by David Murray
It was longstanding convention for the state’s solicitor-general to handle High Court appeals. Peter Dunning QC held that position, earning a six-figure retainer to advise the government and act as its chief legal counsel. But Dunning had limited criminal law experience; Sofronoff was Dunning’s predecessor and his High Court success could not be ignored. When Sofronoff’s role in the Baden-Clay case emerged by word of mouth, lawyers all over town sat up and took notice. ‘Walter is possibly our best all-round silk. And he has certainly got the respect of the High Court,’ one told me. Another said: ‘He’s one of the finest appellate advocates we have ever produced. He does everything, but he’s exceptional at appeals.’ Sofronoff got cracking on the grounds for the High Court appeal with prosecutor Danny Boyle.
I was hearing rumblings of dissent in legal ranks about the Court of Appeal ruling. Some senior figures felt, as the people did, the court had seriously overreached in setting aside the jury’s verdict.
A retired judge with more than 50 years’ experience in the law analysed the decision in depth. He slammed the appellate court for losing sight of the Crown’s case, saying the judges had wrongly jumped to conclusions about the jury’s reasoning and that it was ‘nonsense’ to suggest there was no motive. It was everything that had concerned me all along. He even took aim at the judges for speculating Allison may have died after hitting her head in a fall. ‘Death may supervene eventually, or even rapidly, from a severe blow to the head, but it is usually preceded by a period of unconsciousness, brain swelling, subdural haemorrhage and then brain death,’ he said. ‘One would expect that even an angry or despairing husband who had brought about such a calamity unintentionally would phone for an ambulance or doctor and at least give what aid he could.’
I reported the views of the retired judge on 1 February 2016, but he didn’t want to be identified because he didn’t want to court controversy. Others said they couldn’t speak out because they had to appear before the judges involved. Meanwhile, professional legal bodies were flatly refusing to respond to formal questions. I was starting to view the courts as one giant protection racket.
Later on the same day that the retired judge’s comments were published, Sofronoff and Boyle filed their submissions in the High Court.
For High Court appeals to go anywhere, they first have to be granted special leave to appeal. Very few cases clear the first hurdle. Bill Potts, the new Queensland Law Society president, told media the High Court agreed to hear less than five per cent of cases brought to them.
The Baden-Clay appeal soared over that hurdle on 12 May 2016, when High Court judges Virginia Bell and Stephen Gageler ruled that it should go to a hearing. A supposedly ‘absurd’ case had been taken on by the highest court in the land, while the vociferous defenders of the Court of Appeal decision were suddenly awfully quiet.
The hearing went ahead in Brisbane on 26 July 2016. From the moment the Commonwealth Law Courts Building opened, a line formed outside the locked courtroom door. Soon it stretched across almost the entire floor. With half an hour to go before the hearing was to start, more than 100 people were waiting to get in; staff told me they could recall few cases that had attracted such interest. Five judges would hear the case: Robert French, the chief justice; Susan Kiefel; Patrick Keane; Virginia Bell and Michelle Gordon.
Sofronoff walked in confidently in his wig and gown. An aura of fearlessness surrounded him. An amateur theatre fan (he’d earned rave reviews for local productions of Macbeth), he was entirely at home in the theatre of the courtroom. On the other side, Gerard’s team was unchanged, although Michael Byrne would now do the talking. Proceedings had the formality of a bygone era. The judges entered and sat down in unison, with clerks hovering attentively behind each one to push in their large chairs.
The next two hours were nothing short of remarkable. Sofronoff and Boyle meticulously dismantled the Court of Appeal’s decision, starting with the finding that there was no motive. Sofronoff also pointed out that Gerard ran a ‘murder or nothing’ defence at the trial. Byrne had told the jury Gerard either murdered Allison or expected her to walk back through the door. Byrne had agreed with the trial judge that, firstly, this was a tactical position, and secondly, that there was ‘no suggestion’ of a fall because there were no fractures.
But the most memorable moment of the hearing was delivered by Justice Keane, a former Queensland barrister. While Sofronoff spoke, Keane had listened in silence. But after Byrne rose to speak for Gerard, Keane emerged like a crocodile that had been waiting in the shallows for its prey. In a short but devastating burst, Keane unleashed his blunt observations about Gerard’s appeal. ‘He has had the opportunity to give the evidence; he has given the evidence: it is inconsistent with any notion at all that there was an unintended killing by him,’ Keane thundered.
There, in the High Court, Keane had said exactly what the public had been declaring all along. Lawyers and commentators had mocked ordinary people for making the same point. No one mocked Keane.
By the end of the hearing it was clear Sofronoff and the people had come out on top. Still, I’d picked the last appeal wrong. Maybe the judges were just playing devil’s advocate.
High Court decisions can take three to six months to hand down, but this one moved quickly. Just over a month later it was announced the High Court was ready to deliver its decision. It was to be delivered in Canberra on 31 August 2016. One way or another the case was finally going to be at an end. There would be no more avenues of appeal.
Geoff and Priscilla Dickie didn’t want to spend one more day in court; they decided to stay at home in Ipswich and wait with friends and family for the outcome. Kerry-Anne Walker, Allison’s closest friend, flew to Canberra in their place. Nicole and Simon Morrison and Bevan Slattery met her there. The four of them walked into court steeled for anything.
No one apart from Allison’s friends noticed at the time, but one other familiar face was there that day. Ian Drayton, Allison’s first fiancé, had been at his Canberra home watching the Today Show when he saw the High Court decision was to be delivered that morning. More than four years earlier he’d learnt of Allison’s death while watching the same show, his cereal bowl slipping from his grasp and smashing at his feet.
Allison had fatefully chosen Gerard over Drayton years earlier, but she had never been far from his thoughts. He got dressed and, on a whim, went straight to court to hear the decision. When Kerry-Anne saw Allison’s first love arrive, she was overcome with emotion; they hadn’t seen each other for 20 years. She couldn’t help but wonder what might have been for Allison.
They all sat together, holding their breath. Nicole Morrison thought one of the High Court judges was looking straight at her and told herself it was a good sign. Kerry-Anne knew the Brisbane hearing had gone well but didn’t want to get her hopes up.
Exactly four years, four months and 11 days after Allison was reported missing, the High Court gave its unanimous ruling in The Queen v Baden-Clay. The Crown’s appeal was allowed. Gerard’s murder conviction was restored. This time it was really over.
As soon as they were out of the courtroom, Kerry-Anne and Nicole phoned Geoff and Priscilla and told them what had happened. The mood was ecstatic; after what they’d been through, who could blame them? As far as the Dickies were concerned, an injustice had been set right.
Priscilla knew Kerry-Anne was about to address the media and in the emotion of the moment told her not to hold back on Gerard.
‘Stick it to him,’ Allison’s mum said.
When the call ended, it all started to sink in for Priscilla and Geoff. They needed some time to themselves and left the room to be on their own.
Everyone blamed themselves for Allison’s death. Allison’s parents thought they hadn’t been good enough parents. Her friends thought they hadn’t been good enough friends. They all still suffered sleepless nights.
As Kerry-Anne was about to walk outside, two burly, bearded men from the Maritime Union of Australia stopped to
check she was ready to face the waiting cameras. The men had just won their case in the High Court too. ‘It’s a good day for the good guys,’ one of them said, smiling.
Kerry-Anne is not the type to crack easily, but those words made tears spring to her eyes. Combined with seeing Ian Drayton and achieving a result almost everyone said was impossible, she only just managed to keep it together as she spoke to the media at the front of the High Court.
‘Today’s decision in the High Court comes with relief and elation,’ Kerry-Anne said in a speech shown live on several networks simultaneously. She continued:
Despite many Queenslanders being labelled as ignorant when they protested the downgrade to manslaughter, the common sense of the original jury has prevailed and justice for Allison has finally been realised.
The ignorance, it seems, lay elsewhere.
The law has acknowledged what we, who were closest to her, knew from that very morning Allison went missing – that is, that she was murdered. Gerard Baden-Clay murdered his amazing wife Allison. The evidence in the original trial displayed his intent as well as his character. Today’s decision brings to an end Gerard’s attempts to smear Allison’s name.
Four and a half years ago, three beautiful girls went to bed with a mother and the next morning they woke without one. He let them and the whole community worry and anguish for days about what had happened. In a fair and open trial a jury found that there was enough evidence to convict Gerard Baden-Clay of murder. They felt there was motive and certainly intent. Thankfully, today Australia’s High Court judges agreed with this decision and have reinstated the conviction of murder.
Slattery went straight back to Brisbane. It wasn’t until later that night that he read the High Court’s decision, and only then did it hit home. His first feeling in court had been relief, but the judgment brought on another. Vindication. If the High Court appeal had failed, he’d planned a lobbying blitz for a change in the law. But no change was necessary – the law just hadn’t been correctly applied by the appellate court.
I’ve heard Gerard was also making plans for what happened if the High Court ruled in his favour. Had the Crown’s appeal been rejected, he was going to have his lawyers argue he should be immediately released because he’d been treated so poorly in the media.
The High Court did not pull its punches. Its criticism of the Court of Appeal’s decision was comprehensive.
The judges of the Queensland Court of Appeal were found to have delved into ‘mere speculation or conjecture’. Their theory that Allison fell and hit her head ‘was not based on evidence’ and had been expressly ruled out by Gerard and his defence counsel at the trial. On this point alone, the murder conviction would have been restored. But the High Court said it was necessary to go further.
On the claim there was no motive, the High Court said bluntly: ‘That was an error.’ The Court of Appeal appeared ‘not to have considered and weighed all the circumstances established by the evidence at trial’. There was Allison’s venting and grilling, the prospect of her discovering the affair was ongoing, Gerard’s promises to be free of his wife by 1 July, his inability to afford a divorce and the possible meeting of wife and mistress at the real estate conference the next day. It was also open to the jury to decide whether Gerard’s disposal of his wife’s body and his lies went ‘beyond what was likely as a matter of human experience’ to have followed an unintentional killing.
The High Court rapped the appellate court over the knuckles for failing to give due respect to one of the cornerstones of our justice system – the jury system. It warned that the system should never substitute ‘trial by appeal court for trial by jury’.
The High Court’s remarks were effectively a carbon copy of the submissions of Sofronoff and Boyle. There was plenty more in the judgment, but the High Court’s final point was that killing wasn’t exactly easy. The ‘difficulty involved in killing a human being without the use of a weapon unless the act of killing is driven by a real determination’ could also be considered by the jury. ‘Upon the whole of the evidence led at trial, it was open to the jury to be satisfied beyond reasonable doubt that the respondent was guilty of murder.’
The people had been right all along.
Someone recently told me the story about what had happened a month prior to this ruling, immediately after the High Court hearing in Brisbane. No one could know for sure how the five judges were going to rule, but Sofronoff had a fair idea. If he’d been supremely confident going into the hearing, he was even more so afterwards. When he walked out of court, he had good news for Allison’s family and police.
‘I think we got that 5–nil,’ he told them. He was dead right.
One of the most remarkable stories to emerge from the High Court appeal was unearthed by The Guardian’s investigative reporter Josh Robertson. It concerned the bill for Sofronoff’s services. The going rate for a barrister of Sofronoff’s standing is up to $17,000 a day. For the entire Baden-Clay appeal to the High Court, he had billed taxpayers just $327. He’d done the appeal as a public service, not for profit. It was possibly the best money ever spent on a lawyer. In an interesting twist, on 31 March 2017 the Queensland government named Sofronoff the new president of the Court of Appeal.
The law
It was an error, plain and simple – actually, a series of them. After the High Court restored Gerard’s murder conviction, some people tried to portray the judgment as setting a precedent that rewrote the rulebook. That perception still lingers, but it’s actually the opposite. It was the Queensland Court of Appeal that had set a precedent after misconstruing the law. Had their decision been allowed to stand, other courts would have followed suit. The instinct of investigating police was right – the bar for what constitutes motive and intent had been raised and it would have been harder to get a murder conviction.
The High Court decision refers to prior cases overlooked or ignored by the Queensland Court of Appeal as it went off in its own direction. Their arguments drew on cases cited by Sofronoff during the hearing, among which were two very famous murder cases.
The first was that of Hendrikus Plomp, who drowned his wife Fay in the Southport surf in the ’60s. He’d reported her missing and her body was found on the beach a short time later. Plomp, like Gerard, had been seeing another woman and had promised they’d be together. The High Court found Plomp had ‘the strongest reasons to be rid of his wife’. His love affair was a motive for murder.
Plomp is Law 101. Law students learn about it in their earliest university lectures. The Court of Appeal’s finding that Gerard did not have a motive to kill Allison – despite his affair and promises to Toni McHugh – was a basic error.
The other significant case Sofronoff applied was that of Johan Weissensteiner, who was convicted of a double murder in the ’90s. Weissensteiner was travelling on a yacht with a couple who disappeared without trace. He chose not to give evidence at his trial. The case went to the High Court, which found Weissensteiner’s silence could be used to rule out scenarios consistent with his innocence, as he had been the one person who knew what happened and chose not to offer any explanation.
Gerard went even further – he testified he simply wasn’t there when Allison died. The High Court said the prosecution’s case against Gerard was stronger than in Weissensteiner because unlike Weissensteiner, Gerard had given evidence, but (the jury must have decided) he had lied. This was the same as giving no evidence at all. The result, however, was not only a vacuum in the evidence, like Weissensteiner, but a vacuum that raised a new issue: Why would he lie? Because he was hiding the truth that he intended to kill?
Weissensteiner is another landmark case, but no one had previously thought to apply it. The Court of Appeal didn’t even mention it.
Some commentators persist with the line that these are issues beyond the public’s understanding. Gary Johns, writing in The Australian, claimed Gerard’s conviction was restored on a ‘highly technical point’. Johns wrote, ‘The High Court di
d not reinforce the opinions of the man in the street or of some media. The reasoning in both courts was very fine … Reasonable minds may differ on such matters.’
Utter rubbish. The High Court absolutely reaffirmed the views of the man and woman in the street. People protested the Baden-Clay decision because it did not make sense. The people said, ‘Why didn’t Gerard raise this explanation before?’ The High Court agreed.
This was about common sense, not legal technicalities. The best legal minds know the law almost always accords with common sense. When it doesn’t, there’s been an error and it needs to be corrected.
The High Court’s ruling will now stop lower courts from veering dangerously off course in future determinations of manslaughter or murder. Delivering this important clarity is one of Allison’s most significant legacies – preventing Gerard and others from getting away with murder.
EPILOGUE
Many true crime authors wait until all appeals are over before publishing, but that process can take years. When we were preparing the first edition of this book we were moving much more quickly. There were some paths that at the time I either couldn’t, or didn’t want to, go down. With the appeal process over, there’s a chance to go into issues that have interested me and, I know, others who have followed this story intently. It’s also a chance to address ‘Frequently Asked Questions’, and to share developments in the lives of some of those named in this book.
Finally, and most importantly, in the few years that have passed since Gerard was convicted, I’ve come across some startling information that has never been made public. I thought I knew all the major details and then … I came across a whole lot more. So, here we go, in no particular order.