UPDATE: A HIGH Court justice has questioned whether a jury could have decided Gerard Baden-Clay was "in a fix" and his wife's death was the only way "out of the corner he has painted himself into".

Justice Patrick Keane said if the jury was entitled to believe Baden-Clay was "in a fix", that he was conscious of a problem and he intended to keep a promise to his mistress to leave his wife Allison, then an intentional killing could not be ruled out.

"That's not neutral as between an unintentional killing and an intentional killing because an altercation which just happens, which doesn't lead to his wife's death, doesn't solve his problems," he said.

"Only an altercation that results in death solves his problem."

Baden-Clay's barrister Michael Byrne told the High Court his client was not under the intense pressure to leave his wife as the Crown argued because lover Toni McHugh never believed Baden-Clay would honour any commitments he made over their four-year affair.

"It's hard even from the scenario Your Honour properly puts to us that the intention of killing his wife would solve any of his problems," he said.

Justice Keane persisted, saying it was about Baden-Clay's frame of mind - having declared he would be with his lover by July 1 and being confronted with the prospect his wife might meet his mistress the next day.

"It's open to the jury to consider or conclude he saw himself as being in a fix, that there aren't any other ways out," he said.

"There's no suggestion divorce proceedings are contemplated, much less they could be completed by July 1.

"There's no suggestion he's intending to leave home without resolving his situation with his business and his wife.

"So far as the jury are confronted with this evidence about how he is thinking - not about what Ms McHugh is making of it but what he's thinking - a mere confrontation with his wife that doesn't result in her death, doesn't get him out of the corner he has painted himself into."

Justice Virginia Bell added that Ms McHugh made it clear she had to attend the conference Allison Baden-Clay was attending because she had just secured a new job.

She said Ms McHugh was angry, distressed and making it clear how unfair it was they should both be at the same conference.

 "It would be a very calm individual who entertained no thought that Ms McHugh might confront the wife and bring into the open that the affair was very much ongoing," she said.

Mr Byrne said there was no suggestion Ms McHugh would reveal the affair the following day.

He said even when the affair was first exposed, it was not through Ms McHugh.

The High Court justices also grilled Baden-Clay's lawyers over how the Queensland Court of Appeal could consider an hypothesis that Allison died from a fall following a confrontation when Baden-Clay testified at trial that he was not involved in his wife's death at all.

The appeal court presented this hypothesis as part of its reasoning for downgrading the jury's murder verdict to manslaughter.

"He has had the opportunity to give the evidence, he has given the evidence, it is inconsistent with any notion at all that there was an unintended killing by him," Justice Keane said.

Mr Byrne argued the onus was on the Crown to prove intent.

He said Baden-Cay's evidence in the witness box did not prevent the appeal court from considering an alternative hypothesis.

The families of Allison and her husband were in court for the hearing.

The High Court has reserved its decision on whether to re-instate Baden-Clay's murder conviction.


EARLIER: A JURY could have used the fact Gerard Baden-Clay was "a man charged with sexual urges" who was in "financial distress" in considering whether he had motive to intentionally kill his wife Allison, a High Court has heard.

Walter Sofronoff, acting for the Crown, also said a jury could have used the way Baden-Clay dumped his wife's body at Kholo Creek, and displayed "phoney concern" in the days following her disappearance, to show he was "not only calculated but cold-blooded".

He told five High Court justices a jury in Baden-Clay's murder trial could have used this information when reaching its verdict he intended to kill his wife.

The Crown is arguing in the High Court that the Queensland Court of Appeal erred in three ways when it downgraded the Baden-Clay jury's murder conviction to manslaughter.

Mr Sofronoff said the appeal court wrongly concluded there was no evidence of motive and that dumping Allison's body did not prove intent.

He said the Queensland appeal court then wrongly concluded there was a reasonable hypothesis - where Allison fell and died during an argument - that did not involve intent to kill.

Mr Sofronoff said Baden-Clay had pronounced his love for his mistress Toni McHugh verbally, and in emails, just days before he killed his wife.

"As to the issue of motive, evidence was led about (Baden-Clay's) love affair with another woman and his longing to be with her and evidence was led about (his) financial position which was one in which he could not afford a divorce," he said.

"We have cited in our outline a number of cases which fall authority to a proposition that evidence for motive including evidence of a man's longing to be with a woman other than his wife is evidence from which intent to murder could be inferred."

The late Allison Baden-Clay.
The late Allison Baden-Clay. Contributed

Mr Sofronoff said Baden-Clay was meeting with his lover, an employee of his real estate business, for sex about four times a week after the affair began in 2008.

He said while it ended in September 2011 when Allison found out, it began again over the Christmas holidays at Baden-Clay's request.

Mr Sofronoff said Baden-Clay told Ms McHugh he wanted to leave his wife to be with her "unconditionally" one day and talked about finding a home for her and his children to all live together.

He said Baden-Clay gave a solid commitment to his lover that he would leave his wife by July 1 while still having counselling with his wife.

Mr Sofronoff said Baden-Clay was asked to answer intimate questions about an affair he claimed was over during those counselling sessions.

Toni McHugh
Toni McHugh

"The jury could infer having to undergo such a question even if the affair had ended would have been a very painful matter, speaking from his point of view," he said.

"But to have to undergo these questions about an affair she believed had ended but that he had not ended … rendered the process …  agony.

"His lover on one hand was demanding unconditional love and presence, and his wife, falsely believing the affair was over, was working with him … in a way that required him solemnly to lie to her and to lie by not disclosing the continuing affair."

"In our respectful submission, that is evidence… that is capable of being regarded by the jury as evidence of motive to kill, as going to intention if the jury chose to see it that way."

Mr Sofronoff said while Baden-Clay had not previously harmed his wife, there had been a change the day of the killing - knowing his wife and lover would be at the same real estate conference the next day.

He also said the jury might well have concluded Baden-Clay knew the affair could be deemed motive to kill and hid it for that reason.

"The consequence of treating the evidence I've related of evidence of motive, and therefore not going to intent, is that the court's reasoning was reasoning which involved a piecemeal evaluation of the evidence, a separation of each piece," he said.

"A criticism of each piece is incapable on its own of proving intent.

"One powerful piece of evidence, when considered in the light of the whole of the evidence in the circumstantial case is (Baden-Clay's) lies to police about the continuing affair.

"He hid the continuation of affair from police. This is as significant as the affair itself.

Mr Sofronoff also said the financial position of his family was desperate and Allison's blood was found in a new car.

Baden-Clay's lawyers are now arguing their side of the case.

The hearing continues.

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