Gerard Baden-Clay
Gerard Baden-Clay

Byrne tells jury they can't ignore evidence for Crown's sake

GERARD Baden-Clay's lawyer has argued an "unplanned spontaneous eruption of murder caused by emotion with the Footsy Show as the background is just as unbelievable".

Defence barrister Michael Byrne also said any notion his client had killed his wife because of financial pressure was "ridiculous" and that convicting Mr Baden-Clay for his infidelity was not acceptable.

He told the jury they could not make links or ignore certain evidence to fit with the Crown's theory.

"You do not ignore evidence, you don't make excuses for the complete absence of any link between Kholo Creek and the house at Brookfield road because Allison's dead and someone must be punished," he said.

"Our system presumes people to be innocent unless the evidence overwhelms other inferences."

Mr Byrne told Brisbane Supreme Court they should focus on the lack of any violent history in the 14 years Gerard and Allison were married.

"They had gone through together years of her depressive illness," he said.

"It's fair to say, you might think, their marriage and life together was not a passionate union.

"Alison told one of the treating doctors that they had no intimacy for years.

"The picture that the evidence paints … is that there was between Gerard and Allison this companion type relationship - the sexual passion is gone.

"It is true, and I don't shirk from this, many people in the community, maybe one or more of yourselves, may find it abhorrent that a partner in a marriage would be sexually unfaithful to their partner.

"Fair enough, that's a moral judgment, we all have our own compasses in that regard.

"It maybe 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.

"But he is a person who has been unfaithful, not once but more than once, and maybe you would think you find his morals despicable.

"That is a far cry, though, from labelling him a murderer."

Mr Byrne said the Crown put up a motive for the murder on day one - that Mr Baden-Clay wanted to be with Toni McHugh.

"Like the screens or bumps on the night, that's said to be a circumstance, an important factor, in why you would as a jury convict Gerard Baden-Clay of the murder of his wife," he said.

"That he wanted to leave his wife and be with Toni McHugh.

"When each of you … scrutinise the evidence, you'll see clearly that not only was that not the case… but it also emerges that even Toni McHugh knew in her heart that was not the case.

"Whatever you may think of Gerard's morals, you don't use those morals to convict him of this crime."

Mr Byrne said Toni McHugh believed Mr Baden-Clay had pulled July 1 - Allison's birthday - out of thin air as the date he would leave his wife.

He said she admitted nothing ever came of his promises to her and she did not believe he would ever leave his wife

"If she doesn't believe he is serious about this, if she believes he's just picking a date out of thin air because that's what he's always done in the past and will probably continue to do in the future, then why should you as the jury, the deciders of fact, think 'well I know better than Toni, I think this time he would have been serious so he had to get rid of Allison'," he said.

"Not walk away from home, not go and see a family lawyer. But kill her. To be with this passionate event in his life.

"Seriously, Toni McHugh does not and did not believe that to be the case. How could you?"

Mr Byrne said his client had admitted he had been using Toni McHugh, a woman who he had "been dangling on a piece of string".

He said Mr Baden-Clay had calmly dealt with his wife Allison finding out about their affair and did not explode when he broke it off with Ms McHugh and she was throwing things at him.

Mr Byrne said none of the evidence could prove Mr Baden-Clay "out of the blue murdered his wife".

"You might think that if there was to be a trigger, an explosion, some sort of passion rising and tempers fraying, that'd be a pretty good occasion for it," he said.

"There were tears, certainly, but never raised voices. It was done calmly and … dispassionately.

"This speaks to his temperament.

"He's not one to rise to great passion and explode."

Mr Byrne said that did not fit with the Crown theory that Mr Baden-Clay suddenly exploded on April 19, 2012, while talking about the affair that had been raised repeatedly in the past six months since the affair was revealed.

"So if you reject, as I submit you would, any pre-meditated killing or murder on that night, and equally you reject any sudden surge of emotion, passion or explosion, you have also the benefit of seeing Gerard give evidence over days in this court," he said.

"You saw him cross-examined by a very experienced crown prosecutor, Mr Fuller who vigorously put matters to him, making serious allegations including murdering his wife and unceremoniously dealing with the body.

"He still remained calm.

"The only emotion he showed in that witness box … was not when assertions like that which he called absurd were being made but rather when he was reliving parts of his life with Allison and the shock of her going missing.

"That's when the tears flowed, but that's as high as the emotion got.

"There is no evidence to suggest he is of a violent temper.

"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 Footsy Show as the background is just as unbelievable."

Mr Byrne said the Crown's other suggested motive related to the financial pressure Mr Baden-Clay was under and he asked the jury to exercise common sense.

"Is money of this sort, financial pressure, is that a reasonable motive for killing, murdering your wife of 14 years? Money?" he asked the jury.

"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.

"Do you think that person would use money as a motive for murder or have money or financial difficulties 'gee I've got difficulties I might kill my wife?'

"It's ridiculous.

"Leave aside a common sense approach, when you drill down, when you look at the evidence, it does not disclose such financial difficulties, any hardships, any bailiffs knocking on the door?

"It shows a person who is an accountant … he knows a thing or two about figures and his mates … also know their way around books and account.

"Do they say this was financial pressure bearing down upon him? They don't."

Leaves

Allison had six plant types found on her head and clothes - all of which could be found in her Brookfield home's backyard or the church next door.

Only two of them could be found at the site where her body was found.

Mr Byrne questioned why those leaves were not found in the Holden Captiva if that transported her body to the dumping site.

He said police did not notice any obvious cleaning in the car, where a rivulet of blood was found.

Life insurance

Mr Byrne said it was father Nigel Baden-Clay who insisted Gerard and Allison have separate life insurance policies.

He said the man had a background and experience in the life insurance industry.

Mr Byrne said it was Nigel who told his son Gerard he had a duty to inform the life insurance company as soon as Allison's body was found.

Finger nail scratches

Mr Byrne said his client had never attempted to conceal the marks on his face or give any explanation "other than they were shaving scrapes".

"He's the one who called the police to his home on the morning of the 20th of April," he said.

"His face was open for all to see.

"There was no attempt to conceal it."

Mr Byrne said the experts in the trial who equated the marks with fingernail scratches had agreed they could not exclude other possibilities.

He said they agreed there were serious limitations in interpreting injuries from photographs instead of doing an examination in person.

Mr Byne said one expert said the only person who knew how injuries were caused for certain were the people who were present at the time they occurred.

He said it was fortunate Mr Baden-Clay was able to say under oath how those injuries were caused.

"It's my submission you would consider that evidence very carefully … the limitations on the opinions that were expressed," he said.

"At the end of the day you might think these injuries were probably caused by something other than a razor blade."

But Mr Byrne said even if the jury thought that was the case, that was the end of their role in that regard.

He said the fingernail scratches had to be considered among every other piece of evidence.

"It does not prove he is guilty of the charge," he said.

"To recap you would not be satisfied that razor scrapes could be concluded and that would be the end of your consideration."

Too many 'holes' in Crown case against Baden-Clay

THERE are too many holes in the Crown case against Gerard Baden-Clay, his defence lawyer has told the jury.

Barrister Michael Byrne said there were too many gaps being filled with speculation when the missing evidence should be "conspicuous by their absence".

He said essential elements of the Crown case "just did not happen".

"I put it that highly because the evidence is all one way," he said.

"There would either be mud or a clean-up or some other sign but there simply is not.

"It's the absence of those things which loom large."

Mr Byrne used a Powerpoint presentation to show the jury the evidence he believed they should pay attention to.

How did Gerard Baden-Clay kill his wife?

How do you kill in the manner suggested by the prosecution without:

• Causing injuries which would be found upon autopsy, in particular:

- Bone fractures.

- Damage or fracture to the hyoid bone.

- Damage or fracture to the larynx.

- Haemorrhage damage around the hyoid bone and larynx.

• Leaving a crime scene or the evidence of the cleaning up, disposal or wiping down of a crime scene, inside or outside of the house.

- Including the signs of a struggle.

- Despite the fact police attend upon the house within hours of the alleged killing and had unlimited and unsupervised access of the house and surrounds.

• Waking the three children who are in the house at the relevant time during any argument leading up to the killing or during the actual killing.

- It's a small house.
- The house has low ceilings.
- The relevant rooms are depicted in exhibit 180.
- You would expect that noise would travel throughout the house.

• If the killing occurred late on the evening on April 19, 2012, then the deceased must have been dressed into her walking clothes by the defendant, after the killing, as she was last seen (by the eldest daughter) wearing a sloppy jacket and pyjama pants.

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

- If the killing occurred early on the morning of April 20, 2012, when the deceased was already dressed in her walking clothes, it is nearer to the end of the children's sleep cycle, which wold increase the likelihood of the children, or a child, being awoken by sounds of the argument or the sounds which must accompany any struggle.

- If Gerard Baden-Clay had killed his wife in manner suggested by the prosecution why would he contact the police so early on April 20, 2012?

How did Gerard Baden-Clay dispose of the body?

How do you dispose of the body in the manner suggested by the prosecution, without:
• Waking up the children, or a child, either when leaving the house, or returning to the house in the Captiva.
-  Exhibit number 180 depicts the location of the bedrooms of the children
- The garage where the Captiva was parked has no wall on three sides.

• How do you carry a deceased body down the steep embankment, at night, when police officers had trouble traversing the same area during daylight?

• How do you carry a deceased body over a muddy area without tracking mud back to the Captiva?

• If the deceased was dragged then there would be injuries on the body consistent with that.

• If the deceased was dragged then there would be evidence of that at the house or at Kholo Creek.

 Holden Captiva
Holden Captiva Contributed

• How do you do what you are alleged to have done without leaving a crime scene indicative of being at Kholo Creek, in particular:

- Mud or other items in the Captiva.

- Mud or other items on the wheels of the Captiva.
- Mud or other items in or around the house.

- Mud or other items on shoes and or clothing.

- A child waking up and discovering that their parents are not in the house for the period of time, at least 40 minutes, that they must have been gone.

No cause of death

Mr Byrne said the forensic pathologist, nor any other experts, could not determine a cause of death.

He said they could not determine "a place of death or whether the body was moved after death either by tidal movement or by a person".

Mr Byrne said they tried to eliminate other possible causes of death but could not.

"This is his area of expertise," he said.

"He could not determine a cause of death for Allison Baden-Clay.

"He could not exclude a number but, for your purposes, those things are important.

"A person is facing the murder of that woman.

"The cause of death of that person cannot be established and other means of death such as toxicity, drowning or falling from a height cannot be excluded."

No signs of a struggle

Mr Bryne said police could find no evidence of a struggle and no damage inside the house, or in the surrounds.

He said the first police response officer, responding to Mr Baden-Clay's report of his wife Allison missing, looked for blood or signs of violence and could not see any.

"Put all this into your melting pot when you come to consider the case," he said.

"Because what is alleged to have occurred is a violent killing inside that house.

"And yet at 8 o'clock in the morning police arrived and they could find nothing."

Mr Byrne said there was no sign of a clean-up or wipe downs either.

"They looked for it and couldn't find it," he said.

"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."

Screams in the night

Mr Byrne said the 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 other neighours heard screams.

"A deal of evidence was lead as to noises in the night - screams, bumps," he said.

"We sat here for hours listening to people who lived so far off the map that they couldn't identify their house.

"If you were ever going to give that any weight … didn't it just vanish into thin air when Stephanie Apps gave her evidence about her daughter.

"Didn't that just go off the agenda? I haven't heard that since."

Mr Byrne said the news might have told the jury that screams rang out from the murder house but that was just "nonsense".

"The evidence just falls away," he said.

"That puts a sword through any theory of screams or bumps on the night."

Clothing

Mr Byrne said the evidence showed Allison was found under the Kholo Creek bridge wearing her walking gear when her daughter last saw her wearing pyjama pants and a sloppy t-shirt watching the Footy Show on April 19.

"Is the Crown theory that after he had violently murdered his wife, he somehow dresses the body - a dead, inert body," he said.

"If you've ever tried to dress who's child that's fallen asleep or indeed undress … that's not an easy task.

"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.

"This is what Crown set out to prove and told you this was their theory as to what happened."

Mr Byrne said if the Crown believed that theory was too hard, they might suggest Allison went to bed to wear running clothes to save time in morning.

"Or maybe he waits to morning, then violently kills her and rushes her down to the car," he said.

"Do any of those strike you as feasible?"

Mr Bryne said the jury must be satisfied there was no reasonable hypothesis that was not extinguished or so overwhelmed by the Crown theory.

"Why is there no blood anywhere… when the prosecution case is that somehow the body was somehow carried or dragged through the foliage and desposited 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?"

Mr Byrne questioned how all this activity was undetected when the girls' bedrooms were so close and how he would risk his children waking up to find a violent crime scene while he disposed of their mother's body.

He said this led to the Crown case "tumbling down", further noting there was no place to park near the Kholo Creek bridge.

"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 said.

"He then climbs back up that bank, walks through the mud , through the grass and drives the car home and parks it in the car port.

"Do you think such a scenario is even possible?"

 

Baden-Clay jury told: You must be sure

THE jury in the Gerard Baden-Clay murder trial have been told they must not speculate on what might have happened the night Allison went missing.
 

Police photographs of marks on Gerard Baden-Clay's skin used as evidence in court.
Police photographs of marks on Gerard Baden-Clay's skin used as evidence in court. The Brisbane Times

Defence barrister Michael Byrne said his client was not guilty just because he was the last person to see his wife Allison alive and that he was with her on April 19, 2012.

"Does that prove he's guilty? Of course not," he told Brisbane Supreme Court.

"But it's a circumstance.

"The prosecution say that once you add all these circumstances together - he's there on the 19th, she's not there on the 20th, her body is found under a bridge - add all those together and you're satisfied beyond reasonable doubt that he's guilty of murder.

""It's not enough that you think 'okay, that's probably right', it could all hang together.

"We add in the blood in the car and it gives us a bit of a trail that leads to 'that could be right'.

"That's not what your job is, not what our law says.

"What you have to find beyond reasonable doubt is that the prosecution theory, which you may think has waxed and waned throughout the course of evidence, is one that is the only rational inference that can be drawn from the circumstances.

"If there is a reasonable possibility consistent with innocence, it's your duty to acquit.

"That follows from the onus that is on the prosecution.

"These things are so important when you are considering your role which is the central and important role in this trial.

"You can draw inferences, you can make deductions, you can draw conclusions but again you're not to guess.
"You cannot and should not join the dots if there is no evidence to join those dots.

"You have to find that there is evidence to support the inference that you draw; there is real and substantial evidence that would prove the linkage between the various aspects of the circumstantial case."

Mr Byrne used the example of Allison's blood found in the back of the Holden Captiva to explain inferences.
He said the jury could only use that draw inferences to Mr Baden-Clay's guilty if it was " the only rational explanation" was that that blood "resulted from Gerard Baden-Clay using that vehicle to transport Allison's body".

"You'd have to find that's the only rational reason for the blood being there," he said.

"You can't speculate 'gee that's a tempting scenario' unless there is evidence.

"If there is an inference that is reasonably open which is adverse, that is against the interests of Gerard Baden-Clay, and another one equally in his favour, that is not showing him to be guilty, then part of your duty and an essential part of your role is to only draw the adverse inference if it  so overcomes the other inference as to leave no reasonable doubt in your mind.

"There's blood found in the Captiva. But there is no blood found anywhere else in the car port where the Captiva was.

"There's no blood found in the car port, in the garage, along the side of house, along the back patio, there's no blood in the house.

"How do you join those dots?

"Bear in mind this is un-ageable blood.  No one can say when it came to be put there, whether it was someone injuring their hand, a finger.

"Does the inference so overcome any other possible inference so as to leave no other reasonable doubt in your mind?

"I'm not pretending for a moment it's a simple task, it's a complex one but it's a vitally important one.

"You are the members of our community entrusted with that role.

"The onus is beyond reasonable doubt.

"It's not on the balance of probability, it's not more likely than not, it's not enough to say something probably happened here.

"If you're going to rely upon matters to convict any person of any offence, here it's an offence of murder, but before you can convict anyone you have to be satisfied that the evidence establishes that person's guilt beyond reasonable doubt.

"Not with perhapses, not with maybes, not with probables."

 

Baden-Clay trial: 'This is no play, it's a murder trial'

A JURY has been reminded they have not been watching a soap opera or a whodunit play as Gerard Baden-Clay's defence lawyer told them to concentrate on the evidence before them.

Barrister Michael Byrne told Brisbane Supreme Court there was no direct evidence to prove Mr Baden-Clay murdered his wife Allison.

He said there were no eye witnesses and no admissions which meant the prosecution case against his client relied solely on circumstances.

Mr Byrne said the jury might think the prosecution theory had "waxed and waned" throughout the evidence and warned them not to link all the dots together.

He said jurors must assess each piece of evidence and decide if the only "rational inference" was that Mr Baden-Clay murdered his wife.

Mr Byrne said the jury had alternate verdicts of murder or manslaughter to consider - noting they had to find Mr Baden-Clay intended to cause death or grievous bodily harm if they convicted of the higher charge.

Addressing the jury with his closing submissions first because his client elected to give evidence, Mr Byrne reminded the jury to ignore media coverage of the event.

"This is … a murder trial," he said.

"That may sound odd to say because if you have been following what's been happening outside of this courtroom, you might be mistaken for thinking it's a great big media event.

"It's not that. Nor is it a soap opera in which various titillating elements are brought out for the amusement of the media.

"And it is not a whodunit play.

"Your task as the jurors is to assess the evidence, to do it coldly, by that I mean dispassionately and objectively.

"It is not to be your own detectives, do your own investigations or to be caught up in the hype that has been in the various forms of media over the last three weeks."

Mr Byrne said his client was charged with the most serious crime one can be charged with and the jury's job was important.

"That is murder," he said.

"The prosecution have set out to prove beyond reasonable doubt that he killed his wife of 14 years, the person with whom he had three young daughters.

"The prosecution case, as you heard opened some time ago, was that he somehow violently ended her life in the very home that they shared with their three young daughters.

"This man, Gerard Baden-Clay, who on the evidence you have heard has never displayed violence, whose acquaintances, friends, family and children have never seen to be violent or indeed to ever argue with his wife, the Crown say on that night in April, 2012, he violently murdered her.

"This is a man who, you've heard what he's done in the community, and you've heard one of the first witnesses called - a sergeant of police, Murray Watson - who told you he'd known Gerard for quite a few years and he regarded him as one of the nicest guys in the world.

"Somehow that person has murdered his wife, done so violently and then disposed of the body."

Mr Byrne said the jury might think those things were critical to the Crown case.

He asked them to look at what they did know about Mr Baden-Clay.

"What you've heard in evidence, that's what this trial and your verdict is all about," he said.

"It's about the evidence, it's not about what the media have said, things that have been raised and swept away during the course of the trial.

"Gerard Baden-Clay is a person who you've heard even when confronted by an angry and abusive Ms Toni McHugh, who was throwing things at him when he told her the affair was finished, he didn't lose it, he didn't become violent.

"But the prosecution case is that somehow and some way erupted into violence on the night of April 19.

"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.

"It's not a favour to him, it's not any type of merciful verdict.

"In fact you may not feel terribly sorry for him. Some of his foibles, some of his bad qualities have been exposed in this trial.

"It's not about feeling sorry for anyone, not him, not Allison, not the girls.

"It's whether the evidence satisfies you of reasonable doubt of his guilt.

"And in my submissions it does not."



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