The Murder of Allison Baden-Clay
Page 38
Fuller homed in on why Gerard used the Holden Captiva to search for Allison on the Friday morning, and not his Toyota Prado, which was parked in a much more accessible spot near the front steps. Gerard said it was because his car had been sideswiped in an accident on the Monday.
‘You’d been driving the vehicle Tuesday, Wednesday, Thursday, I assume?’ asked Fuller pointedly.
‘That’s correct.’
‘But on this morning you chose to drive the Captiva?’
‘Correct,’ said Gerard.
Fuller highlighted Gerard’s failure to phone Allison’s parents and closest friends until late that morning. He dropped in the detail that Gerard had slipped his business card to the GP at Kenmore and raised the fact that Gerard had not told police of the injuries on his torso. He spelt out Gerard’s precarious financial position and the difficult consequences should a marital separation have occurred. He suggested Gerard wanted to be with McHugh, who ‘offered you things that you didn’t get from your wife, the wife that you no longer loved’.
Gerard denied it.
The prosecutor pressed Gerard on the last point, saying McHugh offered Gerard a different life and he resumed the affair because he realised he had made the wrong choice when he stayed with his wife.
Again, Gerard denied it.
Gerard, Fuller persisted, was at risk of a catastrophe if his wife and mistress came together at the conference. His double life would be exposed and ‘the façade that was Gerard Baden-Clay would fall’.
The prospect had never entered his mind, said Gerard.
Fuller’s voice had been rising. He was working towards a dramatic conclusion, and the court fell silent as he went for the throat in a dramatic exchange.
Fuller:
You killed your wife, Mr Baden-Clay?
Gerard:
No, I did not.
Fuller:
You attacked her and the only way that she could respond was to lash out and claw at your face and leave marks upon it?
Gerard:
That is not true.
Fuller:
Probably as you smothered her and took her life from her?
Gerard:
That is not true.
Fuller:
Perhaps she grabbed at your clothing; is that why you had that injury under your right shoulder?
Gerard:
No.
Fuller:
Why do you have that injury?
Gerard:
I don’t know.
Fuller:
You have no idea?
Gerard:
No.
Fuller:
You overpowered her pretty quickly, didn’t you?
Gerard:
I never overpowered her at all.
Fuller:
Perhaps her jumper came up as she tried to fight you off, up over her hands and up around her neck, or did that happen later as you moved her body or dumped her in the creek?
Gerard:
I never did anything to physically harm my wife in any way, ever, so your supposition to then take it further to suggest that I did other things, as well, is absurd, and I, I object to it. So, I can’t answer your question.
Fuller:
Her head came into contact with the fallen leaves at the back of your house or at the side of your house, didn’t they?
Gerard:
I don’t know.
Fuller:
You put her in the Captiva?
Gerard:
I did not.
Fuller:
And she sustained perhaps a minor injury to some part of her body that caused her to bleed?
Gerard:
I did not have anything to do with anything that you are suggesting.
Fuller:
And that’s why the blood is on the right hand side over the cowling of the back wheel when the seats are folded down?
Gerard:
I had nothing to do with anything that you are asking me.
Fuller:
It wasn’t enough to be noticed, but it was enough to be found … You transported her to Kholo Creek and then dumped her underneath the bridge, unceremoniously?
Gerard:
No, I did not.
Fuller:
Anxious to get back to your children?
Gerard:
The suggestion that I would leave my children for any time in the middle of the night is absurd, let alone do the dastardly things that you’re suggesting.
Once again, Gerard’s strongest reaction was to the suggestion he would leave his children alone.
The prosecutor continued without pause.
Fuller:
That was all done by 1.48 am, perhaps, which is when you put your phone back on its charger?
Gerard:
I did not.
Fuller:
And you started covering your tracks then, I suggest to you, Mr Baden-Clay: the toys in the back of the car, shaving, cutting yourself just at the bottom edges to help disguise and give some legitimacy to your claim that they were, in fact, shaving cuts?
Gerard:
I did not.
Fuller:
And then you told everybody they were shaving cuts, anybody who asked. And you were happy for the police to search your house, correct?
Gerard:
Yes. I had nothing to hide.
Fuller:
Because you knew there was nothing to be found?
Gerard:
No, because I knew that I had nothing to hide, and I wanted my wife found, and they suggested that searching the house might in some way be helpful in that – to that end. So, I enabled them to do whatever they wanted to do.
Fuller:
And then you kept up the façade of the concerned husband?
Gerard:
I was a concerned husband, and I’m a very concerned father. I remain so. It’s not a façade.
Fuller:
Then you took some legal advice?
Gerard:
I did.
Fuller:
And you declined to provide a statement to the police? Gerard: That’s correct. I, to be perfectly candid with you, had no idea what a formal statement was and I couldn’t see how it was any different to all of the numerous questions I’d answered previously. But my lawyer insisted upon it, and so I followed that advice. Fuller: And you’re certain you never told Allison that she was going to run into Toni McHugh the next day?
Gerard:
Absolutely not.
Fuller’s interrogation was over. Gerard looked spent.
Defence barrister Michael Byrne had some more questions, and Gerard offered one more piece of unexpected evidence before he left the witness box – intimating he’d had numerous affairs.
‘It was purely about the physical aspect of that, that I went to those other women. Some of them over an extended period of time, admittedly. Many of them concurrent.’
It was the last part of the statement that was odd. The jury had only heard of one concurrent affair – when he slept with Jackie Crane and McHugh at the same conference. Gerard was distancing himself from McHugh, but in the process he was raising questions about what else he had been concealing.
At the end of his testimony, the defence called three witnesses. A company called Khemistry had compiled a time-lapse video recording at Kholo Creek spanning ten days, and employee Ashton Ward spoke to the court about how it had been prepared. It showed debris moving up and down the waterway. It was an attempt to suggest the leaves in Allison’s hair may have been washed down the creek, and that her body may have floated to where it was found.
The next defence witness, forensic toxicologist Dr Michael Robertson, testified sertraline could bring on serotonin syndrome, which caused profound confusion and other effects. People on antidepressants were also at higher risk of suicide, Robertson said. Under cross-examination he agreed Allison’s sertraline levels were not consistent with the majority of sertraline-related deaths.
Finall
y, psychiatrist Dr Mark Schramm testified people with major depression sometimes took their own lives, did not leave suicide notes, and hid their intentions from medical professionals. Under cross-examination, Schramm readily conceded that Allison’s strong maternal attachment went against the idea of her being suicidal. Prosecutor Danny Boyle asked how the risk of suicide was affected by the lack of a triggering event, the existence of short- and long-term plans, willingness to seek assistance, long-term use of antidepressants and absence of prior adverse effects. Schramm had never met Allison. Her psychiatrist, psychologists and counsellors had all testified she was not suicidal.
The defence case ended on a whimper. Had they managed to pull a rabbit out of a hat on Gerard’s scratches, it might have been a different story. As it was, they could find no one to testify it was likely his wounds were inflicted by a safety razor.
The jury was excused and told to return on Monday for closing arguments. Once they were gone, Justice Byrne had a detailed discussion with the Crown and defence on how he would sum up for the jury the following week. The judge was also considering an interesting direction to the jury – that they should not draw adverse inferences from Gerard’s bouts of sobbing in the dock.
‘It will have become apparent to the jury,’ Justice Byrne said, ‘that the sobbing took place in-chief [during defence questioning] and not in cross-examination. It may well be that other observations by jurors of the accused may lead one or more of them to suppose that he was acting.’
Also worrying for Gerard and his team was that Justice Byrne raised concerns about his obligation to spell out to the jury any reasonable scenario consistent with innocence. He was struggling to put one together and wanted the defence to clarify their argument.
‘My concern about it, frankly, is this. The evidence doesn’t seem to me, at this stage, to identify any possible basis on which she could have died by suicide. She did not drown. She did not overdose. She did not fall from the bridge, because there’s no fractures. So what is the suicide hypothesis that’s to be put if one is to be put?’
After all the defence efforts to highlight Allison’s depression, the suicide theory had no endgame. There seemed to be few positives too from Gerard’s time in the witness box. The jury had wanted to see him declare his innocence, but the salesman had failed to close the deal. They wanted to see a broken, remorseful, loving spouse. They saw a confident and boastful man, equally happy to betray either his mistress or his wife as it suited. He was comfortable with deceit and almost seemed to revel in matching wits and splitting hairs with Crown prosecutor Todd Fuller. He had performed like a shonky property spruiker rather than a sincere and likeable widower.
Monday to Wednesday 7–9 July 2014
Gerard’s decision to take the stand handed the prosecution a significant tactical advantage. The defence would present their closing argument first, with the Crown getting the last word before Justice Byrne summed up.
Michael Byrne started with an attack on the media. This was a murder trial ‘not a great big media event,’ he said. It was a theme Byrne would return to, criticising the ‘sensationalist’ coverage that appealed to the ‘lowest common denominator’ and was little more than ‘salacious gossip’, at times. Jurors may find Gerard’s infidelity ‘abhorrent’ but it didn’t make him a murderer, he said. Even Toni McHugh knew Gerard wasn’t going to honour his promise to leave his wife by 1 July. Byrne added it was a furphy that Gerard was under financial pressure. Here was a man who had no history of violence. There was no evidence of a struggle at the house. No eyewitnesses. No confession. Byrne said the Crown case simply didn’t add up. It seemed fanciful that Gerard had managed to murder his wife without his daughters hearing anything, then left his children home alone while he drove out and dragged his wife’s body down to a creek before returning home.
‘Do you think such a scenario is even possible?’ Byrne asked.
With the presumption of innocence, Gerard’s team was not obliged to prove anything. But Byrne suggested one possible scenario for Allison’s death. He set it against a backdrop of Allison being deeply upset by the birth of a nephew in Canada, longing for a son of her own.
Is it possible that Allison stayed up watching television … thinking about what had gone on between her and Gerard, what had been revealed. She can’t sleep. She’s up alone. She’s supposed to be going to the conference the next day … she avoids confrontation. What if she decides to go for a walk at that time to clear her head? What if, because of her depression, she takes her Zoloft tablet around 10 or 11 pm? That would explain, you might think, her changing into the walking clothes which she is found in. She leaves the house, having first placed Gerard’s phone, which she had possession of, on the charger at about 1.48 am … About 4 am, on the figures Dr Schramm gave you, the drugs would peak in her blood stream, the medication would be absorbed in her system, and was no longer present in her stomach, but we know the levels are in the blood. Maybe with that increase in dosage, we had serotonin syndrome or just the effects of sertraline. Consider that as a scenario. Is it something which is excluded on the evidence? And some time, for some reason, she ends up in the river. The autopsy report can’t rule out drowning, it can’t rule out a possible fall or jump from the bridge could have rendered her unconscious and that she either drowned or died in the river.
In the courtroom, Allison’s aunt Mary Dann just wanted it to be over. She didn’t want to listen to the defence ‘scenario’, so she distracted herself by counting the panels on the court ceiling – there were 65.
Byrne’s closing argument finished early on Tuesday 8 July.
Todd Fuller’s closing argument also straddled two days, finishing on the Wednesday. Fuller asked the jury to look at the evidence not in discrete pieces, but as a whole, and brought together the threads that when interwoven pointed to Gerard’s guilt.
‘The scratches on his face show that he was in close contact with his wife, that she was struggling for her life. It was close; it was personal; it was violent,’ he said. ‘But as I said yesterday, it was effective. What could have been in this man’s mind as he carried that out to bring it all to an end? His frustrations from his marriage? The frustrations in his life not going where he thought it would be? The double life, the daily deceptions, the risk to him of it all coming crashing down. You might think that’s what was at the forefront of his mind. Like he told Carmel Ritchie, he just wanted to wipe the slate clean.’
Justice Byrne’s detailed summing up followed, and continued into the next day. Fuller and Boyle looked relaxed and confident. But so too did the defence.
Gerard’s family had been telling friends everything had gone to plan.
The wait
Thursday 10 July 2014 – wait day 1
Kerry-Anne Walker was in Hong Kong making final arrangements for Flight Centre’s Annual Global Gathering, which was to bring together 3500 guests in nearby Macau that weekend. It looked like Allison’s best friend was going to miss the verdict, but as the organiser for such a big event, it was unavoidable. Back in Brisbane, her parents Gary and Pam were near the front of the line outside court, as usual. The couple had attended the committal hearing and every day of the trial.
That morning, Pam held up her phone. Kerry-Anne had sent through a photo of a huge arrangement of sunflowers. Staff in her hotel, the Four Seasons, had put the flowers on display overnight. They hoped it was a good omen.
At 11.10 am, after Justice Byrne completed his summing up, the jury retired to consider its verdict. As they filed out of the courtroom, Gerard had his head up and turned in their direction: those 12 good people held his fate in their hands.
The public gallery emptied into the foyer to begin the wait. Verdicts sometimes took hours, sometimes days.
In the jury room, a problem was emerging already. A juror, obviously anxious to do the job right, had downloaded online advice from a US commentator about how to conduct deliberations and had brought along a print-out. Justice Byrne had been told o
f the breach and, back in court in the jury’s absence, he bristled with anger. He had given the jury clear and emphatic instructions twice, plus in writing, not to delve into anything to do with the trial outside of court.
‘We will lose this trial if conduct of this nature is repeated,’ he stated gravely.
The jury was brought back in and the judge delivered a firm warning: ‘We all understand the jurors are often anxious about performing their role; they want to do it well and responsibly,’ he said. But ‘what was done was wrong’, and he repeated his earlier instructions.
After the jury had departed once more, Justice Byrne sighed. ‘Let’s await the next incident,’ he said, standing to leave the court.
The day ended without a verdict. The jury had agreed to continue deliberations on Friday. They were not sequestered during deliberations, and went home, with the judge’s stern advice to ignore everything outside court ringing in their ears.
Friday 11 July 2014 – wait day 2
Geoff and Priscilla Dickie were waiting for the verdict at a conference room on the 34th floor of nearby Santos House. Other family members and friends were taking turns to wait outside Court 11 so they wouldn’t lose their additional seats should the jury return with a verdict. First thing in the morning, Justice Byrne received a request from the jury to repeat part of his summation. However, when the jury was called back into court at 10.10 am, the foreman didn’t know which part needed to be heard again and indicated it was another juror who had asked. At Justice Byrne’s request, the other juror told him which section they wanted reread. It related to interpreting lies and deciding between murder and manslaughter.