The Murder of Allison Baden-Clay

by David Murray

  Indooroopilly CIB detectives Cameron McLeod and Chris Canniffe and Homicide detectives Peter Roddick and Gavin Pascoe were the final witnesses at the committal hearing. The detectives, under cross-examination, variously weren’t able to shed any light on who told Toni McHugh of Gerard’s affairs with other women. They were also unaware of any police telling Gerard he could not participate in the search for Allison, as he had claimed.

  The public gallery was packed to the rafters for Chief Magistrate Brendan Butler’s decision. In the end, it was a mere formality. But before Butler could hand down his ruling, Gerard’s barrister Peter Davis stood to announce that although his client ‘vehemently denies’ the charges, he consented to being committed to trial. It was all theatrics. Butler hardly needed Gerard’s consent.

  For six days, Gerard had stayed in the far back corner of the dock to remain out of view of those in the court. When Butler asked him to stand for his decision, Gerard again hung back in the rear corner. Butler ordered him to step forward into plain view before continuing: ‘I’m of the opinion the evidence is sufficient to put the defendant on trial on the offences charged.’

  Asked if he had anything to say, Gerard replied: ‘I am not guilty, Your Honour.’

  At the front of the court building, Olivia Walton was fighting in her brother’s corner, reading a prepared statement in front of TV cameras: ‘I still believe that my brother Gerard is an innocent man. I will continue to support him throughout this process. One day the truth will be revealed. Gerard is an innocent man.’

  There was still time for Gerard to reconsider his story. People in situations like his are usually advised to consider pleading guilty to a lesser charge of manslaughter. He might argue, for example, that Allison had died accidentally in a fight – perhaps they had a heated argument. There was certainly plenty for the couple to clash over. It would then be hard for the Crown to prove murder, an offence that requires an intent to kill. A guilty plea to manslaughter would likely see him out on parole in eight years. A murder conviction, on the other hand, would carry a minimum 15-year non-parole sentence.

  Gerard’s story wasn’t changing. He was, however, thinking about changing his legal team. Having been lawyer-shopping via Olivia immediately following his arrest, he now dropped solicitor Darren Mahony, who had been advising him since the day Allison was reported missing. He would be replaced by solicitor Peter Shields, a former detective who had spent 14 years in the Queensland Police Service, including three in Homicide, before changing teams. Shields had never shied from a good fight – in his legal career and on the field as a former first-grade rugby league player. In the 1990 Brisbane Winfield Cup grand final, as a winger for Valleys, he scored the first try but was also at the centre of a brawl described as the worst in a decade of finals. Dark-haired with a light, salt-and-pepper beard, Shields had convinced Gerard he could take the fight up to the prosecution.

  Barrister Peter Davis SC was also off the case. Gerard decided to go to trial with Michael Byrne QC, who regularly worked with Shields. Byrne had been a barrister since 1977 and was formerly Queensland’s Deputy Director of Public Prosecutions. He was the state’s most experienced prosecutor when he quit in 2001. The grey-haired silk had a calm and dignified presence and air of authority in court.

  A tale of two husbands

  A few weeks before Gerard-Baden Clay was to stand trial, I found myself watching a YouTube clip of his only TV interview. Alyshia Gates, the journalist who waited outside his parents’ Kenmore home early one morning and managed to catch Gerard and his sister leaving the house, had put herself in the right place at the right time. She ended up in the running for a Logie Award for Best News Report for the snatched interview.

  My gut was telling me Gerard deserved an award of his own for his performance that day. His quavering voice didn’t ring true, and he seemed anxious to wind up the interview. I wondered what a body language expert would make of it all. On a whim I decided to ask one.

  Joe Navarro is a former FBI agent, lecturer and author. He spent 25 years at the Bureau, and helped set up the elite Behavioural Analysis Program, made famous by a host of fictional works such as blockbuster movie Silence of the Lambs and the TV series Criminal Minds. A specialist in non-verbal communication, or body language, Navarro retired from the FBI in 2003 and has since been teaching, writing and consulting. A chance meeting in 2005 led to an unusual sideline coaching poker players. Professional poker has become a lucrative and competitive field, and players are always looking for something to give them an edge.

  There are a couple of well-known ‘tells’, or signals you may be lying, in poker, and players have found ways to counter them. Pupils dilate during lies, so many players have taken to wearing sunglasses. A hard swallow indicates discomfort, so players have taken to wearing scarves. Navarro offers tips on ‘reading’ less obvious tells in his books, Read ’Em and Reap: A Career FBI Agent’s Guide to Decoding Poker Tells and 200 Poker Tells. He has also written guides for police on conducting interviews and spotting signs of deception. At 61, the prolific author was still very much in demand.

  Without expecting too much, I dashed off an email to the address listed on Navarro’s website. I briefly outlined the case and asked if he perhaps had time to take a look at the news clip. Just 13 minutes later, a reply pinged into my inbox from the other side of the world. It was 7 pm at Navarro’s home in Tampa, Florida, but he had replied almost immediately, agreeing to take a look.

  Later, at night in Brisbane, another message from Navarro popped up in my inbox: ‘Are you on Skype?’

  I rushed to the computer, began downloading and installing the program, raced to the bedroom to throw on a fresh work shirt and sat down in front of the computer screen in my smart shirt and rumpled pyjama bottoms.

  I needn’t have worried too much. Navarro was doing up his tie as we spoke, the living embodiment of the saying: ‘If you want something done, ask a busy man.’ He explained he initially watches clips such as Gerard’s interview with the sound off, to pick up on non-verbal cues only. If anything looks odd or indicates discomfort, he returns to that section of the clip and turns the volume up to see what was being discussed at that point.

  In Gerard’s case, Navarro noted a ‘hard swallow’, indicating discomfort, after Gerard said he trusted police were ‘doing everything they can to find my wife’ and just before saying, ‘We just hope she will come home soon.’

  The lack of tears, Navarro said, was not an issue. ‘There are behaviours that we demonstrate when we’re devastated that go beyond tears.’ Touching the neck and biting the top lip are two of these – neither of which Gerard did.

  Navarro was also concerned by Gerard’s apparent anxiety to end the interview – he walked away after a few minutes, leaving Olivia to make a short plea for public information to find Allison: ‘She’s there pleading for assistance to find her sister-in-law and he just walks away. We call that distancing. It’s not like he was being hammered [by media]. That walking away, that just reeked. People that are genuine are running into the house grabbing one more photograph to show to the public to say, “This is how she looks with her hair coloured; this is when it’s clean; this is when it’s dirty; this is one after work. It’s everything they can do to help find this person.”’

  While nothing definitive could be read into such a short clip, Navarro explained it thus: ‘When I look at cases like this, I say, does their presentation put things to rest for me or does it make me want to dig deeper. This one, definitely I want to dig deeper.’

  After the conversation with Navarro ended, I pondered his remark that the genuinely devastated often bit their upper lips. Biting the bottom lip displayed anxiety. Biting the top lip was devastation.

  I went back to YouTube and searched for clips of Tom Meagher. It seemed an obvious comparison and revealed a tale of two husbands. Meagher’s wife, Jill, vanished after a night out with friends in Melbourne in September 2012. It occurred just three months after Gerard Baden-Clay had b
een charged with murdering the wife he reported missing. As initial reports about Jill’s disappearance became public, a few cynics eyed her husband with suspicion. But Tom was an open book, throwing himself in front of the media in a constant push to keep his wife’s face on TV and in the newspapers. Five days after she disappeared, serial rapist Adrian Ernest Bayley led police to her body. He was sentenced to life imprisonment in June 2013.

  The many clips of Tom’s constant pleas for help to find his wife contrasted jarringly with Gerard’s single, reluctant media appearance. The videos showed Tom constantly biting his top lip as he answered question after question about Jill. Like a punch-drunk boxer, he stood in front of the media pack until they ran out of questions. He never took a backward step, never tried to end an interview early. Asked by one journalist what his plans were, he replied: ‘Well, we’re still doing loads of postering, a Facebook campaign and Twittering – all that stuff. But I’m doing loads and loads of interviews and media stuff. I just want to get as much out there as possible.’

  Keeping the media spotlight on his missing wife and pleading for information was just about the only thing Tom Meagher could do and he did it zealously. It fitted with Navarro’s assessment that relatives of the missing were generally media-hungry, not media-shy as Gerard had been – even turning down a police request to front a public appeal for information when Allison was missing.

  Trial begins

  A month out from Gerard’s trial, prosecutors invited Allison’s family to a private meeting to brief them on what to expect. The family had been getting to know Consultant Crown Prosecutor Danny Boyle, who had been on the case since the start. Boyle had launched his legal career 25 years earlier. Tall, with a distinctive shaved head, he had an easygoing and friendly manner, perhaps best described by the adage, ‘You catch more flies with honey.’ For the trial, he would be working side-by-side with Todd Fuller QC, a bookish, tactical prosecutor who held the third most senior role in the Office of the Director of Public Prosecutions. One rung above Fuller was the Deputy Director, Michael Byrne QC, who had prosecuted Brett Cowan for Daniel Morcombe’s murder earlier that year. It was fortunate, for clarity more than anything else, that Byrne was not involved in the Baden-Clay trial. Had he been, it would have resulted in the confusing scenario of having three Byrnes in court – Michael Byrne for the prosecution, Michael Byrne for the defence, and John Byrne as judge.

  Only on the biggest of cases would two senior prosecutors be assigned, and both were present for the meeting with Allison’s inner circle – Priscilla, Geoff and Ashley Dickie, Don Moore, Jodie Dann, Kerry-Anne Walker and a Queensland Homicide Victims’ Support Group representative. Fuller outlined the game plan. He would start with the discovery of Allison’s body at Kholo Creek Bridge, then go backwards in time to explain how she got there. The most recent high-profile murder prosecution in Queensland was that of Daniel Morcombe’s killer, Brett Peter Cowan. In that instance, Daniel’s parents, Bruce and Denise, were called as the first witnesses, to allow them to sit in court for the remainder of the trial. Fuller explained he would be taking a different tack. His first witnesses would be the people who found Allison. He told Allison’s parents his strategy was to keep the case as simple as possible. He did not want the trial sidetracked, or jury confused by tales of Gerard’s behaviour in the distant past, no matter how appalling. The evidence he presented had to be narrowly focused. It was going to be difficult for the family, who knew much more than Fuller planned to present to a jury at trial.

  Gerard’s trial finally got underway at the Queen Elizabeth II Courts of Law on Tuesday 10 June 2014, after the Queen’s Birthday long weekend. The court on level three fell silent as Justice John Byrne entered at 10 am. White haired with a matching beard, the 65-year-old judge had a presence that commanded authority. Justice Byrne’s associate formally called the case for trial, announcing ‘the Queen against Gerard Robert Baden-Clay’. Asked to enter his plea to the single charge of the murder of his wife, he answered in a firm, clear voice, ‘Not guilty, Your Honour.’

  The next big question for Gerard’s trial was how long it would take to select a jury. In rare cases of immense publicity, jurors could be asked about their impartiality. Justice Byrne had ruled the jury would be asked three questions: Whether they or relatives lived in various areas in the western suburbs, including Brookfield, at the time of Allison’s disappearance; if they had attended a fundraiser or donated to any fund set up in connection to the case; and whether they had ever expressed an opinion about Gerard’s guilt or innocence. Answering yes to any of these did not automatically exclude potential jurors, which was just as well, as some observers wondered whether the court could ever find 12 jurors and three reserves who hadn’t expressed a view on Gerard’s guilt or innocence.

  One by one, potential jurors were called into court. If they made it to the witness box and the bailiff started reading the affirmation or oath, they were through to the jury. About a dozen people had to turn and walk out again when the defence called ‘challenge’ or prosecution called ‘stand by’. But in less than an hour, a jury of 15 had been chosen. Prosecutor Danny Boyle read aloud the names of 77 witnesses to be called, and the jury was asked if there was any reason they could not serve impartially. None raised their hands, and they were sent out to answer the three questions.

  Two women admitted they had expressed views on Gerard’s guilt or innocence. Defence barrister Byrne wanted to ask the jurors what their views were, however Justice Byrne said the important thing was whether the jurors believed they could be impartial – the mere fact they had expressed a view was ‘scarcely surprising’. Both jurors were brought back individually, and each asked if they could reach a verdict with an open mind. Both said they could.

  ‘I don’t think I would’ve sat here this long so far and been through what the judge has said this morning if I didn’t think I could,’ one replied. ‘Also, the nature of my job – I am a scientist. So I would prefer with any hypothesis to actually see it proven first.’

  Byrne said the defence would not challenge the women, and the jury selection was complete. Seven men and five women would decide Gerard’s fate, with three women reserves. Justice Byrne’s instructions had a modern flavour, with warnings for the jury to stay off Twitter, Facebook, YouTube, blogs and the internet in general when it came to the case. He told the jury to ‘pay careful attention to the evidence and ignore anything you may hear or read about the case out of court’ including the inevitable barrage of media reports.

  ‘Such reports tend to be confined to some matter thought to be newsworthy. Such a matter may well be of little or no significance in the light of the whole of the evidence,’ he said.

  With the jury selection formalities complete before lunch, Allison’s family released a brief statement requesting privacy.

  ‘As a family we would like to thank the Australian media for the respect you have shown us over the past two years during what has been the most devastating period of our lives … We ask that you respect our privacy and our decision not to grant interviews and refrain from photographing or filming the children.’

  Solicitor Peter Shields had been trying to cultivate some goodwill for the Baden-Clays since taking over the case. At a pre-trial Justice Department media briefing, Shields asked journalists to leave Gerard’s family alone during the trial. He added: ‘These are good people.’

  Outside court in the lunch break, Nigel and Elaine Baden-Clay and Olivia and Ian Walton gathered behind Shields as he read out a prepared statement: ‘The defence and my client’s family will not be making any statement to the media or answering any questions asked by the media until after the verdict. I also ask the media to respect my client’s family as they attend court in support of Gerard.’

  After lunch, the trial moved to floor 5, Court 11, where it would remain for the rest of the proceedings. To cater for the expected public interest, live footage of the trial was also being beamed onto screens in Court 17, one floor above, an
d to a media room on floor 10. In the main court, there was some jostling for the 48 public seats. Allison’s family and friends took out the group of 15 seats on the right and also some of the 33 seats on the left. Geoff and Priscilla Dickie were staying away until they gave evidence, and would rely on family to update them at the start of the trial. Don and Julie Moore and Jodie Dann took a seat in the front row. Helen Wilson, Allison’s friend who had been at the front of the line every day at the committal, took a seat in the second row. The Baden-Clays set up camp in the front row on the left, behind the dock, where they could be closest to Gerard.

  Nicest guy in the world

  Allison was lying on her side, as though asleep. A closer inspection revealed the reality. Todd Fuller was describing kayaker Daryl Joyce’s grim discovery on his gentle paddle along Kholo Creek. Police rappelled from the bridge. Hoisted her up. It was just how Fuller told Allison’s family he would start, but it was still impossible to prepare for the graphic photographs that flashed up on the screens in the court as he gave his opening address. Tragic images of Allison on the muddy creek bank, which lodged in your memory and reappeared when you closed your eyes. An eerily unnatural pose, with her jumper caught up around her arms and pulled over her head. There was no escaping from them in the courtroom. Television screens hung from the walls on either side of the court and sat on the desks in front of the jury and on the bar table. There were even small screens at Gerard’s feet in the dock.

  Gerard showed no sign of being rattled by the succession of harrowing images of his dead wife, glancing nonchalantly towards the biggest screen on the right of the court.