What a lot of people forget or simply don't understand (understandable given the media hysteria) is that the burden of proving intent rests entirely with the prosecution, there is no obligation on the part of the defence to put forward any alternative theories. It is then left entirely to the jury to decide whether or not that they are satisfied that the ONLY reasonable inference that can be drawn from the evidence presented at trial.
The fact that the defence did not put forward an accidental death theory at trial means nothing, the jury still has the responsibility to consider any and all possible alternatives that may be consistent with the evidence.
Yes, Gerard lied (probably many times) but did the prosecution satisfactorily prove beyond reasonable doubt that this could NOT have been the result of an accident and subsequent panic? You could put forward the argument that a person who accidentally killed another would not go to such lengths to conceal the truth but the fact is that it happens more often than you might imagine, I can recall several QLD cases off the top of my head.
Bottom line: in the absence of any new evidence, if the appeal court cannot show that the jury was misdirected, then it should not be possible to overturn a jury verdict. Or put it the other way around, when a jury verdict is overturned, it should only be on the basis that new evidence has been presented, or the appeal court can show how the jury was misdirected.
Otherwise, the jury verdict should be upheld, to show that the legal system can be upheld.
While the rejection of the no case submission was not a ground of appeal, the unsafe and unsatisfactory verdict ground was so similar as to be virtually the same thing. Thus (in my opinion) the QCA tacitly conceded that the no case submission should have been successful as an inference could be drawn that while Gerard was responsible for killing Allison, he did so without the essential element of intent. Without explicitly saying it was the case, the QCA have inferred that Justice Byrne erred and the jury should never have been given the opportunity to convict Gerard of murder. In saying that, it's hard to be critical of Justice Byrne as he had literally a matter of minutes in which to make a decision whereas the QCA had the benefit of several months to mull over the evidence.
I also just have a general question for those who are seeking change to the law (to paraphrase), what is it that you want to change?
Are you wanting to remove intent as an element for murder? Something that has existed for hundreds of years in pretty much every developed legal system in the world?
Are you wanting to abolish the appeals process for jury decisions? Again something that is integral to the Westminster System (and others) that protects against error, negligence and corruption within our legal system?
Are you wanting an increase in penalty for those who have lied throughout the judicial process? Effectively this already happens as the normal discount for an early plea is not available for those who proceed to trial and fail to show any remorse.
Are you proposing a different (lesser) standard of proof for dishonest defendants?
I greatly admire those with the willingness to band together and effect change but I'm struggling to understand what change is being sought in this instance, every possible scenario I can come up with is either already in place or erodes all of our well established legal protections (and will flow down to all of the lesser offences, not just unlawful deaths).
This recent decision is not one that is out of the box, it happens many times every single year in QLD (unsafe/unsatisfactory). It is just the case that Allison's death and Gerard's subsequent trial/appeal has attracted more attention than most of the other homicide cases combined. This isn't an example of a systemic failing, it's just that nobody seemed to care until it happened to an attractive mother from an affluent suburb and I guess that troubles me somewhat.
