How can GBC appeal? Discussion, links, and documents

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

  1. Bekazzled

    Bekazzled New Member

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    re: t777

    Though there are certainly some very solid legal minds here, I'm pretty sure GBC and his team will no stone unturned re: an appeal. I think anything we could speculate about has already been considered by his team already.

    I also doubt they'd be reading this forum - the GBC team and family must know that forums like this will be awash with those who find him guilty, so generally any information offered up here would be most likely against him.

    I hope/think in any case.
     


  2. JCB

    JCB New Member

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    With the greatest of respect, every piece of evidence in a circumstantial case is supporting, by definition that is what a circumstantial case is :)

    The issue for the prosecution here is that they cannot place GBC anywhere along the route to Kholo Creek, from the time he left the house until the time he returned. That is a massive hole both in probative and chronological terms. Therefore they rely extremely heavily on the Captiva evidence as this is the only link proffered by the prosecution as to the transporting and disposing of Allison's body.

    If we totally disregard the evidence of the blood in the Captiva as though it didn't exist, the prosecution case completely collapses - the so called "broken link". Because of this, the blood becomes, in the opinion of myself and the defence team obviously, a piece of evidence that must be subject to the full criminal burden of proof, beyond reasonable doubt. Justice Byrne did not direct make a Shepherd Direction and this is the basis for the appeal, well that particular ground anyway.

    The scratches, if the jury accepts that they were caused by fingernails (which apparently they did) proves only that an altercation of some kind happened that night. The plant matter found in Allison's hair may well been acquired at the BC residence (although there is some suggestion otherwise, but I concede that on the balance of probabilities, that is probably the case). But it remains that, outside of the blood in the Captiva, there is zero evidence to suggest that GBC transported Allison's body to the final resting location as per the prosecution argument. It is the only evidence that could possibly support the prosecution's assertion as to what happened over the next hour or so.

    There are some possible explanations as to how the blood may have got there, some of which were discussed on here during the trial, but the prosecution did not explore ANY of these possibilities, it was almost completely brushed over with little or no explanation. It was basically a case of "we found an amount of Allison's blood in the Captiva, now moving along to the next witness".

    On the basis of the evidence led at trial, the Crown has not even gone close to proving that Allison's blood was transferred on the night of the murder beyond a reasonable doubt. It is up to the Court of Appeal to determine whether or not this evidence should have been subject to the more stringent criminal burden of proof (in the total absence of anything else that places Allison in the Captiva or GBC along the route to Kholo Creek) and if it finds that is the case, it further must be determined whether it is considered fatal to the Crown case in which case GBC will be acquitted but if the CoA believes there is some prospect of a properly instructed jury still finding the defendant guilty, a retrial would be ordered. Of course the appeal could fail on all grounds in which case the conviction would stand pending any High Court appeal.


    It absolutely would be the most damning piece of evidence of the entire trial, if the prosecution could have proved how and when it got there. As it transpired, they did neither and it was left to be part of the circumstantial puzzle. We can speculate all we want (and we did at length during the trial!) but the jury did not have that luxury, they could only come to a conclusion on the basis of the evidence led at trial which was virtually nothing. It will come down to whether the CoA regard it as a piece of evidence that needed to be proved beyond reasonable doubt and if that's the case, this appeal is not going to end well.
     
  3. JCB

    JCB New Member

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    I actually think the opposite, I'd be shocked if they weren't perusing forums such as this.

    The age of discussion forums and social media means that the defence has access to quasi mock juries at their fingertips. Granted, most people here thought GBC was guilty from the outset but members of the defence team may well have been lurking just to see the typical responses to a number of things in order to pre-empt the thinking of some of the less sympathetic members of the jury.

    It's possible that oversights could have been picked up but the fact that 2 of the 4 grounds of appeal matched my concerns throughout the trial was not a surprise at all. Some of the greatest legal minds in the country were working on this case, they were very obvious (potential) deficiencies to anyone who has even studied law, nevermind practices law.
     
  4. Fly

    Fly New Member

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    JCB, I always appreciate your level-headed, well thought out responses. Thanks.
     
  5. Daisyinthedesert

    Daisyinthedesert Member

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    I work in a law firm and I can assure you that lawyers or their law clerks always check Facebook and anything else they can find to help their client, negative or not. Both the prosecution and defence would be reading these threads and anything else they can find.
     
  6. Fluffykins

    Fluffykins Well-Known Member

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    RSBM, and apologies for repeating myself:

    Yep Bekazzled, I think we are agreeing on something similar here, but much hindered by the length of time it takes to type what we could convey in person much more easily.

    Also I think you are saying it much better than I can. I agree, if there were any evidence of her having suffered a prior injury in her car, surely we would have heard all about it. Why didn't the defence offer any alternative explanations? I can only assume there aren't any. I'm left with the assumption or conclusion that the means of her blood arriving in a most unlikely place in her car, by otherwise unexplained means, is most likely attributable to foul play. And therefore that foul play is the most likely reason for her death.

    I am so :bedtime: right now. See you tomorrow! :seeya:
     
  7. ~Katie~

    ~Katie~ Member

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    Just a question for one of the legal experts on here:

    If they charge someone else for moving the body to Kholo creek before the appeal is heard, what would happen to this part of the appeal?




    (I don't know if they have enough evidence to charge anyone else, but I'm just curious about what would happen if they did).
     
  8. JCB

    JCB New Member

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    I am not a verified expert on this forum so please don't consider the following authoritative, only my personal opinion (one that I'm sure alioop or another verified expert can expand on).

    I don't believe a third party will be charged in relation to Allison's death, particularly as far as interference with a corpse goes.

    1. The prosecution alleged that GBC was responsible for transporting Allison's body to Kholo Creek, if they charged someone else with the same offence (acting alone) then GBC would be the victim of a gross miscarriage of justice.
    2. If GBC did in fact transport Allison's body with some assistance, surely this would have been raised at trial because there was a very real danger that the prosecution case would be rendered defective because of the total lack of evidence otherwise. Any evidence that a third party assisted would logically have been raised at GBC's trial.

    <modsnip>

    It's my belief that the interference charge was dropped simply because the prosecution feared it would become a distraction that deflected away from the primary charge of murder. In a case such as Cowan, where admissions have been made, then it is appropriate to proceed with the charge but as cold and clinical as this may sound, the penalty for interfering with a corpse is pretty much always served concurrently with the sentence for murder, meaning no additional time would be served. The reason that it sometimes isn't pursued is because, as I said above it's something of a distraction to the "main show" and in a case like this, a finding of guilt is essentially an acknowledgment that the accused was guilty on that count anyway.
     
  9. Total

    Total New Member

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    Respectfully snipped by me.


    Just a few thoughts on your expansive post.

    I understand that you are looking at the case through the prism of the law. What is often missed in applying this to reality, IMOO, is that the Crown (the State) is acting on behalf of the community (through the jury), hence directions by the judge to the jury, hence the judge not spelling out what is beyond reasonable doubt, hence the judge explaining how the law as it applies does not require in circumstantial cases for individual pieces of evidence (such as the leaves in the hair (fact), Allison's blood in the Captiva (fact), the fingernail scratches (fact), the emails (fact), the financial desperation (fact), the phone charger (fact)), to be by themselves to be enough to convict. Rather like fibres making thread, thread making twine, twine coming together as rope, these facts have to be weighed up by the jury, and if the jury believes that the only rational explanation for these circumstantial pieces of evidence is that these provide a rational conclusion that the accused is guilty of these, they must convict. The jury providing that additional element to the justice being meted out in the process, as people from the community, on behalf of all of us, working through what is reasonable doubt.

    In my view and experience, this is something of the highest order, and is something that the Court of Appeal always takes into account as it is one of the foundations of our justice system.

    I personally believe that the directions by the judge were incredible balanced and clear. Please go back to some instances where the jury asked for further clarity from the judge. His closing statements were balanced and clear.

    Having said all that, I am sure that the BCs will leave no stone unturned as IMO this is not just a matter for GBC, trying to get the verdict squashed or overturned is a self preservation matter for those within the family who I believe we're involved in the second charge (that somehow fell of the wagon during the trial, for which no adequate explanation has appeared in the MSM ). My gut feeling tells me, keep denying and appealing, which keeps the focus on the trial and on GBC, as this keeps the focus away from NBC and OBW. They are desperate people acting in desperate ways and sadly using up a lot of taxpayers money in the process. Even if the are unsuccessful in the Court of Appeal they will try and find a way and means to appeal further.

    There is not just one person involved in denial but a family in denial. Justice will be served.
     
  10. Champagne4lulu

    Champagne4lulu New Member

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    I was about to say much the same thing. I'm no legal expert, but to me, all of this points to him. It's the only scenario that makes any sense. Looking at any one point of evidence in a circumstantial case is always going to make it less compelling but together it is damning beyond reasonable doubt. Sadly. As has been mentioned numerous times, people have been convicted and failed appeals on much less compelling circumstantial evidence and I actually believe in this verdict more than any I can remember.

    I believe they are clutching at straws and all this will do is making him and his family look far worse than they currently do.
     
  11. Bazinga

    Bazinga Well-Known Member

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    Regarding the prosecution proving or not proving that GBC transported ABC's body to Kholo creek bridge.
    He was charged with murder but the charges of interfering with a corpse were dropped.
    The circumstantial evidence - including facial scratches, GBC's behaviour, plant matter in hair, affair, financial pressures, mistress pressures, wife pressures, mistress and wife to be at conference next day, ABC's blood in the new Captiva in an area consistent with where a body might be placed for transport, toys placed in boot area that night, morning and more...
    I think the jury used all this circumstantial evidence to concluded beyond a reasonable doubt that GBC murdered ABC. The judge instructed that if any other scenario could reasonably possibly be true then he must be found not guilty. They could not imagine such a scenario and the defence did not put to the jury any scenario that they considered a reasonable possible alternative.
    I don't think the jury specifically decided that he interfered with her corpse or transported her body to Kholo, they were not asked to make that determination. It was - did he murder her? and the jury decided on the basis of all the evidence presented to them -yes he did.
     
  12. BreakingNews

    BreakingNews Well-Known Member

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    He's a widdle bit hurt
    He didn't do it, cause OW said he didn't
    They don't offer 'mail bag making' courses here anymore
    I have to dress myself
    No one likes me
    But I'm a B-C
     
  13. JCB

    JCB New Member

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    If I may, I'll respond to both of these posts together (time constraints and they pose similar questions). My apologies for not clarifying my statements this morning, had only just stumbled into work and I have a chronic case of Friday-itis!

    Speaking strictly from a personal point of view, I believe that it was open to the jury to convict GBC on the basis of Justice Byrne's directions. The $64,000 question is whether or not Justice Byrne erred in his directions and if the Court of Appeal deems this to be so, whether a verdict of acquittal is substituted (in which case there would be no retrial) or whether the CoA finds that while Justice Byrne may have erred, it is still open to a jury to convict if/when properly instructed in which case a retrial would be ordered.

    Essentially the appellant contends that certain evidence is so critical to tying all of the other circumstantial evidence together, that these individual pieces of evidence must be proved to the highest legal standard and the jury should have been directed in kind (the Shepherd Direction). Byrne QC noted this in his closing address but Justice Byrne made no such order in his directions (and thus 2/4 grounds of appeal).

    Think of it like a 5000 piece puzzle, there are thousands of individual pieces but only 4 corner pieces. Even before you begin the puzzle, you know if you cannot locate each and every one of these 4 pieces that the puzzle cannot be completed. It's true that other pieces may ultimately prove to be missing but the corners are the only pieces that you know from the outset that must be present and without all 4 of them, the puzzle is doomed to be incomplete. The defence submits that the blood in the Captiva is a corner piece and the acceptance of this evidence must be subject to the highest standard, beyond reasonable doubt. Not a great analogy I know, but hopefully you can understand where I am heading with this. Whether Justice Byrne disagreed or it was simply an oversight I don't know, but it will now be up to the CoA to make the call.

    For the prosecution to prove their circumstantial case beyond reasonable doubt, the jury must have accepted the prosecution version of events in which GBC took Allison's body to Kholo Creek in the Captiva as the only rational inference. The blood is vital because -

    - Nobody saw or heard GBC murdering Allison at the BC residence.
    - Nobody saw him place Allison in the Captiva.
    - Nobody saw GBC leave that night.
    - Nobody saw him en route to Kholo Creek.
    - Nobody saw him dispose of Allison's body at the scene.
    - No forensic evidence linking GBC to Kholo Creek was submitted.
    - Nobody saw or heard him return home.

    The prosecution, in very brief terms, submitted that Allison was smothered at the BC house, was unceremoniously bundled into the Captiva and taken by GBC to the bridge and dumped there. For the case to be successful, which it ultimately was, each and every part of the prosecution argument must have been accepted as the only rational inference that could be made given the evidence available to them. The forensic evidence in the Captiva is the only link to the transportation theory and as such, in my view should have been subject to the highest evidential standard and I believe it fell well short of the required standard. If the jury could not accept that the blood was transferred on the night of the murder beyond reasonable doubt, they must acquit as the chain of circumstantial evidence is then broken and ultimately irreparable (in my view). Is it likely that the blood was the result of happenings on the 19th? It's quite likely but by no means certain beyond reasonable doubt.

    It is my own personal view (and many will disagree, that is fine) that Justice Byrne incorrectly directed the jury in relation to ground 2 of the appeal and I'm of the opinion that the appeal must succeed on this basis (and this is disregarding the other 3 grounds). However I do not sit on the Court of Appeal, hell I'm not even a barrister so take my opinion with the largest grain of salt you can possibly find. I truly hope I am wrong but I think it is more likely than not that the verdict will be vacated on appeal.
     
  14. Cattail

    Cattail New Member

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    When you say you think the verdict will be vacated JCB, does that mean it just wipes the verdict and they start again with a retrial? Or that the verdict changes from guilty to acquitted?

    I wasn't aware of this Shepherds direction before. But I agree that the blood and the lack of evidence tying GBC to Kholo Creek were the weak points in the prosecution's case.



    Sent from my iPhone using Tapatalk
     
  15. fruity

    fruity Well-Known Member

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    it reminds me of this guy:

    the towels are too small
    the menu is boring
    the shaving cream is too expensive.

    Tough cookies. Don't want to deal with jail? Then don't kill people. Simple.

    http://www.news.com.au/world/double...mall-boring-menu/story-fndir2ev-1226992865373
     
  16. Bazinga

    Bazinga Well-Known Member

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    Thank you for your long and detailed answer, JCB. It is good to understand a bit more about how an appeal works. I think the prosecution used the words "most likely smothered" or something similar. To be specific what I'm wondering is this - Is the suggestion that Allison's body was in the Captiva on that night and that her body transferred blood onto the car interior necessary to be proven or be beyond reasonable doubt for the murder conviction? I don't think so. The fact proven is her blood was in the car, in an unusual location consistent with her body being in the "boot". That fact with other facts such as the age of the car, the toys placed in the boot add to a picture. Who knows I guess.
    I am going to take comfort that you thought an acquittal was likely but the jury found GBC guilty. Let's hope the CoA surprises you and keeps us all happy! Fingers crossed!!
     
  17. marlywings

    marlywings Former Member

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    Just a couple that came to mind when I read your post...

    July 9, 2014

    The 75-year-old Pakistani immigrant convicted in Brooklyn of beating his wife to death because she served him lentils instead of goat should get the minimum sentence, his lawyer argued Wednesday &#8212; because the lack of Pakistani food behind bars will be a hardship.

    &#8220;His inability to speak English and his inability to have Pakistani food will make his incarceration even more difficult than the average inmate,&#8221; defense attorney

    http://nypost.com/2014/07/09/man-who-killed-wife-over-dinner-prefers-death-to-prison-food/

    *******************************************

    There there's Milat...

    SERIAL killer Ivan Milat has staged a nine-day hunger strike after being refused permission to play Sony Playstation games in his cell at the state's toughest jail.

    http://www.news.com.au/national/iva...over-playstation/story-e6frfkvr-1226056097963
     
  18. marlywings

    marlywings Former Member

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    GBC's whiny appeals are somewhat similar to Sica's. All his appeals have failed.

    July 27, 2012

    Sica. 42, has appealed his convictions and sentence on 12-grounds and include claims the jury verdict was unreasonable and could not be supported by the evidence.

    Sica also claims the trial judge, Justice John Byrne, delivered an imbalanced summing up to the jury which favoured the prosecution

    http://www.couriermail.com.au/news/...f-singh-siblings/story-e6freoof-1226436515915

    **********************************

    September 2, 2013

    But the Court of Appeal ruled on Monday there was no error by the trial judge concerning the admission of evidence.

    The three appeal judges also did not accept that the trial judge&#8217;s refusal to make a no-jury order was grounds for an appeal.

    http://www.brisbanetimes.com.au/que...ourt-appeal-20130902-2szip.html#ixzz37omcftdm
     
  19. JCB

    JCB New Member

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    Either can happen, though it would be purely a guess on my part as to what the CoA would order if the appeal was successful.

    And not for a moment would I suggest that your interpretation was incorrect even though I personally happen to disagree.

    However if the CoA finds that jury was misdirected then GBC must be afforded a retrial at the very least if it is the opinion of the majority of the CoA that the misdirection amounted to a miscarriage of justice. Of course it's entirely possible that a jury on a retrial (if one was empaneled) would still find GBC guilty regardless.

    In my opinion yes, and evidently the defence also believes this to be the case (although it may well be that ultimately we are proven to be wrong). The Captiva evidence is peculiar without a doubt but it is also contentious and circumstantial as admitted by Fuller QC himself. If someone could have placed GBC either at Kholo Creek or en route then it would be difficult to argue that the Captiva evidence must be held to the higher standard but as it was presented as effectively stand alone evidence that GBC took Allison to the bridge, I think the CoA will take a good hard look at this. There are of course 3 other grounds of appeal which must be considered but I think ground 2 is the strongest of the 4 at this point in time.
     
  20. JCB

    JCB New Member

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    Respectfully disagree as all of Sica's grounds related to pre-trial orders and did not in any way relate to judicial direction or reasonableness of verdict (which by implication means that Sica's defence concede that on the evidence led, the jury was capable of coming to a verdict of guilty and they had no qualms with directions given to the jury). All 4 grounds in GBC's case relate to either the directions of Justice Byrne or whether or not the verdict was unsatisfactory or unsafe.

    http://archive.sclqld.org.au/qjudgment/2013/QCA13-247.pdf

    The live grounds of appeal against the convictions all concern decisions on pre-trial applications. None of them relate to the conduct of the trial, the summing up or the jury verdicts.
     

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