Gerard Baden Clay's murder appeal

DNA Solves
DNA Solves
DNA Solves

New Posts

Status
Not open for further replies.
I do feel sorry for the other blokes in that prison.. and the guards.. being subjected to Gerard's highpitched little voice, with it's tiny slurring impediment , day after day, for years, years, same stories, same asinine jokes at the exact same point in the story, over and over, is a whole other punishment other than deprivation of liberty.

How Gerard loves to talk. About himself mostly, but he has advice on almost anything at all. Unhindered by the slightest sense of disqualification, Gerard is willing to yak on for hours. . and he has a captive audience in so many ways in addition to their imprisonment.. men who cannot exchange their exercise shift, or their meal shift, ... even their shower and shave shift.. it's enough to make one weep...
 
Thank you Amee for the twitter feed. Much appreciated.
 
alioop said:
It's done. I will write up my take on it all but I feel there are serious flaws in the appeal and it won't be successful.
Click to expand...

Really heartening to hear that, Alioop. Thanks for posting that, and thanks in advance for your forthcoming write up about it.
 
Trooper said:
I am curious as to whether the sister, Olivia Baden-Watson whatever rocks up.. .. the old directive of family being offlimits doesn't apply to Olivia who made herself front and centre of the entire shindig from the get-go... Olivia saw herself as something akin to the Master of Ceremonies at a very bad wedding.. here is Olivia, taking her brother out shopping.. .. here is Olivia , calling a press conference (!!) .. here is Olivia at the court , calling another press conference,, and ( the final mad folly ) here is Olivia being 'character witness' for Gerard and a 'character witness' for Alison.

And what a witness she was. It was Olivia, never let it be forgotten, who first floated the idea publicly that Alison was a bit vague and 'suffering from depression'... this was way before the body of Alison was found.. . . and so it continued, until , driven by her own folly, Olivia got in the witness stand to lay out her story, of the mad and lazy Alison and the upright and hardworking Gerard.. it was disgusting..

But it wasn't just me who found it disgusting.. the Judge took quite a bit of time laying out in excoriating, exquisite detail , just how reprehensible and revolting Gerard, Olivia and Nigel were for attempting to colour this picture of Alison to their own benefit and how it would resonate down the years as a thing of shame and humiliation for them.. .. as so it did, and has. .

I an curious to know if Olivia is still at it.. . raising funds, telling the women in her troppo church how to be 'authentic' , looking after Nige and Elaine. keeping the barristers and solicitors up to scratch, all the busyness of Olivia writ large.. is it still going on? anyone know?
Click to expand...

Well of course she did (no show without Punch), still flying the purple colours of house Bad 'n' Clueless.

I can just picture the moment when they arrived at that brilliant strategy: "Well Mummy, if those shabby annoying people without a single Debrett's entry to their name can wear yellow, we can be team purple! It's the opposite colour and everything!"

It's still just a <modsnip> game to her. Sickening.

Thanks to Amee and Ali for the updates.
 
I don't get it. How can he now say he may have killed Allison accidentally and acted in panic to get rid of her body when he has denied any involvement over and over and over again.
 
BreakingNews said:
I don't get it. How can he now say he may have killed Allison accidentally and acted in panic to get rid of her body when he has denied any involvement over and over and over again.
Click to expand...


ahh well , he is not actually saying it.. his barrister is floating the concept, seeing if it will sail on , a testing of the waters... highly unlikely to float.. at this stage of Gerard's life, it is all about words, concepts, possibilities, perspectives.. from the side where law lives, its about fact and evidence.. .. . Gerard will let anything be said that has the merest chance of raising interest.

In 15 years, when he is eligible to apply for parole.. ( this , by no means , can be taken as him actually getting it , it is a very long process usually) he does have to come to grips with admitting to the murder.. remorse is one of the buttresses of parole.. a convincing display, too, over many months.. it will be the one flawless performance Gerard has to produce. He has to persuade a panel of people who's business it is hearing the most terrible sob stories.. Gerard will have to be as suave and sincere as he possibly can be. At this point in his life, there will be no nonsense re accident , maybe accidental, maybe some other explanation. The Parole board doesn't try his case again, that's not their brief.

They are there to adjudicate if Gerard Baden-Clay is reformed and remorseful and re-educated enough to be re-admitted on a very short leash out in the public domain under strict supervision.. and will they? time will tell.

I do see Gerard being an almost perfect prisoner.. in the sense that he is unlikely to instigate a riot or burn his cell. He will, as he did outside prison, cause endless trouble of the nature that defies explanation or description.. that kind of crazy stuff that has people speechless , even poor giftless criminals. . There will be a long line of prisoners who come within Gerard's orbit who won't know what struck them, its inexplicable.. all they know is they got done like a dinner, but they don't even know how. . That's how Gerard operates.

There will be the usual nutso large women who will write to him in Christian goodness and forgiveness, obeying the biblical precept, and end up scammed and brokenhearted , and that's if they are lucky.. the unlucky ones will be forever hooked , like Toni.. forever waiting for Gerard. Forever in a fantasy.
 
These are my notes of today’s appeal. Most is word for word so if bits appear disjointed thats why.

My comment for background- in a circumstantial case the prosecution does not have to prove beyond reasonable doubt every piece of evidence. Rather it is the whole of the evidence put together that the prosecution has to prove beyond a reasonable doubt for a conviction. Also not every link in the chain put forward by the prosecution has to be accepted by the jury beyond reasonable doubt.

Ground 4 of the Appeal

Defence submission- Jury was invited by the prosecution to infer murder by GBC’s conduct to disguise the abrasions (scratches) with smaller marks using a razor. The evidence didn’t show that the abrasions and marks were made at different times by a different implement.
Referred to the experts evidence. Whilst all the experts thought there were 2 types of injuries and that they were different types that looked slightly different in terms of when they were made, on cross examination when they were asked if they were certain the injuries were made at different times, they said they couldn’t be certain. So if the experts couldn’t say if the injuries were made at different times, then how could the jury determine when they were made.

Prosecution submission- There was clear and undisputed evidence that the small marks were caused by a razor. GBC said this in saying all the injuries to his face were caused by the razor at the same time. Evidence was available to the jury to establish that the abrasions/scratches were not caused by a razor. Dr Hoskins’ evidence concerning timing speaks of different ages of the abrasions and the marks. He saw a photo taken at 1 pm on 20 April, and said the finer marks were made at 7 am or after and the other injuries likely being older. That fitted with the prosecution case suggesting an earlier violent confrontation regarding the scratches and then later finer marks. It was open to the jury to accept that they had occurred at different times and that the likely cause of the earlier ones being fingernails.
The case from GBC was that the whole of the injuries were caused by shaving. It must be open to the jury that they were caused at different times and the razor cuts were done to disguise the earlier marks.
The difference between scientific certainty and reasonable deductions in a circumstantial case must be acceptable otherwise you couldn’t convict in circumstantial cases. The end proposition is that there was sufficient evidence to convict and any scientific uncertainty didn’t preclude the jury from convicting him.

Grounds 2 and 3 of the Appeal

Defence submission- Jury should have been directed that they needed to be reasonably satisfied GBC had put the body in the creek, before they could find him guilty of murder. A conclusion that he did put the body in the creek would assist in a conclusion re the cause of death and lead to a conclusion that he caused her death.
Note- Judge Holmes said there were other circumstances to conclude guilt so why did the jury have to conclude he put the body under the bridge. He could have called someone up to do it. ( She wasn’t suggesting that happened, just that regardless of how she got there, he still could have killed her.) The Judge continued by saying the jury don’t have to believe every word of the prosecution case so it’s not an indispensable requirement for the jury to find he put her under the bridge even if that was the prosecution case.

Defence submission- The presence of blood in captiva was the only evidence the prosecution presented that she was transported to the creek. That the blood got there that night was was a fact the jury had to accept before they could conclude he killed her.
Note- Judge Holmes asked does it matter what vehicle she was taken in? Just because of the way the prosecution runs its case, the jury doesn’t have to know exactly how the body got transported there, just be satisfied that he took her there.
Another Judge spoke about blood in the car and asked why couldn’t the jury accept or not accept it. Why do they have to accept it ( that it was placed there that night)
beyond a reasonable doubt?

Defence submission- It was open to the jury to find that he caused her death unlawfully. What was the evidence that elevated this to intentionally causing her death? There was no reliance on premeditation, no evidence there was ever violence between the parties, no evidence he had ever made a threat to kill or harm her, or use of drugs or alcohol to break down inhibitions on the night. The prosecution contended there were 3 pressures coming together that night.

1.From Toni McHugh- referred to emails where he desired to have a relationship with her in March and April and he said he will be separated by a date. Statement to the counsellor that he made after that was that he wanted to build a future with his wife. It may or may not have been true. Evidence of his intention therefore was equivocal.

2. All the circumstances of his marriage- In 2010 he told his wife he didn’t love her but stayed with her. Then there was the affair but he stayed with his wife. The notion that he was moving towards a departure with his wife is not sustainable even though he told her he didn’t love her and that he had had an affair. The marriage goes on. He goes to the counsellor who tells him that he has to listen to his wife. Nothing in that assertion that was pressure.

3. Business Debts- He owed 3 friends money and asked Bruce Flegg for money. Sure there were financial pressures but they hadn’t changed substantially. Same as in March or February pressures. Nothing had changed.

Girls in the house did not hear any violence, yelling or screaming. This was acknowleged by the prosecution. No blood in house, no evidence of a clean up. The scratches to his face don’t reveal anything at all about the intention he had in a confrontation with his wife, only that she was close enough to inflict them and their relationship was not in a good place. They don’t reveal why she scratched him. Prosecution said she was fighting for her life but it is a hypothesis. Another hypothesis is that they were inflicted in anger or in a struggle at the beginning or middle or end of it. The Dr cannot determine the cause of death which indicates strongly it was not an intentional killing. If she is scratching at his face, they were close enough and he reacts to that by eg an arm over the face that stops her breath. Judge Holmes said that’s not very compelling.

Defence- One hypothesis is it was an unintentional killing resulting from a confrontation that arose out of an argument likely about his relationship with Ms McHugh. It escalates to scratches then death then panic as has a dead wife. He knows that others know he has had an affair, that Toni knows affair still continuing, that he has said he will be with her by 1 July and he has panicked. A jury could not rationally conclude he murdered his wife based on lies how his injuries were inflicted. Everything he said and did in the days after, could be panic.
Evidence of screams in the night went nowhere. No injuries on body consistent with an intentional killing and more in favour that unintentional. Prosecution case is the theory of intentional killing based on the chance of 2 women meeting tomorrow.

Speculation by the prosecution that had the body been seen promptly would have found a cause of death but by putting it in the creek was intended to obscure the injuries he had inflicted. There is no evidence to suggest it would have revealed evidence of intentional killing if seen promptly.

Prosecution submission- No suggestion anyone assisted him to transport the body. The prosecution case is that he transported her as there is her blood in the captiva. No evidence of previous injury to cause her to bleed in the new car in an unlikley spot in the third row and sufficient blood to cause rivulets to the floor. Evidence is that the blood was there after the attack and that she had an injury that did bleed. Even if you remove the evidence of the blood, it was still open on the evidence that he was responsible for her death. The prosecution are reasonably positive that death occurred at the house. Her body could not have got 13 kms away unless the only person there that could have taken her, took her there. It could have been in either car. Significant leaf debris was a telling feature as it was entwined in her hair. The cats claw was from a live plant which was found near the carport. Both cars would be in or near the carport on a regular basis. There were lies about scratches. Open to the jury on that evidence to convict on manslaughter or murder regardless of transporting the body.

Re the blood, if jury entitled to find that blood there after fatal attack, there was an injury to hide. Decomposition may have covered it. Allison was killed at the premises or away. The prosecution case is that it was at the house as the accumulation of circumstances led strongly to the proposition she was killed at the house.

What the scratches do is evidence of conflict between them. Lies persistent over years. Leaves, blood in car, only person in a position to kill her by whatever means was GBC at the house. His relationship with Toni and Allison of ongoing juggling had continued and it was a real risk they would see each other and it would all start to unwind. All these pressures were features that affected his daily life. The jury is entitled to rely on attempts to disguise and open to convict on that basis. The jury has an advantage as they saw him testify for days. They saw him deny and they made their own assessment of if he was under pressures that he denied existed and they saw his denial that he did not kill his wife.

If this court finds the jury couldn’t use evidence of transporting body to convict then the court should look at the total evidence properly admitted at trial. If the court considers no substantial miscarriage of justice occured, they should take that into account.


My conclusion- Appeal will be dismissed.
 
Trooper said:
He would have to be found not guilty of murder to be in anyway offering to cop a lesser charge ( with the consequent lesser sentence).... as far as I know, this appeal isn't set up to find an alternative charge... or an alternative conviction..
Click to expand...

The Court of Appeal do have the power to substitute a verdict of manslaughter, it happens more often than you might imagine. One such case was R v Huebner; R v Maher [2004] QCA 098 (http://archive.sclqld.org.au/qjudgment/2004/QCA04-098.pdf).

In this instance, the Court has 5 options available to them.

1. Dismiss appeal, murder conviction stands.
2. Allow appeal, substitute a verdict of manslaughter (and obviously re-sentencing).
3. Allow appeal, re-trial for murder.
4. Allow appeal, re-trial for manslaughter only.
5. Allow appeal, enter verdict of acquittal.

Had a brief chat with someone who was present today, couldn't offer much more than has already been reported. Virtually impossible to get a "read" from the bench in an appeal, I've seen cases where you would have sworn blind that the Court was leaning one way only to find out in the coming months that you were way off base.

Pretty much as expected I think, prosecution relying on Gerard's elaborate cover stories as evidence of intent. Defence conceding that on the evidence allowed that unlawful killing was very much on the table (but not murder) but not requiring the blood evidence to be proved beyond reasonable doubt rendered the prosecution case defective and thus the jury were improperly directed.

Total speculation on my part but I would not be at all surprised to see a verdict of manslaughter when the dust has settled.

Edit - Posted before I saw alioop's post, thank you for the comprehensive report and also thanks to Amee for the updates throughout the day :)
 
@kimstephens_bt: (Brisbane Times)

How long before Baden-Clay: The Appallingly Bad Telemovie is announced, do you think? 4.38pm


Sent from my iPhone using Tapatalk
 
Alioop, thank you for the comprehensive report. Is it just me or did the defence contradict themselves a few times there? There were a lot of words spoken but nothing much was said IMO.

My prediction is the appeal with be dismissed.
 
To substitute a murder conviction with a manslaughter conviction would need a very great deal more than what the defence barristers laid out today in court. The basis of Gerard's appeal appeared to be anchored on the concept of interpretation. How the judge interpreted his boundaries, and how the judge interpreted his instructions to the jury , and how the jury interpreted those instructions and how the verdict was reached at via those interpretations..

There was no new evidence.. no new witness , no new empirical object of evidence, no new avenue of non motivation, no admission by police of evidence tampering , no claim of evidence tampering by the defence , no new forensic evidence, no nuffink.

I just don't see any other decision except a dismissal of appeal. I will be helplessly gobsmacked and baffled if it turns out to be any thing else..
 
Makara said:
Alioop, thank you for the comprehensive report. Is it just me or did the defence contradict themselves a few times there? There were a lot of words spoken but nothing much was said IMO.

My prediction is the appeal with be dismissed.
Click to expand...

Happy to do it. Love listening to lawyers talk law stuff!
I didn't think the defence contradicted themselves, but they were certainly making repetitive suggestions that went against the rules of circumstantial evidence and the extent of proof required. It was all a bit odd actually. I guess that's what you have to do when you haven't anything better.
 
alioop said:
Happy to do it. Love listening to lawyers talk law stuff!
I didn't think the defence contradicted themselves, but they were certainly making repetitive suggestions that went against the rules of circumstantial evidence and the extent of proof required. It was all a bit odd actually. I guess that's what you have to do when you haven't anything better.
Click to expand...


Alioop was the stern Olivia there?? enquiring minds want to know!!... thanks in advance!!
 
Trooper said:
Alioop was the stern Olivia there?? enquiring minds want to know!!... thanks in advance!!
Click to expand...

I didn't see her or Nigel even though I was having a good look around once I sat down but the person sitting next to me said they were up the front. I see from media pics that they were there.

There were lots of Allison's family but I don't think her brother or sister were there.
 
oh happyday!!...http://www.theguardian.com/australi...illed-his-wife-accidentally-appeal-court-told

here is a nice pic of Olivia and Nige looking all forlorn .. also... this Guardian article has taken the slant that Gerard's lawyers are proposing that Alison was accidentally killed.. and that's a nice change from the trial where Nigel, Olivia and Gerard spent their entire time in the witness box projecting the idea that Alison was bonkers and killed herself. Or, at closer glance, was so awful that Gerard was driven to kill her... they scouted this close () to laying that little idea out as factual.

I must say, that Olivia has not worn well this past year... not at all. .. .
 
^ from above. 3 justices, 3 months to consider
Catherine Holmes, Hugh Fraser and Robert Gotterson.
 
Trooper said:
ahh well , he is not actually saying it.. his barrister is floating the concept, seeing if it will sail on , a testing of the waters... highly unlikely to float.. at this stage of Gerard's life, it is all about words, concepts, possibilities, perspectives.. from the side where law lives, its about fact and evidence.. .. . Gerard will let anything be said that has the merest chance of raising interest.

In 15 years, when he is eligible to apply for parole.. ( this , by no means , can be taken as him actually getting it , it is a very long process usually) he does have to come to grips with admitting to the murder.. remorse is one of the buttresses of parole.. a convincing display, too, over many months.. it will be the one flawless performance Gerard has to produce. He has to persuade a panel of people who's business it is hearing the most terrible sob stories.. Gerard will have to be as suave and sincere as he possibly can be. At this point in his life, there will be no nonsense re accident , maybe accidental, maybe some other explanation. The Parole board doesn't try his case again, that's not their brief.

They are there to adjudicate if Gerard Baden-Clay is reformed and remorseful and re-educated enough to be re-admitted on a very short leash out in the public domain under strict supervision.. and will they? time will tell.

I do see Gerard being an almost perfect prisoner.. in the sense that he is unlikely to instigate a riot or burn his cell. He will, as he did outside prison, cause endless trouble of the nature that defies explanation or description.. that kind of crazy stuff that has people speechless , even poor giftless criminals. . There will be a long line of prisoners who come within Gerard's orbit who won't know what struck them, its inexplicable.. all they know is they got done like a dinner, but they don't even know how. . That's how Gerard operates.

There will be the usual nutso large women who will write to him in Christian goodness and forgiveness, obeying the biblical precept, and end up scammed and brokenhearted , and that's if they are lucky.. the unlucky ones will be forever hooked , like Toni.. forever waiting for Gerard. Forever in a fantasy.
Click to expand...

Oh Trooper, we have missed your writing skills. I wanna be a parole officer. Wonder who will be on-line for the parole.
 
Status
Not open for further replies.

DNASolves

Who is Escambia County John Doe (1989)?

Members online

... and 190 more.
Total: 1,346 (members: 191, guests: 1,155)

Online statistics

Members online
191
Guests online
1,155
Total visitors
1,346
Totals may include hidden visitors.

Forum statistics

Threads
599,304
Messages
18,094,263
Members
230,843
Latest member
jayrider129
Back
Top