Baden-Clay: Jury had to be sure Gerard dumped Allison's body
GERARD Baden-Clay's barrister argued the jury must be satisfied his client dumped wife Allison's body at Kholo Creek before they could conclude he had killed her.
Barrister Michael Copley, acting for Baden-Clay, told the Queensland Court of Appeal that the trial judge should have directed the jury on this point, and on blood in found in Allison's car, as he appealed the murder conviction.
But Crown prosecutor Michael Byrne told the court the direction was not sought at trial and Baden-Clay must prove that might have affected the verdict.
"It is my submission it was open to the jury to find either on the basis of manslaughter or murder that (Baden-Clay) was criminally liable for the death of the deceased woman, even without the blood in the Captiva," he said.
"The death occurred at the house … she was found 13km away.
"She could not have got there without being transported. Whether the Captiva or another vehicle did not matter.
"The distances were too great for it to be a pedestrian journey and to get back in time."
But Mr Byrne said despite that, the Crown submitted there was strong evidence the blood was not put there any other time.
He said there was no evidence Allison had previously injured herself, the car had been purchased less than two months before Allison's death and the children had not seen their parents in the back of the car.
Mr Bryne said there was sufficient blood to cause rivulets down the door and one child told police that third row of seats was rarely used.
"There is evidence the jury could act upon to accept it was likely that the blood was put there after she had been injured through a fatal attack," he said.
"It is a short series of dots to connect the proposition that he drove her there.
"But it's still not one that needed to have been proven beyond a reasonable doubt."
Mr Copley said placing the body at the creek should have been indispensable in the jury reaching a conclusion.
He said it was not a "link in a chain case but a strand in a rope case".
"The argument that's advanced is that because the Crown case was that the killer put the body under the bridge then that was indispensable intermediate fact they had to be satisfied of before they could conclude my client was the killer," he said.
Justice Catherine Holmes questioned whether it was an indispensable link.
Mr Copley replied: "If the jury were not satisfied beyond reasonable doubt that he put the body under the bridge then the argument is they could not be satisfied of cause of death because the Crown case was that he put the body there, it wasn't that someone else came and helped".
Justice Holmes said the jury did not have to "believe every word of the Crown case".
Mr Copley argued the blood in the Captiva was the only circumstance available that Baden-Clay took her to the creek.
He said the Crown case was that whoever put her at the creek was the killer.
Mr Byrne also responded to earlier suggestions from Baden-Clay's lawyer about face scratches and motives for killing.
"The jury were entitled to use the lies about how the scratches were caused. They were entitled to rely on the attempts to disguise the scratches with the finer marks, the abrasions, and it was open to convict on the murder on that basis," he said.
"We urge upon the court to recognise that which is well known … that the jury does have an advantage.
"They saw this man testify over a few days … they had the advantage of seeing and hearing him deny and making their own assessment as to whether he was under the pressures that he, in effect, said didn't exist.
"They saw him deny the murder of his wife and they were entitled, almost obliged, to take into account what they saw from the witness box."
Mr Bryne said the jury could find there was an injury to hide which showed evidence of a conflict between the two.
He said there were motives for Baden-Clay to act uncharacteristically noting lies had persisted for years, there was blood in the car and leaves from the Baden-Clay's Brookfield home on Allison's body.
"Decomposition of the body may well have covered it but if there was a bleeding, there was some injury," he said.
"There are a couple of undoubted statements of factual certainty.
"Allison Baden-Clay was killed and she was even killed at the premises.
"The accumulation of circumstances pointed, or at least left it open, we say pointed strongly, to the proposition she was killed at the house."
EARLIER: Scratches on Gerard Baden-Clay's face don't prove guilt
THE legal team for Gerard Baden-Clay have argued a jury could not use the scratches on his face to reach a guilty verdict because even experts could not reach a firm conclusion.
Barrister Michael Copley, acting for Baden-Clay, told the Queensland Court of Appeal experts agreed three lineal lines down the father of three's face were most likely consistent with fingernail marks.
But he said experts were equivocal about whether other marks further down Baden-Clay's case were made at the same time or with the same implement.
The Crown argued at trial the linear lines were from wife Allison fighting for her life and the lower abrasions from Baden-Clay using a razor to try and disguise the other marks.
Baden-Clay has always maintained he made all the cuts shaving.
Mr Copley said concluding Baden-Clay was trying to disguise fingernail scratches meant the jury must believe the cuts were made at different times with different implements.
"The evidence did not establish that they were," he said.
"So the contention that's made is this, if experts could not say whether these marks on the lower part of the photograph were made at a time separate to the linear abrasions running along the cheek, then how could they represent an attempt to disguise the three linear abrasions.
"They had to be inflicted by a different implement otherwise there wasn't a disguising going on.
"The jury was invited to infer guilt of murder on the basis on conduct he had not engaged in."
Mr Copley said "for all that we know" this could have tipped the jury in favour of a guilty verdict.
"We just don't know," he said.
Mr Copley also argued the verdict was unreasonable - questioning what evidence elevated the case from a manslaughter to an intentional killing.
This same argument was part of a "no case" submission during the trial, when the jury was absent.
He said while it was open on the evidence that Baden-Clay caused his wife's death, there was no suggestion it was pre-meditated.
Mr Copley said there was no threat to harm or kill and nothing to suggest either person in the marriage had abused illicit substances or alcohol "such that inhibitions may have been broken down on the night".
"There is no evidence in this case that there had ever been violence between the parties," he said.
Mr Copley said the Crown argument that three pressures were coming together or cumulatively building on Baden-Clay did not stand either.
The suggestion at trial was that Baden-Clay had escalating financial problems, had pressure from his mistress Toni McHugh to leave his wife and problems with his wife Allison after she learned of the affair.
The Crown also focused on the fact the two women were to meet at a real estate conference the day after Allison went missing in April, 2012
But Mr Copley pointed to particular evidence and the pattern of the marriage to suggest the notion he was "moving towards a departure from his wife is not sustainable".
"The evidence as to his intentions with regard to either woman was at best equivocal," he said.
Mr Copley said none of the friends Baden-Clay had borrowed money from were demanding the principal be repaid immediately.
EARLIER: Baden-Clay in Supreme Court to fight murder conviction
QUEENSLAND'S highest court will today hear arguments Gerard Baden-Clay suffered a miscarriage of justice when he was convicted of murdering his wife Allison.
Baden-Clay, who has always maintained his innocence, was sentenced in July last year to life imprisonment after a jury convicted him of the offence at their Brookfield home on April 19 or 20, 2012.
His lawyers are expected to argue in the Queensland Court of Appeal that the jury's verdict was unreasonable.
"The jury should have been, but was not, directed that the presence of the deceased's blood in a motor vehicle was only relevant if the jury was satisfied beyond reasonable doubt that the presence of blood was attributable to an injury sustained to the deceased's body on the evening (he is accused of killing his wife)," the original appeal grounds, lodged in the appeal court registry last year, read.
"The trial judge erred in law in not directing the jury that they needed to be satisfied beyond reasonable doubt that the appellant placed the body of the deceased at Kholo Creek in order to use such a finding as post-offence conduct going to guilt.
"The trial judge erred in leaving to the jury that the appellant attempted to disguise marks on his face by making razor cuts."
The final appeal grounds, which sometimes alter from the original documents lodged, will be outlined in the court today.
- APN NEWSDESK