by David Murray
Monday 23 June 2014
Gerard’s defence team made quite an entrance when the trial moved out of the court to Kholo Creek Bridge at the start of the third week. The jury was to be shown key locations, and Peter Shields and Michael Byrne arrived at the bridge in a silver two-door Audi TT convertible. By contrast, prosecutors Todd Fuller and Danny Boyle arrived in a sensible family Mazda CX5, voted best SUV under $40,000 for the second year running. It said much about the comparative styles and pay packets of criminal defence lawyers and Crown prosecutors.
The jury arrived at Kholo Creek Bridge in a bus. Police had set up roadblocks on Mt Crosby Road on either side of the bridge. All traffic was stopped to allow the jurors to view the area unrestricted. It is against the law to identify jurors, so photo graphers and TV cameras kept their distance.
Much had changed at the bridge since the discovery of Allison’s body. The verge on one side had been cleared of undergrowth and widened to create space for parking, and Allison’s family had erected a large stone memorial. The prosecution and defence had discussed covering the memorial as it was potentially prejudicial to the case, but decided any attempt to conceal it would only draw attention. However, jurors were told they would have no reason to approach it.
A dirt track allowed jurors to get underneath the bridge if they wished. They spent almost an hour at the site before boarding the bus to be taken to Allison and Gerard’s former Brookfield home. There were significant changes here too. The home’s owners, who also owned the childcare centre next door, had tried renting it after Gerard’s arrest but had no takers. It was being used as an office and training room for the childcare centre. When the jury arrived, they found the house had been repainted yellow – coincidentally Allison’s favourite colour – and trees had been cleared from throughout the property. A new building was being erected between the home and the childcare centre.
The jury briefly walked around and through the house. The ‘view’ was over before lunch, but the trial was running well ahead of schedule and adjourned for the day.
Tuesday 24 June 2014
Gerard had a new supporter in court – his younger brother, Adam, who lived in Canada, had arrived. The first evidence Adam heard was about Gerard’s requests for money from friends. The Crown sought to show financial desperation, while the defence painted a brighter picture of Gerard having friends in high places and a business on the mend.
Dr Bruce Flegg was up first, testifying about Gerard’s requests for loans as well as the screams he heard on the night Allison disappeared.
Then came three of Gerard’s closest friends – Robert Cheesman, Stuart Christ and Peter Cranna – the ones who had dubbed themselves his financial ‘advisory group’. They were variously in each other’s bridal parties, went on family holidays together and met up for dinners and social gatherings. In February 2011, with his business partners wanting out and real estate in the doldrums after the floods, Gerard turned to his best friends for a loan. They met up and delved into the company books.
After satisfying themselves it was viable, Cheesman and Christ reached deep into their pockets to each loan him $90,000. Cranna had been lending money to Gerard for years, adding up to an outstanding loan of $96,000. All three men gave evidence at the trial that the loans were sealed with a handshake. There was no documentation and no security.
‘We spent maybe a month going through the figures,’ said Cheesman, an accountant who owned a computer consulting business. ‘We wanted to know how he got into that problem. We wanted to see some forecasts for the future. And then we lent him some money. The business was clearly in trouble, but I could see a way out.’
Cheesman said Gerard’s business was blowing too much money on rent and staff. Gerard agreed to cut his expenses, and for a while Cheesman reviewed all outgoing payments. When Allison stepped into the business later in the year, his friends were comforted by her presence and took a step back. Cheesman thought he was going to get 10 per cent interest. Christ thought he was ultimately going to be repaid the principal sum of $90,000 plus $90,000 interest. Gerard kept up with interest repayments for a few months then stopped paying. Christ told the court Gerard later asked for more money at various times, but he didn’t give him any.
In cross-examination, Cheesman and Christ confirmed Gerard’s father, Nigel, phoned them looking for a lawyer the day Allison vanished.
‘He was concerned that there was a lot of police,’ Cheesman said. ‘They were surrounding Gerard. They were asking him a lot of tough questions. [Nigel] suggested he contact a lawyer and I blew him off. I said it wasn’t necessary and the focus was on finding Allison.’
Christ added that Nigel was distraught when he phoned in the morning and sounded ‘very concerned about the line of questioning from police’.
‘In his words, “They’re going after him.” I said something like, “Look, Nigel, just worry about finding Allison.”’
Christ said Nigel persisted, so he gave him the number for Craig Thompson, a partner in Toowoomba law firm Wonderley & Hall Solicitors.
On the subject of Allison’s depression, Christ told the court that sometimes Allison was quiet and reclusive and at other times she was great fun.
None of the three friends knew about Gerard’s affair with Toni McHugh.
Experts from a range of disciplines were the next to be called as the Crown sought to show Allison was dumped where she was found and to exclude other possible causes of death, such as drowning or an overdose. Some of the evidence involved gruesome descriptions relating to Allison’s body. The prosecution had arranged to signal Allison’s family before difficult evidence, giving Geoff, Priscilla and other relatives time to leave if they wanted.
Professor James Wallman, a forensic entomologist, said insects recovered from around Allison’s body could be consistent with death around the time she went missing. At a minimum, there would be an interval of three or four days between the death and the gathering of those insects around the body. He was unable to conclude if Allison had been submerged.
Dr Jacob John was a retired Curtin University professor involved in pioneering research into diatoms – microscopic algae – for 35 years. He told the court diatoms were present in all types of water body. Typically, when a person drowned, water rushed into the lungs and spread through the lymphatic system to other internal organs, depositing diatoms that could remain in the body for years. John found blooms of diatoms in almost all of the Kholo Creek water samples collected at the time Allison’s body was discovered.
Examining bone marrow and liver tissue samples from Allison’s body, John found no diatoms. ‘The subject concerned did not drown in Kholo Creek or anywhere. There was no evidence of drowning at all,’ he testified.
Professor Olaf Drummer, who had given evidence at the committal, was called to give evidence about the levels of antidepressants and alcohol in Allison’s body. Drummer was a toxicologist, pharmacologist and head of Forensic Scientific Services at the Victorian Institute of Forensic Medicine. He told the court that patients who were new to the medication sertraline (Zoloft) could experience headaches, dizziness, sedation, drowsiness, difficulty sleeping and excitability. But side effects reduced with time, and the drug was relatively non-toxic. Sertraline overdoses were very rare and usually occurred in combination with other toxic drugs. Victorian and other records he examined did not have any cases of death from sertraline overdose alone.
Drummer didn’t think Allison overdosed on sertraline: ‘The levels themselves, in my view, do not lead me to think that the drug had any contribution to her death.’
Allison had a blood-alcohol reading of .095, but Drummer said alcohol was commonly produced in the body after death through fermentation.
In cross-examination, Michael Byrne asked Drummer to explain serotonin syndrome. Drummer said excessive increases in serotonin could cause confusion, anxiety, agitation and, in severe cases, delirium. Drummer agreed sertraline overdoses could cause serotonin syndrome.
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sp; Martin Giles, a senior hydraulic and environmental engineer at environmental and engineering services company Cardno, concluded Allison’s body could not have washed up on the creek bank. Giles used Brisbane River gauges at Moggill and College’s Crossing to determine Kholo Creek water levels. He said there had been 80 to 100 millimetres of rain in the days before Allison’s body was found so he developed a rainfall run-off model of the catchment to take it into account. The end result was that it was ‘impossible to imagine’ the flow of water would have been enough to move Allison’s body into the location it was found, Giles told the court.
No one had expected a botanist to be one of the star witnesses in a murder trial. But Dr Gordon Guymer was. And when he arrived at court in the third week of testimony, Guymer, in typical fashion, was exhaustively prepared for his testimony about the six plant species he identified from Allison’s hair and body.
A month beforehand, the Queensland Herbarium director had arranged for colleagues to cross-examine him in a mock trial at work. Masters in their field, they were tougher on Guymer in a technical sense than any defence lawyer could have been. One colleague stumped him with a particularly incisive observation.
‘Dr Guymer,’ she said formally, addressing an imaginary courtroom at the Herbarium. ‘You don’t have any data about the likelihood of these six species being found in the one place, do you?’
Guymer realised she was right and set about compiling some. He put coordinate points from around Brisbane into a random number generator. Five suburbs were selected at random: Mitchelton, Durack, Salisbury, Taringa and Jamboree Heights. Guymer then went out and conducted plant surveys at 100 houses in each suburb – 500 in total – looking for the six species of plant he discovered in Allison’s hair and body. Residents had no idea of the unusual mission of the man examining their front yards and peering over their fences. It was all in Guymer’s own time and took him two full weekends.
In the end, out of the 500 residential properties he visited, he discovered one house at Taringa with five of the six species specified. The house was still missing the lilly pilly, which Guymer hadn’t seen at any of the houses he checked. To find all six would have required an exponential increase on the 1 in 500 chance of finding five.
The senior botanist now had data to confirm what he had always suspected. There was only a remote possibility of all six species being found growing together – as they were at the Baden-Clay house – if a property was selected at random.
Guymer’s persistence and dedication stemmed from a desire to be fully across the evidence he was presenting. In other cases, botany was on the periphery. He knew from early on that in this case, the Herbarium’s work was crucial to the case and he didn’t want any mistakes or surprises.
At trial, Guymer rattled off the scientific names and then the common names of the species he would be discussing. The crepe myrtle, cat’s claw creeper, fishbone fern and eucalyptus were entwined in Allison’s hair. The Chinese elm and lilly pilly were loose.
Each of the seven crepe myrtle leaves had been on the ground when they got mixed up in Allison’s hair, Guymer stated. To be certain, he had taken cuttings from the trees at Gerard and Allison’s home and grown them to observe their leaves over time. One of the cat’s claw creeper leaves in Allison’s hair had been pulled from a live plant. The fishbone fern leaflets were likely a mix of some fallen and some fresh. The eucalypt and Chinese elm leaves were fallen. The lilly pilly leaf was live or recently fallen.
Guymer talked in detail about finding the six species around the Baden-Clays’ former home, and finding only two of the species around Kholo Creek Bridge. He told the court he carried out a plant survey all the way from Brookfield to Kholo Creek Bridge and only rarely found some of the key plant species.
The day drew to an end. The defence would cross-examine Guymer the next day.
Wednesday 25 June 2014
Guymer does not look like a particularly frightening man. But the greying, neatly dressed boss of the Queensland Herbarium seemed to have Gerard’s defence team slightly rattled. At 9.20 am, less than an hour before he was to be cross-examined, Guymer met Michael Byrne and Peter Shields in a side room outside court. Gerard’s lawyers had asked to speak to him. Byrne told Guymer he wasn’t sure the defence had given his statements the attention they possibly deserved, and the two lawyers fired off 20 questions to gauge his responses. The grilling from colleagues in the mock trial had prepared him well; Guymer was not concerned by the defence questions.
Guymer had done additional research not referenced on the stand and now detailed it to Byrne and Shields. On his own initiative, he had conducted an experiment on crepe myrtle leaves to assess the effect of soaking them in creek water for up to ten days: he observed little effect. Guymer, of course, ensured the water precisely matched the salinity in Kholo Creek.
The defence weren’t leaving anything to chance: They had sent another botanist to Kholo Creek to conduct plant surveys and check his work. Unsurprisingly, nothing had been found to contradict Guymer.
Byrne’s cross-examination of Guymer was short when the trial resumed. Guymer agreed his plant survey between Brookfield and Kholo Creek bridge was along the roadside and did not venture into private backyards. He agreed cat’s claw creeper was relatively common and ranked 23rd in a list of Australia’s worst weeds. Byrne pointed out that plant debris could float down creeks and rivers.
In the end, the defence seemed happy to see the back of Guymer.
Police witnesses testified about the discovery of blood in the car, before Queensland Health senior forensic scientist Amanda Reeves gave evidence it matched Allison’s DNA. Statistically, there was a 1 in 5600 billion chance of the blood being from someone other than and unrelated to Allison, Reeves said. Nobody could argue against such overwhelming odds.
Reeves also had some other evidence of interest from DNA tests of Allison’s fingernails. Under one fingernail on Allison’s left hand, there were ‘very low level indications of the possible presence of DNA from a second contributor’. Frustratingly, Reeves said the levels were too low for comparison.
The Crown case was wrapping up and after a subdued start, they had built to a strong finish. The last witnesses to be called were the arresting officers, Detective Senior Constable Cameron McLeod and Detective Sergeant Chris Canniffe. The quietly spoken McLeod read aloud some excerpts from Allison’s journal, where in the days before she died she had jotted down questions for Gerard about his affair with Toni McHugh.
‘Movies/drive together – how many times; what see; dinner; scared of being seen; kiss/hug? Snowy – drive together; seats down; lie there afterwards; how many times; do afterwards; drive home?’
The rest of the courtroom was silent as McLeod continued to read Allison’s questions probing every intimate detail of his affair. Allison had crossed some of them off. Others, about Gerard’s treatment of Allison, were still waiting to be asked.
‘Afterwards, why so mean? Laughed at undies. Told me I smelled. 40th birthday. Four weeks later, started. Dirty. Find whole thing dirty. Still get sick to the stomach.’
Allison’s own words had given the jury an insight into how bruising and confronting the 15-minute sessions must have been.
Prosecutor Todd Fuller tendered some final documents. One was a life insurance schedule for Allison and Gerard, but Fuller did not read the amounts aloud. He went on to read 27 ‘admissions’, or facts the defence had accepted. Among them, Gerard accepted his iPhone was connected to a charger at 1.48 am on Friday 20 April. He also agreed he called Asteron Life Insurance the day after Allison’s body was discovered to ask about claiming on her policy.
‘That is the Crown case, thank you, Your Honour,’ Fuller announced when he was through the admissions.
At this point, Gerard’s barrister, Michael Byrne, announced he had a matter to discuss with the judge so the jury left the court. As always when the jury wasn’t there, a cone of silence fell over proceedings. The jury would know nothing of
the events that followed until after the trial, but Gerard was launching a legal assault to take the murder charge off the table. Michael Copley QC had been brought in to bolster the already high-powered defence team. Copley told Justice Byrne the defence contended there was no case to answer on murder. His argument was there was no evidence to prove intent to kill or cause grievous bodily harm, an essential element of the charge.
If the tactic succeeded, Gerard would only face the alternative charge of manslaughter. Justice Byrne showed early signs of being unimpressed, interrupting Copley with his troubles about the submission: ‘The first, and by far the most important, relates to the scratches.’
It was notable that in the absence of the jury, whereas previously there had been delicate references to ‘injuries’, this now went out the window – they were simply scratches. Byrne, who had been appointed a judge of the Supreme Court in 1989, said he was inclined to think the jury could conclude Allison scratched her husband’s face while ‘fighting for her life’.
An odd legal exchange followed. Copley argued that at best, all the Crown could show was there was a violent struggle and Allison died unintentionally. Justice Byrne observed it was hard to reconcile Gerard’s behaviour afterwards if Allison’s death was accidental.
‘What he did involved disposing of a body in an undignified way and in a manner calculated to prevent its timely discovery. He then engages in serious subterfuge. He lies about the scratches and does more than that; he uses the razor blade to create the appearance some hours later of scratches on the face in the redder area. Now, he then lies to the police about these things and maintains the deception and has never departed from it.’
Justice Byrne had more to say: ‘The jury might think that the pressure of it all, especially as he was most resistant to the idea that he should be subjected to hearing how his wife felt about the affair, led to a state of affairs where violence erupted and, for whatever reason, he felt then compelled to end his wife’s life. Now, some of the jurors might think he was motivated by the insurance proceeds. Others might think that he was motivated by an anxiety to be with Ms McHugh. Others might think … he was simply so incensed by the exercise that Ms Ritchie had recommended that he lost his composure and attacked her.’