by David Murray
The prosecutor couldn’t have been happy when McHugh played down her expectations. But he moved on to Thursday 19 April, where McHugh’s testimony would be more damning for Gerard. McHugh was talking to Gerard on the phone about looking forward to the real estate conference the next day when he said, ‘Two of my staff are going.’ She knew Allison would be one of those ‘staff’.
‘I lost it,’ she said, going on to detail the heated conversation.
She had demanded Gerard tell his wife about the clash. She had demanded to meet to talk about how he was going to change things. He said he was going to sell the business.
It was the pivotal moment for the prosecution. Fuller was building a case that Gerard, under pressure from his mistress and his wife, erupted into violence that night. In the dock, Gerard never seemed to flinch or look away during McHugh’s personal testimony. He faced her, watching impassively as she struggled through a tumult of emotions.
When Michael Byrne began his cross-examination, he went back to Allison’s discovery of the affair. When it came to making a choice, he pointed out, Gerard chose his wife. Nothing had ever come of his many promises. Gerard’s defence was minimising his emotional connection to McHugh. They planned to portray her as merely one of Gerard’s many lovers – hardly a motive to kill his wife.
Byrne asked about the period when Gerard resumed contact with McHugh. She agreed Gerard had talked about options for her to work in Dubai, South-East Asia, Japan and the United Kingdom. The inference was Gerard was trying to rid himself of her.
The day was drawing to a close, but the defence was not finished with McHugh. She would have to return.
As McHugh prepared to leave court for the day, she had no idea of the mad scramble going on outside. After yet again missing a photograph of McHugh, The Courier-Mail’s picture editors sent every available photographer down to the court complex that afternoon. Two photographers from the paper staked out every exit in the building. Television crews pooled resources. When detectives drove McHugh out of an underground car park in an unmarked police car, she was greeted by an eruption of camera flashes. Her photo would be on the front page the next day, when she resumed giving evidence.
The defence continued to downplay Gerard’s commitment to her. Byrne said Gerard had never encouraged McHugh to leave her de facto partner. Their relationship followed a pattern for years of Gerard ‘talking the talk’ but never following through. He said McHugh would become angry and frustrated.
‘Can I suggest to you that what happened on the 19th of April 2012 was precisely what had been going on with the affair for the last three-and-a-half odd years, Ms McHugh,’ Byrne said.
Critically, McHugh disagreed. This time it was different because she was taking a stand. She wasn’t going to let it keep happening.
Byrne said that when Allison went missing, Gerard told McHugh to tell the truth when she spoke to the police. The QC then brought up McHugh’s last meeting with Gerard in a Fortitude Valley unit after Allison’s disappearance. He said the context of the meeting was that police had told McHugh Gerard had been in relationships with other women and she was angry and upset.
It was the first time the jury heard of Gerard’s serial philandering.
In the witness box, McHugh became teary remembering the meeting and apologised.
With the other affairs now on the table, Fuller, on re-examination, asked for more details. McHugh said one of the other affairs occurred before they were together ‘but the second, yes, we were definitely together when that happened’. It was when Gerard had talked her into joining him at the Australian Real Estate Conference in Sydney. She flew down on the second day.
‘It’s my understanding that it happened the day before,’ she said of his other dalliance.
On that note, McHugh’s time in the witness box was over. As she walked out, one of the reserve jurors crossed her arms, shot a withering glare at Gerard and shook her head.
Building the case
Tuesday 17 June 2014
The Crown case was not a complicated one. Ultimately it boiled down to a handful of key points: Gerard’s scratches weren’t razor cuts, they were inflicted by Allison; the leaves in her hair were from the garden, becoming entangled when Gerard dragged her body to the car; the blood in the car got there when Gerard transported Allison’s body to the creek; and the affair with Toni McHugh, combined with Gerard’s personal financial crisis, put him under pressure. These were the planks Crown Prosecutors Todd Fuller and Danny Boyle laid down for the trial as they set about arguing Gerard’s guilt was beyond reasonable doubt.
First the Crown had to deal with the suicide theory. Michael Byrne and solicitor Peter Shields for the defence were running hard on Allison’s depression, implying she took her own life. Anticipating more to come, the Crown called a succession of witnesses who testified Allison’s depression was well managed. She seemed in control and knew when to seek help. Medical practitioners and counsellors who had had appointments with Allison over a decade were called and gave evidence they had no concerns she could take her own life.
Among them was Dr Nicholas Bourke from Kenmore Clinics, who saw Allison four times, all in 2011. In May, he prescribed Zoloft to treat the teariness and other symptoms of depression that had returned as a result of relationship and financial stress. In October, when Allison consulted Bourke, she was struggling after discovering Gerard’s affair with Toni McHugh. She also reported premenstrual mood swings, but never said anything to suggest she was suicidal.
Allison also saw psychologist Dr Laurie Lumsden in December 2010, after Gerard told Allison on their wedding anniversary he didn’t love her. Lumsden told the court he found Allison’s stress and anxiety levels completely normal. Prosecutor Danny Boyle asked about Allison’s risk of taking her own life, and Lumsden’s response dealt another blow to the defence suicide theory.
‘At that time, absolutely zero. She discussed her depression as being in the past,’ Lumsden said.
Psychologist Rosamond Nutting, from the Bardon Counselling Centre, saw Allison and Gerard three times between October and December 2011. The discovery of Gerard’s affair had traumatised Allison. She was having flashbacks to seeing Toni McHugh’s car at the gym and was blaming herself for being a bad wife.
‘She was sad. She knew that the marriage hadn’t been good, but she really wanted to pick up the marriage and get it going again,’ Nutting said.
There was nothing in the sessions to indicate Allison was suicidal, otherwise Nutting would have contacted her patient’s doctor.
Relationships Australia counsellor Carmel Ritchie had tried to avoid giving evidence. In pre-trial hearings, her lawyers argued her sessions with Allison and Gerard were confidential. But she had been ordered to testify, and took the stand.
Ritchie had seen the Baden-Clays together on the Monday before Allison’s disappearance. Now she found herself in the uncomfortable position of having both the prosecution and defence cite the 15-minute venting sessions she had recommended Allison and Gerard schedule as being linked to Allison’s death. On the Crown case, the venting sessions contributed to the pressure on Gerard before he murdered Allison. To the defence, Allison was dealing with powerful emotions that could have led her to storm off into the night, possibly taking her own life. Ritchie described to the court how hard she had had to work on Gerard to accept the 15-minute sessions.
Byrne, grilling Ritchie, said Ritchie had recommended the venting sessions without knowing what medication Allison was on or the status of her depression. He said Ritchie had given no restrictions or instructions on how to go about the sessions. Ritchie defended herself, saying the instructions were for Gerard to listen: ‘I did not say he had to answer her questions.’
That was the problem with a lack of instruction, Byrne said. If Allison was asking questions, Gerard couldn’t remain silent.
‘And he may not be saying things that Allison wants to hear,’ added Byrne.
Next, police appeared to talk about the
ir dealings with Gerard on the day he reported his wife missing. Constable Kieron Ash, first officer on the scene, ignited the entire investigation with his concerned phone call to senior officers. ‘When I first saw him, I noticed that he had scratches on the right-hand side of his face,’ Ash said. He told the court he suspected domestic violence.
Sergeant Andrew Jackson told a similar story: ‘As soon as he looked at me straight on, I saw a couple of large lacerations to the right side of his face.’
Constable Liam Braunberger brought Gerard’s dire finances into focus. Braunberger was working at the front desk of Indooroopilly Police Station when Gerard came in briefly on Friday 20 April 2012. Braunberger had started a missing person file on Allison on the police QPRIME computer database and asked Gerard if she had access to any money.
‘He stated that she had about $20 available to her, and after that he made a statement that they were on the bones of their arse,’ Braunberger told the court.
Wednesday 18 June 2014
Dr Margaret Stark was the first of a series of experts to state that the injuries to Gerard’s face had the hallmarks of fingernail scratches. Stark was director of the NSW Police Force Clinical Forensic Medicine Unit and had been a forensic physician for 25 years. Stark examined photographs of Gerard’s face. She said there appeared to be two separate sets of injuries caused at different times. Prosecutor Danny Boyle asked Stark about the wider injuries.
‘These particular injuries are typical of fingernail scratches,’ Stark said, adding they were not typical of a razor but that was as far as she could go.
Stark based her opinion on examining thousands of victims of assault and injured suspects. She added that if you nicked yourself, ‘you’d probably stop and wouldn’t go on and cause a second injury’. Smaller, redder marks on Gerard’s cheek were more consistent with a razor, she said.
The Crown hoped the jury would draw the conclusion Allison had scratched Gerard’s face, then he had tried to muddy the waters by adding razor cuts.
When Scenes of Crime officer Sergeant Anthony Venardos gave evidence, he introduced the jury to the injuries to other parts of Gerard’s body. Venardos testified he took photographs of Gerard with his shirt off at Indooroopilly Police Station.
When the jury was shown the photos of Gerard’s injured chest, neck and armpit, they leant in close to their screens and turned to each other. Their wide-eyed expressions no doubt mirrored the reaction of detectives when they first saw the same images.
Thursday 19 June 2014
The Crown had a bevy of highly experienced forensic experts to attack Gerard’s claim he cut himself shaving, and rolled them out. Dr Robert Hoskins, a former Queensland Health forensic medical officer, had an extensive collection of scratch photographs. He examined photographs of Gerard’s face and compiled a report.
‘The first thing that springs to my mind is that those injuries are characteristic of fingernail scratches,’ Hoskins told the court. ‘They are ragged, roughly the right size, in the same direction and very approximately parallel with one another.’
Asked if the injuries could be from a razor, Hoskins said: ‘I find it extremely implausible.’ It was possible the other, smaller injuries on Gerard’s face were from a razor and were more recent due to the appearance of fresher blood, he added.
Again, the evidence raised the spectre of Gerard attempting to conceal fingernail scratches with razor cuts. In further evidence, Hoskins said that Gerard’s chest, neck and armpit injuries could be from fingernail scratches.
Queensland Health forensic medical officer Dr Leslie Griffiths had personally examined Gerard. Griffiths told the court Gerard’s facial injuries ‘resemble scratch marks’ and it was ‘highly improbable’ they were from his razor. Griffiths thought the injury near Gerard’s armpit was ‘strap-like’ and could have been from a backpack. He formed no conclusions on what had caused the separate injury on Gerard’s chest, but it could have been from clothing being forced against the skin.
The final expert witness on Gerard’s injuries was Professor David Wells, from the Victorian Institute of Forensic Medicine. Wells, head of the institute’s Clinical Forensic Medicine Unit from 1985 until 2013, told the court he examined photographs of Gerard’s face. He couldn’t reconcile a razor causing the main injuries, but it may have caused the smaller ones.
Defence barrister Byrne cross-examined the expert witnesses at length, doing his best to sow the seeds of doubt. All the experts conceded they could not definitively say Gerard’s injuries were fingernail scratches – but crucially, all believed they were.
Gerard had claimed the injuries to his neck and chest were self-inflicted scratches after a caterpillar fell on him. There was one witness who tended to back Gerard’s version of events. Cameron Early was at the Brookfield State School cross-country event on 19 April 2012. Early knew Gerard through the school P & C and Kenmore Chamber of Commerce. The two men were talking business underneath some trees near the school oval.
‘He started, all of a sudden, pulling towards his left neck. He was standing to my left and he said words to the effect of: “Oh shit, what was that? Oh God, bloody hell, that hurt.”’
A welt appeared on Gerard’s neck, about an inch and a half long and as thick as a finger. Early presumed ‘a grub of some description’ fell from the tree and bit him.
It was common at the trial for issues to be dealt with over a number of days. The evidence moved from injuries to finances to personal pressures and back again. Sue Heath testified Gerard made a desperate request for $300,000 from her friend Dr Bruce Flegg in March 2012. Gerard said he would go bankrupt without it.
‘He was distressed,’ Heath told the court. ‘You could just tell in his voice. He was normally very confident and he was genuinely really quite distressed. I felt really quite sad for him. I think he was under a lot of pressure.’
Psychiatrist Dr Tom George brought the attention back to Allison’s state of mind. George told the court Allison came to see him with depression in September 2003 while pregnant with her second daughter. Allison was ‘symptom free’ within a few months, after starting on Zoloft. She had 31 consultations and eight or nine phone calls with George over the next six years.
‘Her condition resolved and remained resolved for the vast majority of the time that she was under my care,’ George said.
Prosecutor Danny Boyle asked if Allison talked about her children, and George said it was ‘one of the main reasons she came to see me’. He said, ‘All the conversations she had about the children indicated to me that she was extremely attached to them, extremely fond of them.’
Maternal attachment had a protective effect from suicide, George added. He had no concerns ‘at all’ about the risk of Allison taking her own life.
‘Beyond that first one or two consultations, she was never depressed. She was functioning well. She had plans for herself. She had plans for her children. She was living an active, interesting social life.’
The evidence from Allison’s GP, two psychologists, a counsellor and now her psychiatrist that Allison was not a suicide risk added up to a powerful strike on the defence theory that Allison may have taken her own life.
But Gerard’s barrister Michael Byrne wasn’t giving up on the angle. He asked George about a phone call from Gerard when Allison was pregnant with their third daughter in 2006. Gerard had found out they were having a girl, and worried Allison would react badly as she wanted a son. He kept the information to himself: Allison only found out the baby’s sex at birth.
It was a theme the defence kept returning to. Two days before Allison was reported missing, Gerard’s brother welcomed a baby boy. The defence lawyers were building a case that Allison took the news badly. The suicide theory was unspoken but always implied at the trial.
George, before his evidence was over, shot a hole through it: ‘She was disappointed initially but very rapidly recovered,’ he said. ‘She felt a little sad for her husband, who she thought was very keen on having a b
oy.’
The second week of the trial was about to wrap up when Todd Fuller announced he had a brief witness. It was 4.27 pm, just three minutes before the scheduled end of the day’s evidence. Usually there would not have been any new witnesses called at the late hour, but Fuller said Stephanie Apps was relevant to the view planned for the Monday. Apps was the resident of Boscombe Road at Brookfield whose children had been fighting on the night Allison was last seen alive. Apps testified that her daughter, 15, and son, 13, were arguing in the back of her car as they drove home from dinner. When they reached home shortly before 10 pm, her daughter had knocked over a pot, run into a spider web and screamed.
Apps went to the Brookfield Showground and told police at the temporary command post there about what had occurred on Thursday 19 April. She thought police should know that reports of screams in Brookfield that night could have an innocent explanation. She would have hated for anyone to connect the sounds from her driveway to Allison Baden-Clay’s disappearance. A piercing female scream around the corner from Allison’s home on the night she went missing could easily be misconstrued.
Surprisingly, despite the painstaking attention of their investigation, none of the police followed up with Apps. She had not been due to testify at the trial and was only in court because a private detective had approached her the previous Sunday and the defence asked her to make a statement.
Her testimony was over in less than ten minutes but effectively countered the significance of previous evidence about screams in the night. After Apps emerged, police scrambled back to their records to see how she could have been overlooked. Detectives could only find a reference to Apps being routinely door-knocked – there was nothing in the job logs about her approaching the police.
Outside court Allison’s family wanted to know what it meant for the Crown case, telling Fuller it didn’t look good for the evidence to emerge at the last minute. Fuller wasn’t thrilled but didn’t think the screams were central to the case.