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Flinders, was gets me about this, is that the autopsy did not find anything that would be consistent with an accidental fall hitting her head. He smothered her, and as she fought for her life, she managed to scratch his face. Well done Allison.
Something for us all to remember. When we are fighting for our life, try to leave a 'message'. Allison was able to leave us all a message on GBC's face.[/QUOTE]
Gerard says he ‘did not kill’ Allison, and Olivia says ‘my brother is an innocent man’.
JMO
Interpreting the evidence is available to us all; but applying the legal interpretations is the sole task of the Judiciary, and we have to accept that in the final judgment by the High Court.
Our interpretations of the evidence produced with regard to the events surrounding Allison’s death differ ….. just as the interpretations of the Judges differ (Although in this case all three Appeal Judges were in agreement).
Reasons for concluding likelihood of an altercation occurring in back yard:
. Plant matter in Allison’s hair;
. Scraps dog barking at around 10 to 10.30 pm;
. Screams made by neighbour’s teenage girl – evidence by witness brought in by Defence;
. Mobile phone of Allison being located by ‘Find my friend’ App;
Eliminating reasons:
. Contact with plant matter while dragging body around to carport/Captiva (thereby avoiding steps at front of house and risk of being seen from road);
. Children in bed and asleep by say 8 pm – discussion about marriage unlikely to have occurred late in the night around 10 pm;
. Screams heard by neighbours – Defence explained the source of screams after 9.30 pm. Inferring that those screams were reported by neighbour witnesses;
. App did not locate the mobile phone when tried earlier in the morning / but did work in locating it when tried by Police later at around 11.43 am (indicates that the phone was placed there by someone while Police were investigating inside the house.
However:
http://www.abc.net.au/news/2015-12-08/gerard-baden-clay-wins-appeal/7009464
In the judgement handed down on Tuesday, the Court of Appeal said while Baden-Clay lied about the cause of scratches on his face and tried to hide his wife's body, there was a reasonable hypothesis he was innocent of murder.
It could not be ruled out that there was a physical confrontation in which Allison fell and hit her head, the ruling by Chief Justice Catherine Holmes, Justice Hugh Fraser and Justice Robert Gotterson found.
"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," Justice Fraser wrote in Tuesday's findings.
……….
http://archive.sclqld.org.au/qjudgment/2001/QCA01-272.pdf
Grounds for Leave to Appeal to the High Court by the Prosecution:
Gerard Baden-Clay: Director of Public Prosecution says Court of Appeal decision contained errors
According to the application, obtained by The Courier-Mail, the grounds include that the Court of Appeal made errors in:
- The application of principles concerning circumstantial evidence and in substituting its own views of the evidence, including a factual assertion not established by the evidence, for the jury verdict which was reasonably open on the whole of the evidence.
- Concluding that the post-offence conduct evidence remained neutral on the issue of intent and that 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.
Director of Public Prosecutions Michael Byrne QC has asked that the High Court set aside the decision to downgrade Baden-Clay’s charge and dismiss the appeal.
In the alternative, he has asked that the appeal be reheard.
