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  1. #1

    How can GBC appeal? Discussion, links, and documents

    Please list the reasons for the appeal here and lets discuss whether he has a case for appeal.

    http://www.brisbanetimes.com.au/quee...717-ztyjv.html

    http://www.abc.net.au/news/2014-07-1...iction/5604432

    "A miscarriage of justice occurred because the jury should have been, but was not, directed that the presence of the deceased's blood in a motor vehicle was only relevant if the jury was satisfied beyond reasonable doubt that the presence of blood was attributed to an injury sustained to the deceased's body on the evening of 19 April 2012 or the morning of 20 April 2012," the application reads.

    "The trial judge erred in law in not directing the jury that they needed to be satisfied beyond reasonable doubt that the appellant placed the body of the deceased at Kholo Creek in order to use such a finding as post-offence conduct going to guilt.

    "The trial judge erred in leaving to the jury that the appellant attempted to disguise marks on his face by making razor cuts."

  2. #2
    Quote Originally Posted by itsthevibe View Post
    I would be interested to know from Alioop what the process is for appealing? An appeal has been lodged - or is it an application for an appeal to be granted? meaning - just because they've lodged an application doesn't mean there will be an appeal? Meaning that the grounds for the appeal have to be accepted and then an appeal granted - so the application could be thrown out?

    Would just like legal clarification on this, and it would be good to know what the details of the process are, who makes the decision, and the timeframe?
    In the temporary absence of Alioop, this may explain the process:

    [Court of Appeal
    The Court of Appeal is a division of the Supreme Court and hears all appeals from the Supreme and District Courts, and many tribunals.

    The court does not hear entire cases or have a jury, and deals only with the subject of the appeal. It is made up of three or five judges of the Supreme Court who consider the grounds of the appeal and make a judgment.

    The judges listen to the arguments by the opposing sides and decide whether an error of law was made or some crucial fact was overlooked in the original hearing.

    The Court of Appeal can:

    dismiss the appeal and uphold the decision of a lower court or tribunal
    allow the appeal, set aside the decision of the lower court and make a different order in its place.
    If the appeal is dismissed, nothing changes. If the appeal is allowed, the judges can order a retrial or make a different order in its place.

    http://www.courts.qld.gov.au/courts/court-of-appeal
    Copied from the post trial thread. It's a good reference for an in-depth discussion about the appeal.

  3. #3
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    First, in a very long time : )


    Sorry Marly and Kimster, we are an immature bunch.
    Justice for those no longer able to seek justice themselves.

  4. #4
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    In most cases, the Appeals Court will only hear legal arguments about specific points in relation to the jury's decision-making and actions or the judge's explanations. Only the evidence that was given at the original trial is considered so that nothing new can be introduced into the appeals process. It can take some months before the Court considers an appeal so we could have another l-o-n-g wait.


    http://www.courts.qld.gov.au/courts/court-of-appeal

  5. #5
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    It is so unfair on the Dickies that they be made to go through this so soon after the trial. No doubt there are valid reasons why the legal system requires that an appeal be lodged within a certain period, but it gives the victims no respite from the process. I suppose you could say there's a teeny tiny element of consideration for the victims in that they don't have to sweat it out over a longer period, but sheesh ... it just doesn't seem right after all they've been through.

  6. #6
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    Quote Originally Posted by Kimster View Post
    Please list the reasons for the appeal here and lets discuss whether he has a case for appeal.

    http://www.brisbanetimes.com.au/quee...717-ztyjv.html

    http://www.abc.net.au/news/2014-07-1...iction/5604432

    "A miscarriage of justice occurred because the jury should have been, but was not, directed that the presence of the deceased's blood in a motor vehicle was only relevant if the jury was satisfied beyond reasonable doubt that the presence of blood was attributed to an injury sustained to the deceased's body on the evening of 19 April 2012 or the morning of 20 April 2012," the application reads.

    "The trial judge erred in law in not directing the jury that they needed to be satisfied beyond reasonable doubt that the appellant placed the body of the deceased at Kholo Creek in order to use such a finding as post-offence conduct going to guilt.

    "The trial judge erred in leaving to the jury that the appellant attempted to disguise marks on his face by making razor cuts."
    I'm still baffled why the charge of 'interfering with a corpse' was dropped in GBC's trial? Imo, GBC's lawyers had this removed from the list of charges, again, why? Allison's dead body was somehow transferred from her home address to Kholo Creek, if not by GBC then who? If this case is retried, I think this charge should be added and he receives a lengthier sentence if he's found guilty.

    [Kristi Abrahams who killed her daughter Kiesha, was charged with murder and interfering with a corpse, an autopsy could not establish the exact cause of death. Brett Cowan was also charged with murder and improperly disposing of a corpse amongst other indecent charges towards a child. No exact cause of death for Daniel Morcombe either.]

    As the autopsy was inconclusive on exact cause of death as in the Kiesha Abraham and Daniel Morcombe due to decomposition, I don't believe the appeal has a case. GBC murdered Allison, not with a gun or a knife which leaves smothering, and that cannot be established because she was left exposed to the elements for too long. Imo, the lawyers are just following procedure for an appeal. GBC killed her and unless he confesses we will never know exactly how.

    Maybe, the forensics doctor could have been more specific about reasons which could account for blood in the car. One reason is due to nose bleed which can occur after smothering death. I don't remember this being brought up. There may have been a head or face injury, a bleeding tooth/mouth which I think was hinted at.

    The asphyxial signs and symptoms are severe, because death usually results due to slow asphyxia and often fatal period is 3 to 5 minutes. The head and face may show intense congestion and cyanosis with numerous petechial haemorrhages in the skin of the face and beneath the conjunctivae. Blood may ooze from mouth and nose. The tongue may be protruded and have been bitten.
    http://www.forensicpathologyonline.c...ion-smothering

    GBC did try and disguise the gouges with more razor cuts so I don't understand their point on that score. Why were there little nicks around the gouge marks unless HE did them? The point is he lied about the fingernail drag marks on his face and how he received them.

    IMO, this appeal will never happen.


  7. #7
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    God I hope the appeal doesn't see the light of day primesuspect!

  8. #8
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    You know I believe that appeals are an important part of our legal system. However because of the fact that there is "nothing to lose", I do think that there should be some disincentive for vexatious appeals. To limit the waste of money and time (since other cases are obviously pushed back to accommodate them) I suggest that this is something the government should consider.

  9. #9
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    Long time lurker - first time poster.

    Here's some light bed-time reading (not) if you are interested in Qld Appeals processes, appeals for misdirection and stats of outcomes. Data for QLD is sketchy but VIC experience is useful.

    http://www.qlrc.qld.gov.au/reports/r66_vol_1_Web.PDF

    Chapter 6 is pretty relevant to GBC appeal...

    6.4 It is also critical that there be available an open and effective system of appeal
    so that any suggestion that a trial might have miscarried can be reviewed by a higher
    tribunal, and either dismissed or accepted, with the result that a new trial is ordered or,
    as occurs more rarely, a new verdict imposed. If a re-trial is ordered, the second verdict
    may well, of course, be the same as the first, but public confidence in an open and fair
    criminal justice system demands that the verdict be reached at the conclusion of a fair
    trial and that it not be undermined by a significant flaw in the process even if the
    outcome is ultimately the same.
    6.5 At the same time, the public interest demands an appeal system that runs
    effectively, that is not congested by patently unmeritorious appeals — and that the rate
    of successful appeals is not so high that it would suggest that there are systemic
    problems in relation to the trials that need correction. A fair and accessible appeal
    regime is essential not only to ensure justice in particular cases but to allow a judicial
    system, especially one based on the common law, to develop and renew itself.

  10. #10
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    Quote Originally Posted by Wolfinator View Post
    Long time lurker - first time poster.

    Here's some light bed-time reading (not) if you are interested in Qld Appeals processes, appeals for misdirection and stats of outcomes. Data for QLD is sketchy but VIC experience is useful.

    http://www.qlrc.qld.gov.au/reports/r66_vol_1_Web.PDF

    Chapter 6 is pretty relevant to GBC appeal...

    6.4 It is also critical that there be available an open and effective system of appeal
    so that any suggestion that a trial might have miscarried can be reviewed by a higher
    tribunal, and either dismissed or accepted, with the result that a new trial is ordered or,
    as occurs more rarely, a new verdict imposed. If a re-trial is ordered, the second verdict
    may well, of course, be the same as the first, but public confidence in an open and fair
    criminal justice system demands that the verdict be reached at the conclusion of a fair
    trial and that it not be undermined by a significant flaw in the process even if the
    outcome is ultimately the same.
    6.5 At the same time, the public interest demands an appeal system that runs
    effectively, that is not congested by patently unmeritorious appeals — and that the rate
    of successful appeals is not so high that it would suggest that there are systemic
    problems in relation to the trials that need correction. A fair and accessible appeal
    regime is essential not only to ensure justice in particular cases but to allow a judicial
    system, especially one based on the common law, to develop and renew itself.
    Congratulations on your first post Wolfinator

    Looking forward to reading more of your informative posts.


  11. #11
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    Quote Originally Posted by Fluffykins View Post
    It is so unfair on the Dickies that they be made to go through this so soon after the trial. No doubt there are valid reasons why the legal system requires that an appeal be lodged within a certain period, but it gives the victims no respite from the process. I suppose you could say there's a teeny tiny element of consideration for the victims in that they don't have to sweat it out over a longer period, but sheesh ... it just doesn't seem right after all they've been through.
    APPEAL!!!
    Grounds for appeal=
    Missing mummy and daddy
    Doesnt like communal showers
    All the other men are naughty!
    Crying at night
    Its just not fair!
    I needed the money

  12. #12
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    THanks Wolfinator. I was looking for something like that. Chapter 6 about appeals is very interesting. Sadly though, the number of appeals upheld was higher than I'd thought.
    To the batmobile!

  13. #13
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    Quote Originally Posted by Oberammergau View Post
    APPEAL!!!
    Grounds for appeal=
    Missing mummy and daddy
    Doesnt like communal showers
    All the other men are naughty!
    Crying at night
    Its just not fair!
    I needed the money
    They won't let me have my phone ;-)

  14. #14
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    Quote Originally Posted by BatWoman View Post
    THanks Wolfinator. I was looking for something like that. Chapter 6 about appeals is very interesting. Sadly though, the number of appeals upheld was higher than I'd thought.
    Some more light reading for your Batwoman

    http://www.judcom.nsw.gov.au/publica..._Chapter_2.pdf

    The QLRC reported that for the period 1999/2000–2007/2008, 229 of 793 (28.9%) conviction appeals were
    allowed.54 However, the total figure includes conviction appeals that were abandoned during the final two
    years. If these conviction appeals that did not proceed are excluded, the success rate rises to 30.2% (229
    of 758 conviction appeals). For the six-year period 2000/2001–2005/2006, the success rate was 26.1%
    (141 of 540 conviction appeals). This rate was significantly lower than the rates in Victoria (41.7%) and
    New South Wales (36.9%). As with Victoria, there was some fluctuation in the annual conviction appeal
    success rates over this period: 32%, 28%, 21%, 22%, 28% and 30% in the respective years.


    In summary - this is far from over.

  15. #15
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    2 things have surprised me after the jury returned their verdict, Justice Byrne's sentencing remarks which were much, much shorter than I would have expected and the speed at which the appeal was lodged. I cannot recall a single instance where an appeal was lodged so quickly after conviction of a serious offence ever. There are a few more grounds that I thought may have been explored but owing to their omission and the timeliness of the appeal, it leads me to believe there is a degree of confidence in the defence camp although obviously this is speculation and my opinion only.

    Those who have read my posts over the duration of the trial would recall that I believe that the prosecution argument hinged on both the blood in the Captiva (ground 2 of the appeal) and the moving and eventual dumping of Allison's body at Kholo Creek (essentially ground 3). You'd also remember that I was confident that GBC would be acquitted on this basis (although far from happy about it) but as soon as Justice Byrne finished his directions to the jury I knew in my heart that a guilty verdict was forthcoming. Although obviously extremely happy with the verdict, I held (and still hold) grave fears that the verdict won't survive the scrutiny of the appellate court (whether that be CoA or HCA).

    Kimster invited us to offer an opinion as to the likelihood of success of the appeal so I submit the following.

    Ground 1, unsafe and unsatisfactory verdict - Disregarding the other 3 grounds of appeal, I couldn't be totally sure that this ground has sufficient merit to quash the conviction for murder. However you need to view this in conjunction with the other grounds of appeal. If the Court of Appeal holds that the verdict was indeed unsafe and unsatisfactory then it's likely that a verdict of acquittal will be substituted and there will be no retrial. This is not absolute but as a rule unsafe and unsatisfactory usually results in acquittal.

    Ground 2 and 3, the blood in the Captiva and whether or not the Crown proved GBC placed Allison's body at Kholo Creek. Usually in a circumstantial case there is no requirement for individual pieces of evidence to be proved beyond reasonable doubt. But occasionally there are certain pieces of evidence which are absolutely vital to the prosecution argument and these must be proved beyond reasonable doubt. In a largely or entirely circumstantial case, the Judge may, and should make what is known as a "Shepherd Direction" (as per Shepherd v The Queen (1990) 170 CLR 573, link to follow) which essentially places a greater burden (as far as beyond reasonable doubt) on a particular piece of evidence over much or all of the other evidence. As I've stated throughout the trial, it is my belief that what ultimately became grounds 2 and 3 of the appeal were absolutely central to the Crown case and it comes as no surprise to me that they form a part of the appeal.

    Ground 4 I'd have to look at further before making any comment.

    If the Justices of the Court of Appeal view ground 1 alone as being insufficient to interfere with the verdict but see merit in 1 or more of the other 3 grounds, they would then look at whether or not if the jury was properly instructed that they could have reached a verdict of guilty. If the answer is yes (and 1 of the later 3 grounds is upheld) then it is likely that a retrial would be ordered (it goes without saying that the verdict must be vacated if a ground of appeal succeeds). It would then be up to the ODPP whether or not to prosecute GBC again. If the misdirection (if it is established that one occurred) was of such a nature that a properly instructed jury could not reach a guilty verdict in the opinion of the majority of the CoA, GBC would almost certainly be acquitted and not face a retrial. I have previous linked a copy of the Director's Guidelines, mods please let me know if I need to provide the link again.

    If a retrial is ordered and ultimately proceeds, some have asked the question whether he could get a fair trial. My answer is I don't know... The post trial publicity has been so extensive and potentially prejudicial that I very much doubt that he would receive a fair trial by jury (claims that GBC asked someone to kill his wife on a previous occasion, evidence from the pathologist which was not allowed at trial has been widely publicised, claims that a "Captiva like" vehicle was filmed on the infamous roundabout, statements from police along the lines of "they knew they had their man" and so on). A no jury order (or judge only/bench trial, whatever you wish to refer to it as) could be applied for by either party and in my opinion, probably granted, but it's also possible that a permanent stay could be ordered which means GBC would never face a retrial. A stay is unlikely, but not totally beyond the realms of possibility. A judge only trial would seem to be the logical course of action to me.

    Judge only trials in the District and Supreme Courts have only been introduced relatively recently in QLD so there isn't a great deal of data available but of the 6 judge only trials I can recall off the top of my head, all but 1 resulted in acquittal (and that was a case of a complex question of law as opposed to prejudicial publicity). I shall provide a (slightly outdated) link at the end of this post.

    If a retrial is ordered then I'd argue that defence has a distinct advantage as they can completely restructure their defence in light of the first trial (and adduce new evidence, I'd suggest a more thorough survey of tidal movements after heavy rainfall would be undertaken). Plus as noted above, judge only trials, while only in their infancy, tend to favour the defendant quite substantially.

    I have to say that I am extremely disappointed in the media though. They fail to realise that the matter is still technically sub judice until all avenues of appeal have exhausted. As well as the GBC case, extremely prejudicial information about BC was also released immediately after his conviction which will almost certainly necessitate a judge only trial if his appeal is successful. There would be very few people old enough to serve on a jury in QLD who would not now be aware of his prior convictions. It is only a matter of time before this jumping of the gun in a ratings grab is going to lead to a dangerous person being acquitted on appeal/retrial or receiving a permanent stay. I can only hope it doesn't happen in either of these cases but it is my belief that it will happen in the near future.

    http://www.austlii.edu.au/cgi-bin/si...%28Shepherd%29
    http://www.google.com.au/url?sa=t&rc...71198958,d.dGc

    Oh and to address a couple of questions in the other thread.

    1. Legal Aid funding is indeed available for a HCA appeal, should it get to that stage - http://www.legalaid.qld.gov.au/about...Australia.aspx

    2. GBC would not appear at any appeal as neither he, or any other witnesses are required to give evidence. Generally the only defendants that appear at appeals are those who are self represented. It's not a case of GBC not wanting to face the court, his presence is simply not required.

    Edit - A further link expanding on the concept of a Shepherd Direction and the rope and chain analogy

    https://www.google.com.au/url?sa=t&r...71198958,d.dGc
    Last edited by JCB; 07-17-2014 at 06:10 AM.

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