The Murder of Allison Baden-Clay

by David Murray

  Police would trace the threatening call to a public phone box in Western Australia before the trail went cold. Drama seemed to follow Gerard wherever he went.

  The extra time would prove useful to police, who thought they had made a major breakthrough that morning. In the Electronic Evidence Examination Unit at police headquarters, investigative computer analyst Neil Robertson was re-examining data retrieved from Gerard’s iPhone.

  When Allison had first gone missing, Robertson had used a forensic tool called the Cellebrite Universal Forensic Extraction Device (UFED) to download data from Gerard’s seized phone. He used a separate application called Cellebrite Physical Analyser to make the data readable. As luck would have it, a new version of Physical Analyser had just been released.

  At 8.30 am on the day of the hearing, Robertson used the new version to review the data from Gerard’s phone, hoping to pick up something he had missed before. Spectacularly, he did. It was showing Gerard had made a previously unknown FaceTime call to his father, Nigel, not long after midnight on the night Allison went missing. FaceTime is an Apple product that allows video calls between devices such as iPhones and iPads. FaceTime calls are made over the internet and do not appear on standard call records. The pivotal call appeared to have lasted 1 minute and 23 seconds at 12.30 am on Friday 20 April. Gerard had told police he was asleep from 10 pm onwards. The call was showing as a deleted entry, suggesting Gerard tried to conceal it.

  Robertson fired off an email to Detective Sergeant Peter Roddick from Homicide, at 11.53 am – less than three hours before Gerard’s bail hearing was to start. Roddick hastily typed up a new affidavit to add to the police bail objection, detailing the last-minute advice from the computer analyst.

  That afternoon – while the courts complex was shut down – police conducted a raid on the home of Nigel and Elaine Baden-Clay. Detectives from the Major Incident Room arrived at the Kenmore home just after 5 pm with a warrant to search and seize any Apple products. Gerard’s parents had been out for a walk with their dog and returned to find the police on their doorstep. Elaine curtly asked the detectives to remove their shoes before entering. They left empty-handed. The couple did not own an iPhone or iPad.

  Later, Elaine would recount handing police the fruit bowl from the dining room table as the only apple product in the house.

  Gerard’s new bail hearing started afresh at 10 am on Friday 22 June 2012. Justice David Boddice stepped in as a replacement for Justice Martin, who had other commitments. The new hearing began with Gerard’s barrister Peter Davis again seeking to portray the case as weak.

  Davis said there was no known cause of death, no time or even date of death, no real evidence of the place of death, no sightings of Gerard at the bridge where Allison was found, and no sightings of him outside the family home at all that night.

  ‘This is one of the strongest applications one will ever see for bail where there’s a murder charge,’ Davis told the court.

  Davis added Gerard had three children, a real estate business, had not tried to flee during the high-profile investigation and faced a likely two- to three-year delay before trial.

  ‘For a period of some two months, my client is pursued and pursued and pursued and pursued by the media, and it’s constantly reinforced to him that he is the prime suspect, he’s the person who everybody thinks has done it. He doesn’t take off. He doesn’t leave over that period.’

  Crown prosecutor Danny Boyle conceded some of the evidence might not make it to trial, but said for a bail hearing the judge needed to be informed of the full circumstances.

  ‘The case against him, in the combination of circumstances, is quite compelling,’ Boyle said.

  Justice Boddice adjourned the hearing until 1 pm for his decision. Bail on murder charges was rare.

  When court resumed, Justice Boddice began by saying it was particularly difficult to assess the strength of circumstantial cases because ultimately it would be up to a jury to interpret the evidence. But he said the case was far from weak: ‘Whilst it is circumstantial, there are a number of factors which, if accepted by a jury, would represent a strong case.’

  The judge went on to outline the key points of the Crown case for the first time. Avid court watchers goggled as the evidence was spelt out: the scratches on Gerard’s face; the iPhone being plugged into a charger at 1.48 am; Allison’s blood in the Captiva; Gerard’s affair with Toni McHugh; his promises to leave his wife by 1 July; the financial pressures and the haste to claim his wife’s life insurance of almost $1 million. Then there was the looming clash between Allison and McHugh at the real estate conference the next day.

  Things did not look like they were swinging Gerard’s way as the judge worked towards his conclusion. The murder charge and the mandatory life sentence it carried were powerful incentives for Gerard to flee, Justice Boddice said. And although he had concerns about holding someone in custody at length without a conviction, the possibility Gerard would run was too great. Boddice ruled Gerard would have to stay in prison.

  Devastated at being denied bail, Gerard was considering ditching his defence team. In the quest for new advice, a flurry of calls and text messages were exchanged between Olivia Walton and some of Queensland’s top lawyers. Solicitors Michael Bosscher and Tim Meehan from Bosscher Lawyers drove out to Arthur Gorrie Correctional Centre to visit Gerard on 2 July 2012. The pair were representing Daniel Morcombe’s accused murderer, Brett Peter Cowan.

  Something about Allison’s story had always galvanised friends, and often complete strangers, to act. Roni Johnson had never met Allison but both had three children and both lived in Brookfield. Allison’s disappearance had resonated with Johnson immediately. She had known Allison’s cousin Jodie Dann growing up and they had mutual friends. At Allison’s funeral, Johnson ran into Brookfield United Cricket Club president Mike Kaye, who said a few club members were trying to arrange a fundraising match against firefighters and SES volunteers involved in the search. Johnson said she might be able to help.

  She envisaged a low-key event with a raffle. Before she knew it, there was a media frenzy and she was bombarded with donations. Posters had to be constantly updated with the new attractions and prizes on offer. The match was held at the Brookfield Showground on 24 June 2012, less than a fortnight after Gerard’s arrest. It had turned into a family fun day, with a jumping castle, face painting and animal petting zoo. Everything was donated. The little cricket match raised $50,000 for Allison’s daughters and became an annual event.

  Herbarium

  June 2012

  The Queensland Herbarium at the Brisbane Botanic Gardens offers a remarkable, free, public service. Bring in a sample from a plant – any plant – and the Herbarium’s experts will identify it. An assortment of amateur botanists, green thumbs and gardening retirees regularly make their way to the front counter with leaves, branches and fruit in hand for help in solving botanical mysteries. Sometimes frantic parents arrive to check on plant life swallowed by their adventurous children. At other times it’s developers, who pay corporate rates for checks on their land. Around 4000 identifications are conducted a year. In mid-2012, the Herbarium had high-priority clients calling – police investigating the death of Allison Baden-Clay.

  Acting Inspector Ewen Taylor, the Metropolitan North police region forensic coordinator, arrived at the Herbarium with an armful of botanical exhibits on 27 June 2012, five days after Gerard was denied bail. They were the very last forensic items Taylor had to drop off for examination from Operation Kilo Intrigue. Almost two months had passed since the discovery of Allison’s body on the banks of Kholo Creek. Taylor wanted the Herbarium to examine plant material from clothing, shoes and various cars. At the top of his list of priorities was an examination of plant material recovered from the Captiva, which police believed Gerard had used to transport Allison’s body. Leaves and grass recovered from tyres, the undercarriage and inside could have yielded valuable clues linking the vehicle to Kholo Creek. There were also three
jars containing leaves and bark retrieved from Allison’s body during the post mortem, but Taylor hadn’t given them much thought. Later, he would reflect on how easily he could have missed one of the most important breakthroughs in the investigation.

  With other staff away or unavailable, Herbarium director Dr Gordon Guymer volunteered to personally handle the request. The short, sprightly 58-year-old Herbarium boss was the son of potato farmers from northern New South Wales. After earning a scholarship to university he excelled in botany, perhaps because of his upbringing on the farm. Impressively credentialled, he had been a botanist with the Queensland government since 1980. Before he stopped counting, he had identified more than 100 new species of plant. It was the kind of job you could never get away from. Once, in Brazil for a seminar, he was at the base of the Christ the Redeemer statue and glanced down to recognise weeds abundant in Queensland. His work was always all around him.

  Guymer had worked with the police before and was fully aware that, internationally, botany has long played a significant role in criminal investigations. One of the most notable early cases was the 1930s trial of Bruno Richard Hauptmann for the kidnapping of aviator Charles Lindbergh’s 20-month-old son, Charles Junior. A US wood expert, Dr Arthur Koehler, provided intricate evidence linking a homemade ladder used in the kidnapping to wood taken from Hauptmann’s attic.

  The highly professional Guymer put aside his normal tasks and began examining the Baden-Clay material. In a small laboratory on the Herbarium’s second floor, wearing his white lab coat and with the acrid smell of chemicals in the air, he methodically moved through the police exhibits. Guymer noted there was plant material from Adidas and Asics shoes, a hiking boot, and vacuum cleaner bag. More plant material was recovered from a car’s suspension system, driver’s side step bracket, tyre tread, a hose near the rear passenger’s side wheel and foot wells.

  The process extended over days. Towards the end of it, Guymer picked up the three 500-millilitre bottles containing leaves and bark. Emptying the first of them, he found a tangle of hair, plant material and maggots, preserved in alcohol. Looking at snippets of the material through a stereomicroscope, Guymer could identify some of the plant species as soon as he saw them. For those he was unsure of, he had an enormous reference library at his fingertips. Below the lab, the Herbarium’s first floor housed a collection of 820,000 botanical specimens. The eminent botanist shuttled between the collection and his laboratory upstairs, identifying the species from Allison’s hair and body.

  From the plant evidence, delivered to him almost as an afterthought, Guymer was building towards a powerful deduction. But as new lines of investigation were emerging, others were disintegrating.

  Glitches

  The walls of boutique Gold Coast firm Jacobson Mahony Lawyers are lined with images of bushranger Ned Kelly. An armour-plated villain, Kelly was sentenced to death in 1880 for the murder of Constable Thomas Lonigan. A crowd of 5000 people descended on Melbourne Gaol for his execution. The legal firm chose Kelly as a decorating theme not because he was one of Australia’s most famous criminals, but because he was a man who could have done with a good lawyer. At his trial, it was reported, Kelly had a heated exchange with the presiding judge, Redmond Barry, about whether he would have been acquitted if his inexperienced and underprepared lawyer had argued self-defence.

  ‘I wish I had insisted on being allowed to examine the witnesses myself. If I had examined them, I am confident I would have thrown a different light on the case,’ Kelly reportedly said before being sentenced to hang.

  Outlining ‘Our Philosophy’ on their website, Jacobson Mahony Lawyers explained: ‘Our offices are adorned with Ned Kelly prints to remind us that every person is entitled to skilled representation, a fair and just hearing, and above all, is innocent until proven guilty.’

  On 4 July 2012, almost two weeks after Gerard was denied bail, a fax arrived at these very offices. Crown prosecutor Danny Boyle was advising Gerard’s lawyers of a significant mistake in information provided to the court during the bail hearing. Boyle wrote he was sending as an attachment a new affidavit from police computer analyst Neil Robertson with the details: ‘The information in the new affidavit confirms that there is no evidence of a “FaceTime” call between the phone of Gerard Baden-Clay and the phone of Nigel Baden-Clay on the morning of 20 April 2012.’

  Robertson explained in his affidavit how the new version of the Physical Analyser software used to examine the contents of Gerard’s phone had misinterpreted a deleted call. In simple terms, the FaceTime call between Gerard and his father was a furphy – the result of a glitch in the system used to extract data from Gerard’s iPhone. The apparently incriminating call had never happened – and had never been possible in the first place. Gerard had an older model iPhone 3GS, which did not have a forward-facing camera and did not allow FaceTime calls – something police had not taken into account when initially analysing the data. And Nigel did not have an iPhone at all. In the rush to add material to the bail documents, the wrong information had been presented to the court and reported in the media.

  Boyle proposed going back to Justice Boddice to correct the error. Gerard now had some ammunition to attack the police investigation. It was an embarrassing misstep and it was not the only piece of seemingly incriminating evidence that was about to fall apart.

  His lawyers were working to refute another significant piece of the electronic evidence, which also related to Gerard’s iPhone. Police said he had Googled ‘self incrimination’ minutes before phoning police to report Allison missing on Friday 20 April 2012. It didn’t look good, particularly as Gerard had called in a lawyer and refused to give a formal statement that same day. However, since being arrested Gerard had said there was an innocent explanation – he had looked up the information days earlier while watching TV legal drama The Good Wife.

  Jacobson Mahony Lawyers’ clerk Kurt Fechner found a TV guide from The Courier-Mail that listed the programs aired on Wednesday 18 April – two days before Allison was reported missing. The guide confirmed The Good Wife started at 9.30 pm on Channel 10. Fechner found a DVD of the series and went to that night’s episode, Another Ham Sandwich. Watching it to the end, he counted three references to ‘taking the fifth’. Gerard told his lawyers he was watching the show at his Brookfield home with his parents when one asked, ‘What does that mean – taking the fifth?’ He used his iPhone to search for a definition of the term at 10.08 pm. One result from a Google search of ‘taking the fifth’ is a Wikipedia page on self-incrimination – the term apparently searched on Gerard’s phone shortly before he reported Allison missing.

  Fechner was convinced there was an explanation for the apparent two-day disparity between searches for ‘taking the fifth’ and ‘self incrimination’. He began researching Apple forums online and found iPhone searches automatically reloaded pages when the browser is opened, after previously being closed. Bingo! When Gerard had used his phone to search for the Queensland Police Service website on the morning Allison went missing, there had been an automatic reload of his innocuous search days earlier. This one, it seemed, would have to be filed under ‘truth can be stranger than fiction’.

  Buoyed by the defeat of two planks of the police case – the FaceTime call and suspicious searches on his iPhone – Gerard started gearing up for another run at bail.

  Herbarium II

  Dr Gordon Guymer separated the specimens before him by their species. He’d quickly identified all of the botanical material police had recovered from Allison’s hair and body. Many home gardeners would have been familiar with the species Guymer identified, though few could reel off their scientific names, as he could. He tallied the contents of the first bottle – seven large, intact leaves of crepe myrtle (Lagerstroemia indica); three leaflets, and a tendril with claw, of cat’s claw creeper (Dolichandra unguis-cati); seven frond parts, or pinnae, of fishbone fern (Nephrolepis Cordifolia); bark and leaves of eucalyptus; a leaf from a Chinese elm (Celtis sinesis) and a lea
f from a lilly pilly (Acmena smithii). In the second and third bottles, Guymer identified more fishbone fern fronds and woody plant stems.

  The identification process was only the first phase of Guymer’s work on the case. Now that he knew what they were, he had to work out where the leaves had likely come from. On Friday 13 July 2012, a fortnight after dropping off the exhibits, police forensic coordinator Ewen Taylor returned to the Queensland Herbarium, picked Guymer up and drove him to Kholo Creek Bridge. Indooroopilly CIB officer in charge Mal Gundry and Homicide squad detective Gavin Pascoe met them there.

  Guymer was looking for the six species of plant he identified in the lab. Crepe myrtle, growing up to 6 metres tall, was a favourite of suburban gardeners for its attractive displays of red, white and lavender flowers in summer. In autumn, the leaves dropped off and the trunk shed its bark to produce a smooth, twisting surface with its own shades of pink, grey and brown. Lilly pilly plants were another suburban favourite, often used to create hedges. Fishbone fern, native to Australia, needed little encouragement to develop into dense clumps and was common around Brisbane homes. Cat’s claw creeper, popular in older-style gardens, was an American vine so aggressive that it had been declared a weed of national significance in Australia and banned from sale. It produced pretty yellow bell-shaped flowers but smothered native vegetation. Chinese elm was another declared pest in Queensland that rapidly spread through backyards, along creeks and in bushland. Eucalypts, the great Aussie gum trees, were an integral part of the landscape in both backyards and bush.

  Taking his time, Guymer searched 50 metres either side of the bridge. From his years of working with south-east Queensland flora, he instantly recognised most of the plants growing in this area: lantana, one of Australia’s worst weeds; billygoat weed, a garden escapee; the castor oil shrub, whose seeds and large leaves contain toxic ricin; the edible common raspberry; native sandpaper fig, named for its coarse leaves; and brown kurrajong, which once provided bark fibre for Aboriginal people to make nets for fishing and hunting. Of the six plants Guymer identified in the lab, he could find only Chinese elm and eucalypts in the vicinity. Crepe myrtle, cat’s claw creeper, fishbone fern and lilly pilly were nowhere to be seen. Guymer and Taylor went around the corner to Little Ugly Creek off Wirrabara Road, and then to the Scout campsite in Bunya Street, and again could not find any of the missing four plant species.