How can GBC appeal? Discussion, links, and documents

Discussion in 'Allison Baden-Clay of Australia' started by Kimster, Jul 17, 2014.

  1. Kimster

    Kimster Former Member

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

    http://www.brisbanetimes.com.au/que...-appeal-murder-conviction-20140717-ztyjv.html

    http://www.abc.net.au/news/2014-07-...ches-appeal-against-murder-conviction/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. Kimster

    Kimster Former Member

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    Copied from the post trial thread. It's a good reference for an in-depth discussion about the appeal.
     
  3. Curiousasacat

    Curiousasacat New Member

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    First, in a very long time : )


    Sorry Marly and Kimster, we are an immature bunch.
     
  4. Forensics

    Forensics Member

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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. Fluffykins

    Fluffykins Well-Known Member

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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. PrimeSuspect

    PrimeSuspect Under the Milky Way

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    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.

    http://www.forensicpathologyonline.com/e-book/asphyxia/suffocation-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.

    :moo:
     
  7. Champagne4lulu

    Champagne4lulu New Member

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    God I hope the appeal doesn't see the light of day primesuspect!
     
  8. Anonthemouse

    Anonthemouse New Member

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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. Wolfinator

    Wolfinator New Member

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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. Forensics

    Forensics Member

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    :welcome4:Congratulations on your first post Wolfinator :welcome4:

    Looking forward to reading more of your informative posts.
     
  11. Oberammergau

    Oberammergau New Member

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    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. BatWoman

    BatWoman Member

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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.
     
  13. drsleuth

    drsleuth Well-Known Member

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    They won't let me have my phone ;-)
     
  14. Wolfinator

    Wolfinator New Member

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    Some more light reading for your Batwoman

    http://www.judcom.nsw.gov.au/public...search-monograph-35/Monograph35_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. JCB

    JCB New Member

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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/s....html?stem=0&synonyms=0&query=title(Shepherd)
    http://www.google.com.au/url?sa=t&r...YwtvBZjO7RGjmSld1h2qt0w&bvm=bv.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/abou...aw-appeals/Pages/High-Court-of-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&...U6sFq4odrxCMIQIjDRmrvJw&bvm=bv.71198958,d.dGc
     
  16. Susan12

    Susan12 Member

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    I read the news article just then and it's expected he'd try to appeal but the grounds are ridiculous. The judge in so many words already told the jury that they were to only consider circumstantial evidence if they believed it was indicative of guilt and that on the whole of the evidence if there was another reasonable conclusion other than that he killed her they had to find not guilty. The judge pointing out each piece of evidence specifically and saying that like the appeal suggests he should have done would have been superfluous and would not have changed the outcome. The jury wouldn't have been like, oh now you say that I hadn't thought of that and it makes all the difference. Come on, seriously!

    The last ground I don't agree with he just summed up what the defence and prosecution said me the prosecution said that. The first one, that a verdict of murder is unreasonable. WTF. How is that grounds for appeal and certainly most of the country must be unreasonable then as we pretty well all think he's guilty! I hope the request for appeal is thrown out and fast to see more stress in the family. Very weak grounds IMHO. Maybe that's all they've got.
     
  17. Bazinga

    Bazinga Well-Known Member

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    Do we have the judge's summary (defence and then crown) and instructions to the jury here? I think I followed it via tweets so hard to compare to these points of appeal.
    I do feel for the Dickies. I'm sure they knew this was likely though.
     
  18. t777

    t777 New Member

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    There are some VERY astute legal minds on this forum.

    at risk of shutting down fair and welcome insight here, is there a chance that the defence team has eyes on forums such as this, and that the clearly well considered response to status of the appeal ie: reasons for dismissal, could give his legal team additional fodder? (I am not being dismissive of the acumen of GBC team. just concerned that super smart legal-minded contributors to WS are potentially posting some really solid counter arguments that could aid the appeal?)
     
  19. Fluffykins

    Fluffykins Well-Known Member

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    RSBM & BBM. IMO they are clutching at straws with regard to the blood in the Captiva. Given that the blood could not be dated, how could it central to the Crown case? It was only ever a piece of supporting evidence; supporting the far more damning evidence of GBCs facial scratches and botanical material from the Brookfrield Road property in ABCs hair.

    Given the defence offered no reasonable alternate explanation for how Allison's blood arrived in such an unlikely position in her car, it did tend to support the Crown's case, but that's all it did, and I fail to see how the lack of any direction of the jury, in the matter of the date to it being deposited in the car, could be used to discredit the Crown's case.

    I would think any reasonable consideration of that blood would have to consider the likelihood of Allison leaving it there had she been aware of it. It's not as though she could have suffered an injury sufficient to cause that much blood loss and then blithely ignored it. You don't bleed all over your car or your furniture or whatever and just leave it there; you clean it up because leaving bodily fluids lying around is so distasteful. It's not hygienic; it's not done; and as a mother of three children she had no shortage of experience at cleaning up bodily fluids. IMO it's reasonable to assume the presence of that blood supports the other evidence.

    Also IMO what's not reasonable is to use a piece of relatively minor, supporting evidence as a basis for appeal. It's so far outweighed by the evidence of the facial scratches and the plant material in her hair.
     
  20. Bekazzled

    Bekazzled New Member

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    I think your opinion is sound and I can't really logically argue against it. For some reason though, in spite of all this I have a gut feeling his appeal won't be successful. Though the general expert opinion in the media is that the appeal won't be successful, this could be just a reflection of the fact that the media acknowledges no member of the public wants a successful appeal. A few news sites have noted that he may be successful in his appeal (e.g. http://www.abc.net.au/news/2014-07-...ches-appeal-against-murder-conviction/5604432).

    Not sure why I therefore have the feeling that his appeal will be unsuccessful but it's probably something as simple as me constantly thinking for weeks, "I bet he'll get out of this somehow" and then realizing that his guilt has always been more apparent to the jurors/court/judge than outsiders can conceive. There were his theatrics in the court (passing notes, constantly arranging for sidebars) and as we saw in the footage from when Allison went missing, he is a terribly bad actor when he's required to act the part of a grieving husband. (Not to mention all of all the overwhelming evidence.)

    I just need to vent my irritation over a few aspects of his appeal:

    For one, I can’t believe he’s kicking up a song and dance about the blood in the Captiva being irrelevant. To me, this is one of the most damning things (even though there’s so many very, very damning pieces of evidence) that links him to the crime, especially given the fact that the car had only been in the family for less than two months. I would be satisfied beyond reasonable doubt that the blood loss occurred that evening or early a.m., given that a) Allison had shown no injuries in the weeks leading up to her death and if she had, GBC would have said that would have been the reason for the blood and b) the general unlikelihood of Allison unintentionally injuring herself at some point in that exact location in the car (near floor of the boot). I know a lot of people who have said, “I slammed my finger in the car door” but I have never, ever heard anyone say, “I was crawling into the back of the car, slipped, cracked my head open in the area above the rear car wheel, walked away and never said anything about it, never cleaned it, and never showed signs on my body of any injury.”

    However, this line in the article disturbed me:

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

    Does this mean the judge should not have allowed the jury to come to the conclusion that GBC deliberately made razor cuts to his face, or an insinuation that the judge or prosecution suggested this was likely at some point before the jury made a decision?
     

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