SUPREME COURT OF QUEENSLAND
CITATION:

R v Baden-Clay [2015] QCA 265

PARTIES:

R
v
BADEN-CLAY, Gerard Robert
(appellant)

FILE NO/S:

CA No 188 of 2014
SC No 467 of 2013

DIVISION:

Court of Appeal

PROCEEDING:

Appeal against Conviction

ORIGINATING
COURT:

Supreme Court at Brisbane – Unreported, 15 July 2014

DELIVERED ON:

8 December 2015

DELIVERED AT:

Brisbane

HEARING DATE:

7 August 2015

JUDGES:

Holmes CJ and Fraser and Gotterson JJA
Judgment of the Court

ORDERS:

1. The appeal against conviction is allowed.
2. The verdict of guilty of murder is set aside and a verdict
of manslaughter is substituted.
3. The respondent is to file and serve submissions as to
sentence by 15 January 2016.
4. The appellant is to file and serve submissions as to
sentence by 22 January 2016.

CATCHWORDS:

CRIMINAL LAW – APPEAL AND NEW TRIAL –
PARTICULAR GROUNDS OF APPEAL – MISDIRECTION
AND NON-DIRECTION – OTHER MATTERS – where the
appellant was convicted of murdering his wife – where three
expert forensic witnesses gave evidence about a set of
abrasions and scratches on the appellant’s cheek – where they
considered that the abrasions were typical of injuries caused by
fingernails, but were equivocal about the cause of the scratches
– where two of the expert witnesses considered that the
scratches were inflicted after the abrasions – where the
appellant gave evidence that the abrasions and scratches were
all caused by him shaving with a blunt razor blade – where the
appellant argues that the trial judge erred in directing the jury
that if the appellant had attempted to disguise the abrasions by
placing shaving cuts near them, that conduct could support an
inference of guilt of murder or manslaughter – whether the trial
judge erred

 2
CRIMINAL LAW – APPEAL AND NEW TRIAL –
MISCARRIAGE
OF
JUSTICE
–
PARTICULAR
CIRCUMSTANCES NOT AMOUNTING TO MISCARRIAGE
– MISDIRECTION OR NON-DIRECTION – where the
appellant was convicted of murdering his wife – where her
blood was found in a family vehicle and her body at a nearby
creek – where the appellant argues that findings that the deceased’s
blood was left in the vehicle at the time she disappeared and
that he transported her body to the creek were indispensable
intermediate steps in arriving at the conclusion that he had
unlawfully killed her – where the trial judge declined to direct the
jury that they needed to be satisfied beyond reasonable doubt
that the appellant transported the deceased’s body to the creek
– where the trial judge was not asked to direct the jury that they
needed to be satisfied beyond reasonable doubt that the deceased’s
blood was left in the vehicle at the time of her disappearance –
whether the trial judge erred – whether there was a miscarriage
of justice
CRIMINAL LAW – APPEAL AND NEW TRIAL – VERDICT
UNREASONABLE OR INSUPPORTABLE HAVING
REGARD TO EVIDENCE – APPEAL ALLOWED – where
the appellant was convicted of murdering his wife – where the
appellant argues that the verdict was unreasonable because the
jury could not properly have been satisfied of the necessary
intent for murder – where the appellant argues that a reasonably
open hypothesis was that the deceased had scratched the
appellant in the course of a physical confrontation; the appellant
had killed her unintentionally; and his subsequent conduct was
attributable to panic – where the respondent argues that intent
to kill could be inferred from marks on the appellant’s face and
body, lies told by the appellant about the cause of the abrasions
on his face and his attempt to disguise them, the disposal of the
deceased’s body at the creek, and emotional and financial
pressures which might have caused the appellant to behave
with uncharacteristic violence – whether the post-offence
conduct was consistent with consciousness of a lesser offence
– whether there was a reasonable hypothesis consistent with
innocence of murder open on the evidence – whether the
verdict was unreasonable
Edwards v The Queen (1993) 178 CLR 193; [1993] HCA 63,
cited
M v The Queen (1994) 181 CLR 487; [1994] HCA 63, cited
R v Ciantar (2006) 16 VR 26; [2006] VSCA 263, applied
R v DAN [2007] QCA 66, cited
R v Lennox [2007] QCA 383, cited
R v Turner [2010] QCA 156, cited
Shepherd v The Queen (1991) 170 CLR 573; [1990] HCA 56,
cited

 3

[1]

COUNSEL:

M J Copley QC for the appellant
M R Byrne QC, with D C Boyle, for the respondent

SOLICITORS:

Peter Shields Lawyers for the appellant
Director of Public Prosecutions (Queensland) for the
respondent

THE COURT: The appellant was convicted by a jury of the murder of his wife,
Allison Baden-Clay, on or about 19 April 2012. He appeals the conviction on the
ground that the verdict was unreasonable and on three grounds concerning the trial
judge’s summing up. The first of the latter grounds was that his Honour should not
have left to the jury, as post-offence conduct probative of guilt, evidence of what the
Crown said was an attempt by the appellant to disguise scratch marks on his face.
The remaining grounds were based on the contention that the trial judge erred in not
directing the jury in respect of two matters that they needed to be satisfied beyond
reasonable doubt before they could rely on them as establishing guilt: the first, that
the deceased woman’s blood had been deposited in her motor vehicle at the time of
her disappearance, and the second, that the appellant had disposed of her body.
The Crown case

[2]

The Crown case in general terms was that the appellant had killed his wife –
smothering was suggested as a possible mechanism – at their house in Brookfield.
He had dumped her body underneath a road bridge at Kholo Creek, having driven it
there in her sports utility vehicle. It was not contended on the appeal that it was not
open to the jury to find that the appellant had killed his wife, so some aspects of the
evidence need not be canvassed. Because the reasonableness or otherwise of the
verdict is to be determined on the Crown case at its highest, the appellant’s evidence
will be considered only insofar as it supplements aspects of the Crown case.
Mrs Baden-Clay’s disappearance

[3]

[4]

The Baden-Clays had lived with their three young daughters, aged five, eight and 10,
at Brookfield. Mrs Baden-Clay was last spoken to by anyone other than her husband
at about 8.30 pm on 19 April. In the early morning of 20 April, the appellant
telephoned first his parents and, soon after, the police, expressing concern about his
wife. His account was that he had gone to bed at about 10 o’clock the previous night,
leaving her watching television. It appeared that she had gone for her early morning
walk and not returned. He was a heavy sleeper and he was unaware whether she had
actually slept in their double bed or had remained on the couch in front of the television.
The appellant’s father went to the Baden-Clay house; he saw that his son had some
cuts on his cheek, which the latter explained as shaving cuts. A police officer who
responded to the appellant’s call also noticed scratches on the right-hand side of his
face which he enquired about, and was given the answer that the appellant had cut
himself shaving in a hurry. The constable asked the appellant some questions about
his relationship with his wife. He volunteered that he had recently had an affair which
had caused some tension with his wife, but they were receiving counselling. The
officer examined Mrs Baden-Clay’s handbag; her mobile phone was missing. Attempts to
dial the number resulted in diversion to message bank. The phone was not subsequently
found. It was established that the appellant’s own mobile phone had been placed on
a charger in the couple’s bedroom at 1.48 am on 20 April and removed from it at 6.18 am.

 4
[5]

[6]

The appellant gave police who questioned him later in the day the following
information. His wife was given to walking at about 5 am a couple of times a week.
One of her walking outfits, which was grey in colour and consisted of a singlet top
with three-quarter length pants, was missing. Mrs Baden-Clay had in the past suffered
from depression for which she was prescribed Zoloft. She had been intending to leave
home at 7 am on 20 April to attend a conference. The previous evening they had
spent 15 minutes discussing the problems in their relationship, as a counsellor had
recommended, and then had discussed their plans for the following day.
The couple’s three daughters did not wake during the night. 1 There was no sign of
any struggle in the house, and later examination revealed no blood or any indication
of a cleaning process. The appellant’s four wheel drive and the vehicle which his
wife had driven, a Holden Captiva sports utility vehicle, were both at the premises;
the Captiva was parked in the carport.
The recovery and examination of Mrs Baden-Clay’s body

[7]

[8]

[9]

1

On 30 April 2012, Mrs Baden-Clay’s body was discovered lying on its side on an
embankment under the Kholo Creek road bridge at Mount Crosby. The bridge was
13 kilometres by road from the Baden-Clay house. The body was below the high tide
mark; it was not visible from the bridge itself, which was about 14 metres above. The
deceased woman was clothed in a blue or purple singlet top, dark three-quarter length
pants, socks and shoes. Around her neck region was a jumper, which was mostly
inside out. None of the clothing was damaged.
Leaves from different species of plants were found about Mrs Baden-Clay’s body.
A botanist gave evidence that they included four species – crepe myrtle, cat’s claw
creeper, fishbone fern and lilly pilly – which he was able to identify in the Baden-Clays’
garden, but not in the immediate vicinity of the Kholo Creek site where the body was
found. Some leaves of the cat’s claw creeper, the fern and the crepe myrtle were
entwined in her hair. The crepe myrtle leaves were fallen leaves, the fern leaves were
a mix of live and fallen leaves, and one of the cat’s claw creeper leaves appeared to
have been pulled from a live plant. Cat’s claw creeper was growing about the carport
of the Baden-Clay home, while leaf litter from the crepe myrtle and fern were found
in the carport and the patio area of the house near its back door.
Dr Milne, a pathologist who conducted the post-mortem examination on the body,
said that its decomposition was consistent with death at some time in the previous
11 days (the period since Mrs Baden-Clay was last seen alive). Post-mortem changes
to the body were consistent with its having been placed soon after death in the position
in which it was found. The state of putrefaction and mummification was such as to
obscure any injuries which had been sustained. There were no fractures to be seen
on CT scan or on physical examination and no abnormalities in the internal organs.
The carotid arteries were normal, and the hyoid bone, in particular, was not fractured
or damaged. There was a probable area of bruising on the internal lining of the chest
wall. If it were bruising, it would have been the result of a blunt force injury of mild
degree (since there were no rib fractures). It could have been caused by the impact
of something with the body or the body itself striking a surface. Dr Milne could not,
however, rule out the possibility that it was a post-mortem development.
There was some evidence of screams emanating from the direction of their house but an independent
witness gave evidence which indicated they were likely to have come from her teenage daughter, and
the Crown did not ultimately rely on them as associated with Mrs Baden-Clay’s disappearance.

 5
[10]

[11]

Dr Milne observed a small chip to one of Mrs Baden-Clay’s teeth, but an odontologist
was unable to say what caused it or its age. The latter did not see any sign of trauma
to the hard tissues of the jaw or the teeth.
Dr Milne did not think Mrs Baden-Clay had died from natural causes, because there
was no sign of any natural disease, but he could not establish the cause of death.
Mrs Baden-Clay had high levels of sertraline (Zoloft) and its metabolite in her liver
and a blood alcohol reading of .095. Dr Milne thought it unlikely that the cause of
death was alcohol or sertraline toxicity but could not exclude it. (Evidence from
experts in toxicology indicated that an overdose of sertraline would be unlikely to
cause death and that the blood alcohol reading might be the product of fermentation
through bacterial activity after death.) If Mrs Baden-Clay had fallen from the bridge
to the bank where she was found, Dr Milne would have expected fractures, although
if she fell into the water there might not be any detectable injuries. There was no
indication that she had drowned, but because of the state of decomposition of the
lungs, he could not exclude drowning; nor could he exclude death as a result of a fall
from the bridge.
Evidence of pressures affecting the appellant

[12]

A good deal of evidence was given about certain stressors affecting the appellant at
the time of his wife’s death: his financial difficulties and his involvement in an
extra-marital affair. The Crown did not contend that the killing was premeditated, but
suggested that the pressures on him might provide some explanation for uncharacteristic
violence.

[13]

The appellant operated a real estate agency. He owed some friends about $180,000
borrowed in connection with the business, although they were not pressing for
payment. In December 2011, he told another friend, Dr Flegg, that in order to keep
control of his business he needed to raise $400,000. In early March 2012, the appellant left
a message for Dr Flegg, who had a friend return the call. The appellant, who sounded
distressed, told her that he was having financial trouble and wanted to know if Dr Flegg
could lend him a sum of money, about $300,000. Later, in a telephone call made on
11 March 2012, Dr Flegg let the appellant know that he would not make the loan. On
20 April 2012, when the appellant was giving information to police about his wife’s
disappearance, he said that the couple were, financially, “on the bones of [their] arse”.

[14]

In August 2008, the appellant commenced a sexual relationship with a Ms McHugh,
an employee of the real estate agency which he operated. The affair came to his
wife’s knowledge in September 2011. Both Ms McHugh and the appellant gave
evidence about what occurred. Ms McHugh said that the appellant regularly expressed his
intention of leaving his wife but was concerned for her mental health and, in turn, the
consequences for their daughters’ welfare if he did so. When Mrs Baden-Clay
discovered the affair, the appellant told Ms McHugh it had to end. Ms McHugh did
not return to her employment at the real estate agency. She endeavoured to contact
the appellant, but she gave up the attempt when he did not respond. The appellant
said in evidence that once his wife became aware of the affair, he reached an
agreement with her that he would show his commitment to her by not going out at
night without her approval and by giving her the password for his phone so that she
could check his texts, emails and call history.

[15]

In December 2011, the appellant renewed the relationship by contacting Ms McHugh
and asking her to meet him. When they met, he told her that he loved her and wanted

 6
to end his marriage. Thereafter they had some contact by way of very brief phone
calls and email through an account under another name. They met again on another
occasion, the date of which he could not recall, before the beginning of April 2012.
At that meeting the appellant indicated that he would be out of his marriage by
1 July 2012, but considered that he and Ms McHugh should not meet until that occurred.
They remained in regular email and telephone contact. In an email of 3 April 2012,
the appellant said that he had given Ms McHugh a commitment to which he intended
to stick and would be separated (from his wife) by 1 July (an assertion which Ms McHugh
did not believe, given his history of promises not acted on). He maintained his love
for Ms McHugh in a later email of 11 April.
[16]

On 27 March 2012, Mrs Baden-Clay saw a counsellor, Ms Ritchie, and on 16 April
the appellant attended a counselling session with his wife. They discussed their
difficulties. Ultimately, the appellant agreed that every second day he would devote
15 minutes to listening to his wife’s expression of her feelings about the affair. (The
appellant did not disclose that it was continuing.) The counsellor thought that
Mrs Baden-Clay appeared hopeful when she left at the end of the session.

[17]

On 19 April, Ms McHugh telephoned the appellant and told him that she was going
to a property management conference the following day. He disclosed that his wife
and another employee of the real estate agency would be attending the same conference.
Ms McHugh was angry, saying that he should tell his wife about their relationship;
that it was not fair to either of them that they should be in the same room together.
She demanded to know the appellant’s intentions. He said that he was thinking of
selling the business after he left his wife. He did not respond to her request to see
him. On the following day, 20 April, Ms McHugh telephoned the appellant, who,
sounding distressed, told her that his wife had gone missing and they should not be
communicating. The next day he advised her that the police would want to speak to
her and she should tell the truth.
The bloodstain in Mrs Baden-Clay’s SUV

[18]

[19]

Mrs Baden-Clay’s Captiva sports utility vehicle had been purchased at the end of
February 2012. It had three rows of seats in it, the third of which was capable of
being folded down to extend the vehicle’s boot. When police first inspected the
vehicle, the back row of seats was folded down in that way, with baskets of toys
placed on it. When, however, the seats were put up, a bloodstain with a flow rivulet
attributable to gravity was discovered over the back wheel arch cowling on the driver’s
side. It was a transfer stain: the result of blood being transferred from a person or object
onto the surface. DNA extracted from a swab of the stain matched Mrs Baden-Clay’s
DNA profile. Neither the age of the bloodstain nor the volume of blood which had
produced it could be determined.
The older two of the Baden-Clay children both described the usual seating arrangements
in the car: the adults in the front seat, and the children in the middle row. Neither
recalled any injury to their mother which might explain the deposit of blood. The
appellant’s own evidence was that he was unaware of any injury to his wife which
could have resulted in the bloodstain.
The marks on the appellant’s face and body

[20]

Photographs of abrasions to the appellant’s face, one set taken at 1 pm on 20 April
and another at 1.22 pm on 21 April, were tendered in evidence. They show a set of

 7
abrasions on the appellant’s right cheek, which may be described as orange in colour.
The abrasion on the left side of the cheek (looking at the photograph) is about
27 millimetres long and is slightly curved at the bottom. It appears to be about
two millimetres wide. On the right side are two abrasions running vertically, one
below the other, separated by only a millimetre or so. The higher of those is perhaps
3.5 millimetres at its widest point. Below them, and to the left of the first abrasion,
is a set of small scratches with small red spots of dried blood, perhaps five or six millimetres
in length.
[21]

[22]

On 21 April 2012, acting on legal advice, the appellant went to see two medical
practitioners, one in the morning and one in the afternoon, in relation to the abrasions
on his face. He told both that the marks were caused by shaving in a hurry using
a blunt razor. The first, Dr Beaven, observed three superficial abrasions which looked to
be fairly recent. She asked him why he had not noticed that he was bleeding and in
how many motions the wounds had been sustained. The appellant initially said one
motion, and then said it must have been a couple; but he had not noticed himself
bleeding, because he was rushing. The second general practitioner, Dr Kumar, noticed two
marks on the appellant’s right cheek, one four centimetres long and .5 centimetres
wide and the other two centimetres long and .5 centimetres wide. She thought that
the marks on the face seemed wide for a razor cut, but it was possible they were
caused in shaving in a rush.
As well as the marks on the appellant’s face, Dr Kumar noted a superficial scratch on
the left side of his neck and some marks on his chest on the right side near the right
shoulder. The appellant attributed the marks to having scratched itchy areas caused
by a caterpillar which had landed on his neck. He demonstrated how he had scratched, and
Dr Kumar was satisfied that he had caused the marks in that way. (A number of
witnesses who had been at a school cross-country race with the appellant on the
morning of 19 April confirmed that he had complained of being bitten by something
and of consequent itchiness.)

[23]

A forensic medical officer, Dr Griffiths, examined the appellant at 7.15 pm on 22 April.
He saw two abrasions on the appellant’s right cheek, separated by about a centimetre.
The one on the left was about 25 millimetres in length and about 2.5 millimetres wide.
That on the right had a slight curve in it and was about four millimetres wide.2 The
wounds were irregular and appeared broad, in contrast to an incised wound or a simple
cut; he regarded them as abrasions rather than cuts and thought they resembled scratch
marks caused by fingernails. He did not recall seeing the small red scratches.
Dr Griffiths had also noted some redness on the neck and some abrasions on the upper
chest, with a bruise around the area of the right armpit. Dr Griffiths thought that the
marks on the neck were caused by human fingers. The mark around the armpit might
have been a strap mark left by wearing a backpack. The other area of abrasion on the
chest could have been caused by fabric being forced against the skin.

[24]

Three medical experts gave evidence of conclusions drawn after examining the
photographs of the appellant’s face taken on 20 and 21 April. The first was Dr Stark,
a specialist forensic physician specialising in interpretation and causation of injuries.
Looking at the 20 April photograph, she said that the orange abrasions were made
within a day or so before it was taken, but it was not possible to be precise. They had
resulted from contact with a rough surface and were typical of fingernail scratches,

2

This is the wound described in [20] above as constituted by two vertical abrasions separated by a millimetre.

 8
although she could not say “100 per cent” that they were. They were not typical of
even a blunt razorblade injury, of which it was to be expected there would be a finer
abrasion; but she could not completely exclude the possibility. Ordinarily someone
who nicked themselves with a razor would not continue to cause further injury or
abrasions of the width involved. The difference in their appearance from the redder
scratches suggested “maybe two sets of injuries caused at different times”. The
yellowing of the abrasions was some evidence of their healing, suggesting that the
red scratches were caused slightly later. The red scratches were more consistent with
the use of a razor, although again she could not say “100 per cent” that they were so
caused; it was “possible”, she said in re-examination, that a fingernail produced them.
[25]

[26]

[27]

[28]

A forensic medical officer, Dr Hoskins, distinguished between the orange abrasions
and the small red scratches shown in the photographs. The abrasions were characteristic
of fingernail scratches, in that they were ragged, about the size to be expected and
approximately parallel with each other. He thought it extremely implausible that they
could have been caused by the appellant’s razor. The smaller marks were more of
the character of scratches than abrasions, and could have been produced by a blade.
He could not absolutely exclude that they were caused as part of a continuous process
with whatever had caused the first injury, but the fact that there was fresher dried
blood on one of the scratches, while the scabbing in the abrasions was drier and
browner, suggested that the abrasions were caused earlier. They were probably sustained
between six and 24 hours prior to the taking of the 20 April photograph, while the
presence of darker blood in the scratches suggested they were less than six hours old.
In cross-examination, Dr Hoskins conceded that he could not say whether the
scratches were separately caused or were part of the larger abrasions; he could not
say with certainty that the abrasions were earlier, although they had that appearance;
and he accepted that the ageing of areas of injury was not a precise science.
Dr Hoskins also examined photographs of the marks on the appellant’s torso. He said
that the two marks on the neck could be explained by a scratch through clothing. The
marks to the chest were very superficial scratching and it would not be surprising if
the appellant had caused them himself. The injury around the right armpit seemed to
be bruising which was consistent with the straps of a backpack being pulled up, clothing
being pulled upwards and backwards, or a fingernail scratch through clothing.
A forensic physician, Professor Wells, said that the abrasions on the appellant’s face
were the product of a form of blunt trauma where an object which had a roughened
surface had removed pieces of skin; what came to mind on seeing them were fingernails or
an animal’s claw. He could not reconcile the use of the appellant’s razor with the
production of those marks. The smaller wounds could be produced by a blade or by
the same implement which had caused the abrasions. He could not comment on
whether the abrasions and smaller scratches had been caused at the same time.
Shaving injuries were likely to be around skin protuberances and to produce a finer
or more incised wound than the abrasions. The parallel nature of the abrasions would
mean that the blade had been applied at the same angle repeatedly.
Professor Wells had also looked at the photographs of the marks on the appellant’s
trunk. There was bruising on the left shoulder which could have been the product of
the dragging of fingernails through a shirt. Similarly, there was bruising on the chest
which could have been caused by a fingernail or a blunt force impact, through fabric.
The right armpit marking was consistent with clothing having been pulled forcibly
against the skin.

 9
Whether there was evidence to support the direction on concealment of facial
injuries
[29]

The trial judge gave an Edwards3 direction in respect of the use the jury could make
of the appellant’s assertions that he had caused all his facial injuries while shaving, if
they found them to be false; no issue was taken about that direction. In addition,
however, his Honour, over objection, directed the jury that if the appellant had
attempted to disguise the abrasions by placing shaving cuts near them in an attempt
to provide an innocent explanation for the injuries, that conduct could support an
inference of guilt of murder or manslaughter. His Honour gave the usual cautions as
to the use of the evidence and in particular emphasised that it was necessary to give
careful consideration to whether the conduct could support an inference of murderous
intent, as opposed to unlawful killing without that intent.

[30]

The appellant contended that the directions should not have been given, because there
was no evidence or no sufficient evidence available to support a finding that the
appellant had sought to disguise the abrasions. It was necessary for that finding to be
made that the Crown establish, firstly, that the small red scratches were made at
a different time from the three orange vertical abrasions and, secondly, that they were
made by a means different from that which had inflicted the abrasions. Dr Stark had
acknowledged the difficulty of ageing injuries and expressed her view of the respective
ages of the orange and red marks only at the level of possibility. She had in re-examination
accepted that the red marks might have been caused by a fingernail, leaving two
possibilities open. Dr Hoskins conceded that he could not say with certainty that the
redder injuries were caused at a different time, and Professor Wells was not able to
make any comment. Professor Wells thought that the red scratches could have been
produced by a blade but also might have been a product of the same implement as the
abrasions.
Conclusions

[31]

Having regard to the expert evidence, the jury could start from the premise that the
orange abrasions were, indeed, fingernail scratches. The preferred view of all three
experts who had examined the photographs was to that effect; and Dr Griffiths, who
actually saw the abrasions, similarly considered that they appeared to be fingernail
scratch marks. The experts were certainly more equivocal about the cause of the red
scratches. That was, however, immaterial, given that at no stage was it asserted by
the defence at trial that the red scratches were produced by anything other than
a razor. The appellant volunteered no other cause for them; his evidence was that he
had cut himself repeatedly while shaving, resulting in “two fairly long slices” from
his face. It was put to him in cross-examination that the marks “at the bottom” (the
red scratches) were shaving cuts, but that the other injuries were not; he maintained
that all were shaving cuts. Plainly the defence case was that the small red scratches
were the product of careless razor use, not fingernail scratches. The expert evidence,
on the other hand, was certainly sufficient basis to conclude that the abrasions were
caused by fingernails. It follows that it was entirely open to the jury to conclude that
a different mechanism was involved in the two different forms of injury.

[32]

If the jury were satisfied that the wounds were inflicted by different means, their
precise timing was not critical; the only question was whether the red scratches were

3

Edwards v The Queen (1993) 178 CLR 193.

 10
sustained later. Dr Stark and Dr Hoskins both considered that the appearance of the
red scratches and orange abrasions suggested that the former occurred after the latter.
Neither expressed an opinion in absolute terms, but that did not mean that the jury
were not entitled to consider their evidence and the tendered photographs and make
a finding on the balance of probabilities. They could be assisted in doing so by what
the experts said about the significance of the colour of the blood in the marks in
assessing the stage of healing and consequently the age of the wounds. It was open
to them, after considering all the features of the injuries, to reach the conclusion that
they had been inflicted separately, by different means and with the red scratches
occasioned later. That conclusion being open, the direction was properly given.
The standard of proof in relation to the blood stain and the disposing of the body
[33]

[34]

The two remaining grounds concerning the judge’s summing up turned on whether
his Honour should have directed the jury of a need for satisfaction beyond reasonable
doubt in respect of, firstly, the appellant’s having left Mrs Baden-Clay’s body at
Kholo Creek and secondly, the deposit of her blood in the Captiva at the time of her
disappearance. At trial, defence counsel had contended that the jury would have to
be satisfied beyond reasonable doubt that the appellant had disposed of his wife’s
body at Kholo Creek before that circumstance could be relied on to prove that he had
caused her death; it was an indispensable link, he said, to finding that the appellant
had killed her. The trial judge rejected that submission and directed the jury that
disposal of the body at Kholo Creek would be relevant as tending to prove that the
appellant had killed his wife, although not that he had murdered her. No similar
submission was made at trial in relation to the bloodstain in the Captiva, but the failure
to direct in respect of the matter was said to have occasioned a miscarriage of justice.
The appellant’s contention in respect of these grounds was that if the jury were not
satisfied that he put his wife’s body in the creek, they could not be satisfied beyond
reasonable doubt that he caused her death; so that that matter was a necessary link in
reasoning to guilt and had to be proved beyond reasonable doubt. 4 The argument in
respect of the blood stain was that finding that it had been left in the Captiva on 19 or
20 April, and not before that, was an indispensable intermediate fact in reasoning to
the conclusion that the appellant had placed the body in the creek, so that the jury
needed to be satisfied beyond reasonable doubt of that fact before they could find that
he had caused his wife’s death.
Conclusions

[35]

4

Neither prospective finding – that the blood was left in the vehicle on the night in
question or that the appellant placed the body of his wife at Kholo Creek – was an
indispensable fact to reaching a conclusion that he had killed her. Both were capable
of assisting to prove guilt, but neither was essential. The jury could properly have
found that Mrs Baden-Clay had been killed by her husband on the basis of finding:
that she had been with him on the night of 19 April; that she had died about the time
of her overnight disappearance; that the leaves in her hair suggested that her death
had occurred at their home; that there had been difficulties in the marriage; that there
had been a physical altercation between them, as evidenced by the fingernail scratch
marks; and that the appellant had lied about those marks in a way suggestive of
a guilty mind. It was not then necessary for them to reach any particular view about
how the body arrived at the creek, although, of course, to find that it had been taken
Shepherd v The Queen (1991) 170 CLR 573 at 585.

 11
there by the appellant in the Captiva would certainly go to reinforce the conclusion
of guilt.
[36]

[37]

A component of the appellant’s submission was that the jury should have been told
that before the blood stain could feature in their considerations they had to be satisfied
that it had been left in the car on 19 or 20 April. It was not necessary for the trial
judge to articulate that proposition: nothing could have been more obvious. It was
certainly open to the jury to accept that the bloodstain in the Captiva had been left
there on 19 or 20 April. The Baden-Clays had owned the vehicle for less than two
months. There was no other explanation of how the blood came to be there. On the
evidence, Mrs Baden-Clay did not sit in the back row of seats, and neither the two
older daughters nor the appellant himself could recall any injury to her which might
explain the deposit of blood.
There was no error in the trial judge’s direction so far as the standard of proof
concerning the conveyance of Ms Baden-Clay’s body to Kholo Creek was concerned,
and no omission in the directions relating to the bloodstain such as to give rise to any
miscarriage of justice.
Unreasonable verdict

[38]

[39]

[40]

The appellant accepted that it was open to the jury to be satisfied beyond reasonable
doubt that he had unlawfully killed his wife, but contended that they could not
properly be satisfied of the necessary intent for murder. There were no injuries on
the body of a kind to indicate an intent to kill or do grievous bodily harm. Nor was
there any sign of blood or evidence of a clean-up in the house to suggest violence.
There was no evidence at all that there had ever been any violence in the relationship
between the couple. Nothing had changed in the appellant’s marriage to make him
take the step of intentionally killing his wife. His business was under some financial
pressure, but that pressure was no different in April from earlier in the year, and his
creditors were not pressing for payment. There was no evidence of the circumstances
in which the fingernail scratches were inflicted on the appellant; they were conceivably
caused by his wife in an angry attack on him. If the appellant had lied about their
cause, he might have done so in panic, knowing that he had caused the death, without
necessarily having done so intentionally.
A reasonably open hypothesis was that the appellant’s wife had attacked him,
scratching his face. In endeavouring to make her stop he had killed her without
intending to do so, with his conduct thereafter being attributable to panic. An
argument by the respondent that the disposal of the body was capable of giving rise
to an inference that it was done to conceal evidence of an intentional killing amounted
to nothing more than speculation; there was no evidence that the deceased woman
had sustained any injuries which could have indicated how she had died.
The respondent contended that the jury could infer an intent to kill from a number of
matters. The first was the evidence of pressure on the appellant, financial and
emotional, which could have led him to behave with uncharacteristic violence in the
context of a physical altercation. There was a likelihood that the following day
Ms McHugh would confront Mrs Baden-Clay. The marks on the appellant’s face and
body, it was submitted, supported the thesis of a violent confrontation. There was
consciousness of guilt evidence which the jury could have accepted as demonstrating
the appellant’s intent to kill or do grievous bodily harm: the appellant’s lies about the

 12
cause of the abrasions on his face and his attempt to disguise them. Defence counsel
at the trial had made an implicit concession that the evidence was available for that
purpose by submitting that it should be left for the jury’s consideration as relevant to
both murder and manslaughter. Indeed, the respondent submitted, the appellant’s
disposal of his wife’s body could similarly be relied on as going to prove intent, and
the trial judge had been in error in failing to direct the jury to that effect.
Conclusions
[41]

It is unlikely that the jury would have had much hesitation in accepting that there had
been an altercation at the house, most likely outside in the patio area given the leaf
material found in Mrs Baden-Clay’s hair. They could properly conclude that she had
suffered a lethal injury there of a type which occasioned very little bleeding, having
regard to the forensic evidence. And they could readily conclude that the appellant
had taken his wife’s body to Kholo Creek and left it there. The critical question was
whether it was also open to conclude that when the appellant caused his wife’s death
he intended to do so, or at least to cause her grievous bodily harm.

[42]

It is important to note that the Crown did not at trial contend that the killing of
Mrs Baden-Clay was in any way premeditated or that the appellant might have been
motivated by some benefit he stood to gain from his wife’s death.5 The respondent’s
written submissions here spoke of the identified financial and emotional pressures as
going to
“motive, as that term is understood to signify an explanation for
uncharacteristic conduct”;
contending that, having regard to them, the jury could find that the appellant
“acted uncharacteristically, but nevertheless deliberately and with intent”.
But that does not seem an apposite use of the word “motive”. To explain why somebody
might be in a volatile emotional state is not to provide a motive for his conduct; to
say that he might act out of character in using violence does nothing to establish a reason
or purpose for his doing so. It was not, of course, incumbent on the Crown to establish
a motive, but to do so might have assisted in proving an intent to kill or do grievous
bodily harm. The evidence of financial stress and the extra-marital affair suggested
a context of strain between the couple which might well have culminated in a confrontation;
but it did not provide a motive or point to murder rather than manslaughter.

[43]

There is nothing about the facial scratches to indicate the circumstances in which they
were inflicted; whether they occurred in the course of a heated and perhaps physical
argument or in resisting a murderous attack. Although it was suggested that what had
been characterised as a strap mark near the appellant’s left armpit might be consistent
with Mrs Baden-Clay’s having pulled at her husband’s clothing in a struggle, the Crown at
trial did not seek to rely on any of the other marks on his body as having been
occasioned in any physical conflict with his wife. The prosecutor’s address specifically
referred to the facial scratching as the only injury inflicted by her. That is not surprising,
because the appellant’s explanation for the marks on his neck and chest, that he had
been bitten by something, and scratched, was supported by the evidence of other
witnesses, and was acknowledged as entirely possible by the medical experts. Having

5

Although there was evidence of an insurance policy on Mrs Baden-Clay’s life, the Crown at trial
disavowed any suggestion that the appellant had killed her in order to benefit from it.

 13
effectively disavowed reliance on the evidence of other marks on the torso, the Crown
cannot properly point to it now; but in any event it would not seem to advance the
notion of a physical altercation much further than the facial scratches.
[44]

Putting aside the idea that the pressures on the appellant provided a motive in any
conventional sense of the word, the respondent’s argument on intent rested on the
consciousness of guilt evidence. Notwithstanding the respondent’s submission to that
effect, it does not appear that defence counsel at trial did concede that the facial
scratches were properly left as relevant to murder. When the matter was first broached, his
primary position was that the jury ought to be told that if they concluded that a lie
was told, it could not establish more than a consciousness of guilt of killing. In our
view, however, the directions given in that regard were correct. Indeed, we would
accept the respondent’s submission that the evidence of the disposal of the body could, as
a circumstance in a larger case, properly be left to the jury as relevant to both manslaughter
and murder. The fact that, like the scratches on the face, it was equivocal as between
the two crimes did not mean that it was not properly admitted and left for the jury’s
consideration as to both:
“As with other forms of circumstantial evidence of guilt, a jury may
accept evidence of lies and other post-offence conduct and act upon it
without being satisfied beyond reasonable doubt that the evidence
establishes guilt (that is to say, without being satisfied that there is no
other explanation of the lies and post-offence conduct which is
reasonably open on the facts).”6
However, to say that equivocal circumstantial evidence is admissible for
consideration in the context of the case as a whole is not to say that it can support
a finding of intent for which there is no other evidentiary support.

[45]

The respondent pointed out that this Court should have regard to the fact that in determining
the question of intent, the jury had the advantage of seeing the appellant testify.7 That
is entirely correct. The jury could properly have rejected every word the appellant
said as a lie. But that would, with the exception of his explanation of the scratches
on his face, have done nothing to advance the Crown case. Conclusions that he had
lied in that regard and that he had taken steps to dispose of his wife’s body were
properly to be taken into account, as evidence of a consciousness of guilt, in the context of
all the evidence in the case.8 But the lies, or the lies taken in combination with the
disposal of the body, would not enable the jury to draw an inference of intent to kill
or do grievous bodily harm if there were, after consideration of all the evidence,
equally open a possibility that all of that conduct was engaged in through a consciousness
of a lesser offence; in this case, manslaughter.

[46]

In some cases, post-offence conduct may take its complexion from other circumstances:
evidence of motive, forensic evidence suggesting a bloody or protracted killing,
statements of intent by the accused or, in the case of concealment of a body, that there
are injuries to the victim which would point to a deliberate killing. But in the present
case there was no evidence of motive in the sense of a reason to kill, and the appellant
had never intimated any intention of harming his wife. There were no signs of blood

6

R v Ciantar (2006) 16 VR 26 at 40.
M v The Queen (1994) 181 CLR 487 at 494.
Ciantar at 40; R v DAN [2007] QCA 66 at [133] – [134]; R v Turner [2010] QCA 156 at [28]; R v Lennox
[2007] QCA 383 at [52].

7
8

 14
or disarrangement at the house and no convincing evidence of noise; suggesting that
there was no repeated infliction of injury and that whatever occurred was quick. Postmortem examination did not identify any injury to the body which the appellant might
have been motivated to conceal. That may well have been due to decomposition; but
it can only be a matter of (impermissible) conjecture as to whether that was the case.
[47]

This case falls in the category described by the Victorian Court of Appeal in Ciantar:
“… there may be some circumstances in which post-offence conduct
is equally consistent with two or more possible offences or is otherwise
intractably neutral. Where that is so, it may not be open, even on the
totality of the evidence, to draw an inference that the accused had
a consciousness of guilt of some particular conduct at the time that he
told lies or performed some act which the prosecution relies upon as
constituting post-offence conduct”9.

[48]

Thus, while findings that the appellant lied about the cause of his facial injuries and
had endeavoured to conceal his wife’s body should not be separated out from the
other evidence in considering their effect, the difficulty is that, viewed in that way,
the post-offence conduct evidence nonetheless remained neutral on the issue of intent.
To put it another way, there remained in this case a reasonable hypothesis consistent
with innocence of murder: that there was a physical confrontation between the
appellant and his wife in which he delivered a blow which killed her (for example, by
the effects of a fall hitting her head against a hard surface) without intending to cause
serious harm; and, in a state of panic and knowing that he had unlawfully killed her,
he took her body to Kholo Creek in the hope that it would be washed away, while
lying about the causes of the marks on his face which suggested conflict. Smothering,
the Crown’s thesis, was a reasonable possibility, but while there was also another
reasonable possibility available on the evidence, the jury could not properly have been
satisfied beyond reasonable doubt that the element of intent to kill or do grievous
bodily harm had been proved.
Orders

[49]

In consequence, the appeal against conviction must be allowed, the verdict of guilty
of murder set aside and a verdict of manslaughter substituted. Counsel for the respondent
should file and serve submissions as to sentence by 15 January 2016, with the
submissions for the appellant to be filed and served by 22 January 2016.

9

At 39.