernails.
He said they agreed they could not exclude other possibilities and it was not ideal interpreting injuries from photographs instead of doing an examination in person.
Mr Byrne asked the jury to look at two big holes in the Crown case - no cause of death and no crime scene.
"Why is there no blood anywhere… when the prosecution case is that somehow the body was somehow carried or dragged through the foliage and deposited in the car?" he said.
"If the body was dragged or carried through the foliage … not waking anyone, the girls don't hear anything, in such a manner that leaves attach to it, leaves that 10 days later are either on or near the body, where are they in the car?
"In the middle of the night he manages to get the body out of the back seat of the car and carry it, drag it, somehow get it down through all that grass through all the mud all the way down to the creek where he places the body.
"He then climbs back up that bank, walks through the mud, through the grass and drives the car home and parks it in the carport.
"Do you think such a scenario is even possible?
"Gerard Baden-Clay is an accountant who works as a real estate agent.
"He's not a forensic scientist. He doesn't know how to sanitise a scene."
Mr Byrne said neighbourhood screams were a central plank in the prosecution case but there had been no mention of them since Stephanie Apps came forward to talk about her daughter screaming at a spider web the night Allison went missing.
"The evidence just falls away," he said.
"That puts a sword through any theory of screams or bumps on the night."
Mr Byrne said it did not seem feasible that Mr Baden-Clay violently murdered his wife and then somehow dressed her "dead, inert body" if that was the Crown theory.
Nor that Allison went to bed in her running gear and Mr Baden-Clay violently killed her in the morning.
"If you've ever tried to dress who's child that's fallen asleep or indeed undress … that's not an easy task," he said.
"Allison was not a child.
"Was the Crown theory that he has undressed her and dressed her meticulously, even to the extent of putting a jumper on the dead body because we've heard from witnesses it was cold at that time in April?
"A violent killing, unceremonious dumping but considerate enough to put a jumper on the dead body."
"Or maybe he waits to morning, then violently kills her and rushes her down to the car."
Mr Byrne warned the jury against linking evidence that "could all hang together" and rather look at each piece of evidence individually.
He said they could not speculate about "a tempting scenario" unless there was evidence.
"You can draw inferences, you can make deductions, you can draw conclusions but again you're not to guess," he said.
"You cannot and should not join the dots if there is no evidence to join those dots."
Mr Byrne reminded the jury they were not watching a soap opera or a whodunit play, that a man's life was at stake.
"This is … a murder trial," he said.
"Your task as the jurors is to assess the evidence, to do it coldly, by that I mean dispassionately and objectively," he said.
"Members of the jury, once you have carefully considered all of the evidence, it's my submission to you that you will not be satisfied beyond reasonable doubt that Gerard killed Allison.
"And once you do reach that point, then it is your duty to find him not guilty."
The Crown will close its case today (Tuesday).
CROWN CASE FLAWS
- No cause of death.
- No signs of a struggle or violence.
- No evidence of a crime scene clean-up.
- Why was Allison dressed in her walking clothes?
- If the Captiva transported the body, why were no leaves found on her body in the car and no mud from the dumping site?
THE ALTERNATE SCENARIO
ALLISON Baden-Clay had desperately wanted a son to carry on the Baden-Clay name.
The mother of three daughters learned the night before she went missing that her sister-in-law had given birth to a boy in Canada.
Defence barrister Michael Byrne asked the jury to consider whether that was a "trigger" that led to her death.
He said the jury might reject his scenario but suggested it was "open on the evidence".
Mr Byrne suggested Allison booked herself into the hairdresser on April because she "was depressed and trying to make herself feel better and improve her self-worth".
He said Allison had been told she could increase her dose of anti-depressants if she felt low or depressed.
"Whether or not she did that we don't know," he said.
Mr Byrne said Allison was in her pyjamas on the couch watching the Footy Show when everyone else was in bed.
"Thereafter we don't know what happened," he said.
"Is it possible that Allison stayed up watching television?
"She would be thinking about what had gone on between her and Gerard. What had been revealed. The rawness had been opened up by that session.
"She writes in her journal (date unknown). 'I don't want to be alone. I'm afraid of being alone and lonely. Maybe because I think I can't handle it. I'm afraid of failing in my marriage and what people will think'.
"What if she decided to go for a walk at that time to clear her head?
"What if because of her depression she takes (an anti-depressant) tablet around 10-11pm?
"That would explain, you might think, her changing into her walking clothes that she is found in.
"Leaves the house, having first replaced Gerard's phone that she had possession of on the charger at 1.48am
"She begins to walk the usual route … then decides to walk a bit further
"Whether or not it's just a further walk or whether she's in some form of disorientation … she keeps walking.
"At some time for some reason she ends up in the river.
"The autopsy report can't rule out drowning.
"It can't rule out a possible fall or jump from the bridge which could have rendered her unconscious and then either drowning or dying in the river."