Amy Remeikis June 22, 2012
Gerard Baden-Clay's sister Olivia Walton outside Brisbane Supreme Court during the bail application. Photo: Amy Remeikis
UPDATE: Accused murderer Gerard Baden-Clay allegedly Googled the phrase "taking the fifth’', a US constitutional amendment to protect against self-incrimination, in the days before his wife Allison was killed.
Mr Baden-Clay has been refused bail in the Brisbane Supreme Court this afternoon after the judge decided the 41-year-old Brisbane real estate agent was a significant flight risk.
Mr Baden-Clay, who did not appear in court today, will remain in custody at Arthur Gorrie Correctional Centre. He has been charged with the murder of his wife, Allison, on June 13.
Mrs Baden-Clay was reported missing by her husband on April 20. Her body was found 10 days later by a canoeist under the Kholo Creek Bridge near Ipswich about 14km away from the Baden-Clays’ Brookfield home.
Justice David Boddice denied the application lodged by Mr Baden-Clay's defence barrister, Peter Davis, who contended it was "one of the strongest applications one will ever see for bail when there is a murder charge".
An earlier non-publication order on the bail application was also dropped.
The Crown alleges Mr Baden-Clay had Googled the phrase "taking the fifth'' in the days before Mrs Baden-Clay disappeared, in reference to the fifth amendment to the US Constitution that prevents a person from being forced to be a witness against themselves in a criminal case.
The prosecution's evidence also alleges Mr Baden-Clay had Googled 'self incrimination' in the days before his wife went missing, and that he again looked up the phrase on his phone shortly before phoning police to tell them she was missing.
Mr Davis argued the prosecution’s case was “weak’’, saying there was no evidence to prove Mr Baden-Clay left the family home on the night of the alleged murder, nothing to place his client at the creek where Mrs Baden-Clay’s body was found and no weapon produced by investigators.
Prosecutor Danny Boyle conceded the Crown’s case was “circumstantial” but argued it was “compelling” when the circumstances were put together.
The Crown alleged that Mr Baden-Clay’s “dire financial circumstances” served as a motive and that he stood to “benefit greatly from the death of his wife”.
Mr Boyle said the Crown would present evidence that Mr Baden-Clay had allegedly made an inquiry about his wife’s “significant” life insurance policy in the days leading up to Mrs Baden-Clay’s death.
Mr Boyle said Mr Baden-Clay was alleged to have given notification to the insurance company of his wife’s death on April 30, when a body had been reportedly found beside a Brisbane creek.
In his submission, Mr Davis said his client was following the insurance company’s procedure.
However the Crown alleges Mr Baden-Clay made the notification before there had been official confirmation the body found was Mrs Baden-Clay’s.
Mr Boyle said the Crown would also allege that Mr Baden-Clay then attempted to “rush through” the death certificate and start the life insurance claim process.
Today's bail application served as a preview to any future trial, with Mr Baden-Clay's alleged affair with work colleague Toni McHugh mentioned in the Crown evidence.
The Crown will submit entries from Allison's journal in which she allegedly mentions knowing of the affair between Mr Baden-Clay and Ms McHugh.
Mr Boyle said when asked about his relationship with Ms McHugh, Mr Baden-Clay allegedly told police it was over.
However the Crown will allege that the relationship was on-going and Mr Baden-Clay had a “deadline” of July 1, when the accused intended to leave his wife to be with Ms McHugh.
The Crown will allege Ms McHugh had asked Mr Baden-Clay to speak to his wife about their relationship as she was concerned she would be attending the same real estate conference as Mrs Baden-Clay.
The conference was scheduled for the same day Mrs Baden-Clay was reported missing. Mr Boyle said it would be the Crown’s case that the Baden-Clays argued over the relationship on the night Mrs Baden-Clay was killed.
Legal argument between the defence and prosecution was intense, with Justice Boddice often asking both sides to clarify their points of contention.
Alleged scratches found on Mr Baden-Clay’s face and torso were also mentioned in court.
Mr Davis said the marks on his client’s torso were related to a “caterpillar incident” and he had witness statements attesting to that.
Mr Boyle did not disagree. But he said the Crown evidence regarding the scratches allegedly left on Mr Baden-Clay’s face were “consistent with a scratch” and “inconsistent with shaving”, which is how Mr Baden-Clay had explained them to police.
The post-mortem report given to Justice Boddice gave no external cause of death.
Mr Davis said the only external injury noted in the report was a chip to the bottom left eye tooth.
Mr Davis used the lack of any other apparent injuries to question the allegation that investigators had found Mrs Baden-Clay’s blood in the boot of her husband’s car.
"There is no suggestion of any cuts, any wounds, from which she could bleed," he said, in reference to a police assertion that there was a luminol (a chemical which can react to show the presence of blood, among other fluids) reaction found in the car.
Mr Davis also said there was no supporting evidence submitted to the court that the luminol reaction was caused by the presence of blood.
Mr Boyle said the Crown was not required to submit its evidence so early, but it was available to the court if needed.
The prosecution opposed bail, arguing Mr Baden-Clay was a flight risk and could potentially interfere with witnesses.
In applying for bail, Mr Davis cited his client’s strong ties to the business community as well as to the community where he lived as evidence Mr Baden-Clay would not flee the state before his trial was to begin.
He said despite “intense” media coverage of the case in the lead up to being charged by police, Mr Baden-Clay had not left the country.
Mr Davis had told the court Mr Baden-Clay had no valid passports and could provide a $500,000 surety
However Justice Boddice dismissed the application, stating that strong ties to the community were not unusual.
He said the prospect of a mandatory life sentence – the penalty in Queensland if found guilty of murder - was “a powerful incentive not to appear” for trial.
And while Mr Baden-Clay had not “sought to flee despite intense media attention” in the lead-up to his arrest, he had now been charged with murder and had been in custody since.
Justice Boddice said Mr Baden-Clay’s ties to the community, his obligation to his daughters and his obligations to his business must be balanced against “the real risk of mandatory life imprisonment” and what that might mean to a person.
“The applicant is facing the real risk of mandatory life imprisonment, flight is a real possibility, a real possibility,” he said.
“Although he may have property and other work relationship ties with Queensland, that is not an unusual factor and would not necessarily prevent flight of someone determined to abscond because of fear of a lengthy prison sentence.”
Justice Boddice disagreed with the defence submission that the Crown case was “weak”. While circumstantial, it could “be taken by a jury as strong evidence”.
After a 25-minute address to the court, where he outlined both the defence and prosecution arguments for and against bail, Justice Boddice ended the speculation with a simple sentence.
“The applicant has not satisfied me that his continued detention in custody is not justified,” he said in denying the application.
However Justice Boddice did continue his address to the court, issuing a warning to the media. He said “constraint must be shown” in opinions published by journalists.
“One will hope that the media will ensure justice can take place in a proper, respectful way, for what the law allows and applies,” Justice Boddice said.
Mr Davis added: “And the media should have regard to the fact that those comments are made with the force of your Honour’s office”.
Justice Boddice replied: “And that is why I have said what I have”.
Mr Baden-Clay’s trial is not expected to reach the courts for at least two years.
His bail application was due to be considered yesterday but a bomb threat forced the temporary closure of the Supreme Court.