GERARD Baden-Clay's lawyers cannot propose "imaginary possibilities to explain an embarrassing death" post-trial and then argue the Crown did not address them, a High Court submission argues.
Barrister Walter Sofronoff, acting for Queensland's Director of Public Prosecutions, has today responded to submissions from Baden-Clay's defence team in a High Court appeal on charges relating to Allison Baden-Clay's death in 2012.
Baden-Clay's murder conviction, after a trial in 2014, was controversially downgraded to manslaughter in the Queensland Court of Appeal last year.
His legal team successfully argued there was a reasonable hypothesis for a possible physical confrontation where a subsequent fall could have caused Allison's death.
"There was a physical confrontation between (Baden-Clay) 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," the appeal court found last year, after reviewing the trial evidence.
Now the Director of Public Prosecutions is seeking to have the original murder verdict reinstated in Australia's highest court, citing a series of errors in downgrading the murder conviction.
Mr Sofronoff, in his reply to defence submissions, said Baden-Clay only ever suggested at trial that he had nothing to do with his wife's killing, never that the evidence could point to a possible fight leading to an accidental death.
He said the jury was never asked to consider such theories at trial but had excluded all suggestions of innocence.
"Evidence was led to refute them and the jury must have been satisfied to reject them," he said.
"It is not permissible after the conclusion of the trial to posit imaginary possibilities to explain an embarrassing death and then to assert that these have not been addressed or excluded by the prosecution.
"Even if this unarticulated hypothesis was in issue at the trial, it is not germane on this appeal to submit, as (Baden-Clay) does, that 'an hypothesis consistent with innocence of murder was open on the prosecution evidence'.
"The jury's verdict demonstrated that the jury was satisfied beyond a reasonable doubt that all hypotheses consistent with innocence had been excluded."
Brisbane-based Peter Shields Lawyers argued in their submissions that a murder verdict required the prosecution to prove Baden-Clay intentionally killed his wife.
"There was no direct evidence (Baden-Clay) either caused the death (of Allison) or did so with the intention necessary for murder," he said.
"Proof he caused the death depended upon the drawing of inferences. Proof that he killed with the necessary intent depended upon the drawing of inferences."
Allison's decomposed body was found on a bank at Kholo Creek in April 2012, over a week after her husband reported her missing from their Brisbane home.
No cause of death could be identified.
The High Court hearing is on July 26.
- ARM NEWSDESK
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