The Murder of Allison Baden-Clay

by David Murray

  Gerard had sworn black and blue he knew nothing about Allison’s death. Now a scenario he’d ruled out would get him out of jail. The appellate court had also found Gerard had no motive to kill Allison. No motive? Were they being deliberately obtuse? Any detective or criminal lawyer will tell you that when someone murders their spouse there are two motives that crop up time and again: money and sex. Gerard had both motives in spades.

  And it seemed the judges had made some alarming assumptions. They stated the jury likely found it easy to conclude there was an ‘altercation’, probably in the patio area due to the leaves in Allison’s hair. (A strange leap. Allison’s body could have been lain on or dragged through the patio area after she was smothered elsewhere, perhaps on the couch or in bed, and perhaps without warning.) The judges also decided that ‘whatever occurred was quick’ because of the lack of noise and injuries. (Again, it seems a dangerous leap to equate quiet with quick. Smothering is quiet, but certainly not quick.) And just where was the evidence to support the court’s theory that Allison could have fallen and hit her head? Allison did not have any skull fractures.

  There was palpable public anger over the decision. People had engaged with the Baden-Clay case in a way rarely seen in Australian criminal history. Common sense would suggest you shouldn’t be able to claim one thing at trial and another on appeal to secure a lesser conviction and sentence.

  Dore hadn’t missed the sentiment and his mind was ticking over to the next day’s coverage. The paper had legal advice that there were few limitations on reporting. A senior staff member reminded Dore the only thing he couldn’t do was bring the court into disrepute, as that was an offence in its own right.

  ‘Oh, I’ll bring the court into disrepute,’ Dore replied to them. It was clearly a joke, but there was no doubt he was going to produce something memorable.

  Renowned for his attention-grabbing front pages, Dore produced arguably his best and boldest the next day. The front of the paper was blacked out, with bold white type declaring simply: ‘The law is an ass’. It nailed the public mood.

  The following day, Dore doubled down with a front-page letter to Gerard. ‘You humiliated your wife, the mother of your children, before taking her life. In death, as in life, you continue to dishonour her and disgrace yourself. It’s time to stop. Tell the truth,’ it read.

  Police I spoke to were appalled and genuinely worried by the downgraded conviction. This decision seemed to have dramatically raised the bar for murder.

  Meanwhile, public anger was growing rather than fading. In the days that followed, the wave of outrage would turn into a tsunami.

  The people v the establishment

  Bevan Slattery couldn’t believe what he was reading. Slattery’s daughter went to the same west Brisbane dance school as Allison’s daughters. He’d followed the murder trial and knew how much Allison’s family had suffered. The downgrading of Gerard’s conviction seriously grated on him. How could a killer claim he had no knowledge of the crime, then argue he might have been the one attacked? What incensed Slattery even more was learning the decision was very unlikely to be challenged. Queensland prosecutors almost never ask the High Court to overrule the Court of Appeal. It had been eight years since the last such challenge.

  Slattery typed out a furious post on Facebook. But he wanted to do more, and he had the resources. Slattery happened to be one of the country’s most successful tech entrepreneurs and one of Queensland’s richest men. (Slattery was on the BRW Young Rich List in 2011 with a net worth of $103 million at the age of 40, and had gone on to bigger things from there.)

  A friend put him in touch with Allison’s friend Nicole Morrison. Slattery told Morrison he wanted to organise a public rally in Brisbane’s CBD to call for an appeal to the High Court. The first thing Morrison did was google ‘Bevan Slattery’ to check his credentials – she had no idea who he was – then she approached Allison’s parents. Morrison told Geoff and Priscilla Dickie it wouldn’t go ahead if they didn’t want it to. The Dickies gave their blessing.

  On the Sunday after the judgment came down, Slattery contacted me through a mutual friend to share the plan. The rally was to go ahead on Friday. A major organised protest against an appellate court’s decision was unprecedented. News of the protest hit the front page the next day. In the following days The Courier-Mail went out on a limb and backed the rally in a big way, in the face of a barrage of abuse from sections of the legal fraternity.

  Legal bodies and some of the nation’s most prominent lawyers hadn’t taken kindly to the robust questioning of the Baden-Clay decision. They had been lashing the news coverage from the outset. Now, with the prospect of people demonstrating in the streets, the response intensified.

  ‘The reality is that there was no new law in this judgment,’ Brisbane lawyer Terry O’Gorman told news.com.au. ‘The judgment refers to interstate authority, the judgment is the judgment of the court – it wasn’t a split court, the court was unanimous – and, to put it bluntly, the court was comprised of three very experienced appeal judges.’ Reaction to the Baden-Clay decision was ‘hysteria’ fuelled by trial-by-media, O’Gorman said:

  You do not have a murder case or any other case decided by who can yell out the loudest in the media or otherwise about their disagreement with the verdict. The verdict was handed down according to the law of the land and those who don’t like it have to cop it because that is the law.

  Barrister Greg Barns, a spokesman for the Australian Lawyers Alliance, also thought the Court of Appeal had it right. ‘Despite offering and giving briefings to media on Baden-Clay appeal, media still gets it wrong. It’s lynch mob stuff by media,’ Barns tweeted.

  In the eye of the storm was Chief Justice Catherine Holmes. Holmes had only recently been promoted to the position after a period of intense turmoil in the courts. Judges had waged an unseemly internal war in the public arena to oust her predecessor Tim Carmody. Ironically, Holmes had taken the top position with the goal of keeping the courts out of the news. ‘My great hope is to make the court itself entirely non-newsworthy as opposed to the cases which pass through it,’ she said at the time of her appointment. So much for that. The Baden-Clay appeal was Holmes’s first high-profile case as chief justice and it had thrust the courts in the spotlight like never before.

  There was more controversy for Holmes when on the Wednesday, with the rally two days away, the legal profession held its annual Christmas celebrations. Holmes used her speech to thank the Government and Opposition for not letting ‘political or populist considerations prevail over the need to respect the court’s integrity and independence’. The Christmas shindig became a festival of mutual admiration and media-bashing. Bar Association president Christopher Hughes QC declared the court had faced ‘unfair criticism’. Any commentary had to be ‘reasoned and reasonable’, he said, implying it hadn’t been. And Queensland Law Society outgoing president Michael Fitzgerald said the courts had felt the ire of the public on occasion ‘due in no small part to a shallow and opportunistic media’.

  Rally organisers interpreted all this as an attack on them. A front-page headline in The Courier-Mail sought to sum up the overall tone of the comments at the gathering: ‘Don’t dare judge us’.

  The stage had been set for an epic battle. It was The People v The Legal Establishment.

  As Friday 18 December dawned, rally organisers were hopeful but a little worried about how many people would turn up in Brisbane’s city centre. Allison’s case had strong support, but people also had busy lives and Christmas was just a week away. The rally was to go ahead in King George Square, next to City Hall, at 12.15 pm.

  Slattery had flown home from Hong Kong earlier in the week to personally oversee preparations. Eight of his full-time staff had been working on it for days. Council and police had been supportive, and Slattery had managed to get approval for the gathering within 24 hours. He’d set up a website and shot a promotional video with Olympic swimmers Libby Trickett and Mitch Larkin.

/>   If the rally failed, it wouldn’t be through lack of trying. The organisers wanted an appeal to the High Court but also, if necessary, for laws to be changed so there wouldn’t be a repeat of what they saw as a farce. A crowd of a few hundred would avoid embarrassment. If numbers soared to around a thousand, it would send a clear message that the law as it had been applied was unacceptable. The heat would probably keep some people away – it was 28°C but it felt like a thousand degrees in King George Square, a barren concrete wasteland seemingly designed to prevent anyone lingering there.

  Nervously, Slattery and fellow organisers watched the crowd build. And build. By the time the rally was due to start, some 4000 people were crowded together under the midday sun. For an event organised in just a few days it was a remarkable turnout. The square was a sea of yellow, the colour that had come to symbolise Allison’s fight. Many said they had taken time off work or travelled miles to be there.

  Earlier in the year, a young Gold Coast mother, Tara Brown, had been killed after her ex, Lionel Patea, ran her off the road. Patea had beaten Brown’s head in with a metal plate as she lay trapped in her upturned car. People were fed up with violent men treating their partners like property and it showed in their placards. One called for ‘Justice for women’; another simply said, ‘Enough’.

  Channel 9 Today Show co-host Lisa Wilkinson hastily rearranged her schedule to fly in from Sydney as MC. Allison’s parents, brother, sister and extended family were there. Bruce and Denise Morcombe, whose son Daniel had been murdered 12 years earlier, travelled down from the Sunshine Coast to lend their support.

  When it was over, Nicole Morrison was in tears. Criticism from the legal fraternity – who had widely characterised protesters as an ‘ill-informed mob’ – had hit particularly close to home. Morrison’s husband, Simon, was the co-founder and managing director of Shine Lawyers. He was also a past national president of the Australian Lawyers Alliance. He was by her side at the rally.

  Meanwhile, Bevan Slattery was hanging back, watching it all unfold. His latest business, Megaport, had listed on the ASX the previous day; its price had immediately jumped 75 per cent. This rally was an achievement on an entirely different level. Slattery’s strongest memory from the day would be seeing the Morcombes and Dickies standing side by side in the shadows of the stage. The courage it took these two couples to be there reliving their loss would stay with him forever.

  I ran into Slattery and stood with him for a while. He was constantly on his smartphone and I later learnt he’d been messaging the new prime minister, Malcolm Turnbull, whom he had known for 15 years. Slattery had a direct line to the PM and had been filling him in on the rally.

  It was kept quiet, but Turnbull and his wife, Lucy, had considered recording a video message about domestic violence for the rally. Slattery called it off two days before, after hearing of the chief justice’s comments at the Christmas legal gathering. In an email to the Turnbulls, he’d warned them of bitter recriminations from the legal establishment. ‘There is commentary which I find personally disappointing with respect to the rally,’ Slattery wrote in the email.

  Some commentary from the chief justice today was particularly disappointing in which she appeared to misunderstand how democracy works – and that while the separation of powers is a cornerstone of our democracy, so is the ‘will of the people’. Our rights to have peaceful assembly, our rights to freedom of expression, our rights to disagree respectfully with decisions of the court, our rights to seek to change laws. These are as much, if not more so, the foundations of democracy.

  Federal Opposition Leader Bill Shorten’s wife, Chloe, had her own connection to Allison. The two women were once in a small mothers’ group together and had gone on to be mums at the same west Brisbane kindy. Chloe spoke to me soon after the downgrading of Gerard’s conviction for a story in News Corp’s Sunday papers.

  One of Chloe’s school friends had been strangled by an ex-lover more than 20 years earlier. The Queensland Court of Appeal had downgraded the murder conviction to manslaughter in that case too. To see the same thing happen with Gerard made her see red. ‘It just made me sick and it also outraged and just flabbergasted me that we’re still in this kind of space,’ she told me.

  Populist politics by both sides? Or a genuine will to seize the moment and reduce the unfathomable toll of domestic violence? Whichever way you looked at it, Allison’s death had the attention of the most powerful political figures in the nation.

  Parallel to the rally, a mum from Crows Nest, near Toowoomba, had launched an online petition calling for a High Court appeal. Nicole Morris (not to be confused with Nicole Morrison) runs the Australian Missing Persons Register, a website that spreads the word when people vanish. Morris, a nursing assistant, set it up after she watched a television documentary and realised there was no national database of the missing. For more than a decade, free of charge and from her own home, she’s helped desperate families look for loved ones. When Allison went missing, Morris put out appeals and sent a Facebook message to Gerard’s sister Olivia offering assistance. The message went unanswered. She couldn’t recall another time where a relative of a missing person failed to respond to an offer of help.

  When Gerard’s conviction was downgraded, Morris vented online. The readers of her website were all outraged too, so she launched a petition. Less than two weeks later, by the time of the rally, more than 120,000 people had signed it. When Morris printed it to send to state Attorney-General Yvette D’Ath, the petition took up 3200 pages.

  Some people took offence to these developments and rushed to defend the courts and criticise the public.

  Author John Birmingham used his Fairfax column to attack the ‘mob in bright yellow frocks and shirts’ at the rally. ‘They didn’t see themselves as a mob at all. They thought they were decent people coming together to right the wrong … But they were still a mob,’ he wrote. ‘Why bother with courts after all, when a couple of thousand angry punters are on hand with pitchforks and burning branches?’ Writing separately on his blog, Birmingham added that The Courier-Mail had been ‘rubbing itself all over the Baden-Clay murder case’.

  Geoffrey Luck’s opinion piece for Quadrant Online was run under the headline ‘Mob rule in Brisbane’. It began, ‘A cogently argued decision by Queensland’s Court of Appeal that reduced a murder conviction to manslaughter has drawn protests and, to its shame, rabble-rousing front page headlines in Brisbane’s local rag.’ Not trying to hide his condescension, Luck added that the ‘mob’ had ‘read the headline, but not the judgment’.

  As far as I was aware, none of the most strident critics had been to a single day of court proceedings and it showed. They lacked an understanding of the evidence. Falling over themselves to support the establishment allowed them to be intellectually lazy. They seemed to presume the Court of Appeal was correct because it was the Court of Appeal. Enough said. How could the hoi polloi possibly understand anything as complex as the law?

  As it would turn out, the mob’s understanding of this case would be greater than anyone gave them credit for. The week after the rally, just before Christmas, Director of Public Prosecutions Michael Byrne told the Queensland Government he’d made the call. He would take the case to the High Court. The downgrading of Gerard’s murder conviction would be one of those exceptionally rare cases challenged by prosecutors in the nation’s highest court. After all the bluster of legal experts and commentators, there was a case for appeal after all.

  Byrne worked through the Christmas break to ensure the paperwork was lodged on time. On 4 January 2016, he filed documents asking the High Court to set aside the Court of Appeal’s ruling.

  Not everyone was immediately impressed. The Australian newspaper ran a prominent report on 9 January attacking the Crown’s appeal. Robert Richter QC, who was described in the report as ‘one of Australia’s leading and highest paid criminal barristers’, had told Melbourne reporter Greg Brown a key argument in the appeal was ‘absurd’. The appeal was
likely to fail, the headline asserted. Richter’s condescension went, well, off the Richter scale:

  As I understand the reasoning makes complete sense legally speaking and the public is really not equipped to make those sort of legal decisions. If you have hysteria in the tabloids it’s not based on a proper understanding of the law.

  It was a big case, but the cavalry was about to arrive – on a Harley-Davidson. Byrne had asked one of the country’s most formidable lawyers to lead the case to restore Gerard’s murder conviction.

  Vindication

  Queensland’s leading silk was in his 60s but he hadn’t lost his adventurous streak. In his spare time, Walter Sofronoff has been known to cruise around in a Ferrari, roar through the streets on a Harley-Davidson and take to the skies piloting vintage planes. He was perhaps fortunate to survive one such outing, after his 1940s de Havilland Tiger Moth crashed on take-off in 2014. He ploughed through a fence and hit a tree, coming to a halt just metres from a highway. He played it down, saying afterwards he hadn’t suffered a scratch and it was no big deal. Sofronoff’s father was a Russian Cossack who had fled the communist regime on horseback in the 1930s; his mother had worked in a Brisbane boot factory on what would become the Inns of Court site, where barristers had their chambers. As he rose to the pinnacle of that profession, Sofronoff became universally known as The Cossack, a moniker he uses in his email address.

  If anyone was up for a challenge it was Sofronoff. He’d led the Crown’s previous appeal to the High Court almost a decade earlier. That case had involved the Queensland Court of Appeal quashing a man’s conviction over a drug shooting. Sofronoff won that encounter, with a five-member High Court panel unanimously reinstating the conviction. I discovered another intriguing parallel: Catherine Holmes was one of the Court of Appeal judges in both cases. History was repeating.