JCB in your scepticism with regard to the validity of ‘this retired NSW Judge’s’ comments, sounds like you are saying David Murray has fabricated the claims of the Judge …… Yes/No?
Hard hitting question there Couldbe! Re-reading my post I can understand that it could be interpreted that way but that was not my intention. Could David have fabricated some or all of the story? Absolutely, but I don't believe this to be the case.
As mentioned, my first issue is the use of an anonymous source. Many reputable publications around the world do not permit anonymous sources to be quoted at all but if they do, it's almost exclusively due to 1 of 2 reasons -
1. Risk of physical harm to the source, witness to a crime for example.
2. Risk of professional sanctions, whistleblowers etc.
Occasionally you'll see a third category (which loosely ties in with number 2 above) where a person discloses information which they did not have authority to. Sometimes the information can be accurate but you have to question the character of someone who shows a complete disregard of the trust placed in them by their employer. Then you have the tabloid "sources", usually related to celebrity gossip where "a source close to the couple confirmed ****" which are virtually never true and almost always fabricated (by either the journalist or the "source").
Anyway, the 2 legitimate reasons for anonymity do not apply in this case and you have to wonder why David went ahead with the article (I see it has since been pulled from the Daily Telegraph site, but perhaps unsurprisingly it remains on the CM site). With no way to verify the credentials of the quoted person I have great difficulty placing any weight on the article's contents.
There are a number of possibilities in my mind...
1. The source has been dreadfully misquoted.
2. The source has lied about their credentials and experience.
3. The source is apparently of advanced age, perhaps their understanding of current case law is limited or are suffering from some kind of memory impairment.
We had a case not so long ago where we had a graduate undertaking their PLT (Practical Legal Training) with us, which is a requirement prior to being admitted. A well known journalist contacted them (outside of work) and their opinion was plastered all over the front page the next day and while the firm was not mentioned directly in the article, it said something along the lines of "this was confirmed by a high profile criminal law firm". Yet they had contacted someone who had 1 semester of criminal law under their belt, totally outside of the professional environment, who's comments were certainly not endorsed by the firm and who wasn't even admitted to practice law! We had previously assisted this journalist but needless to say that relationship no longer exists... So you'll have to forgive me if my opinion of journalists reporting on criminal matters has deteriorated somewhat!
The source also freely admits having not read the trial transcript yet has no issue making disparaging comments about the QCA. One would hope that a former Supreme Court judge would at least take a glance at the transcript before making public comment that may well result in public confidence in the judiciary being eroded. Disgustingly unprofessional, regardless of whether or not the source is retired.
Not sure where you stand on the guilt of Baden Clay ….. be he guilty of Murder, Manslaughter or whether you might think he is innocent of any involvement at all in the death of Allison.
My opinion FWIW is that Gerard is probably responsible for Allison's death, but I don't think I could have convicted him of either manslaughter or murder. During deliberations another juror may have brought up something that changed my opinion but having had the benefit of reading hundreds of differing opinions and theories, I am yet to be convinced otherwise.
Honestly I think it was a weird trial from start to finish, with errors from pretty much everyone involved.
I think the defence erred in making an (ultimately successful) application to suppress coronial evidence in relation to a subdural hemorrhage observed during Allison's autopsy. This not only would have given considerable weight to the altercation theory that ultimately the QCA relied on, but it would have very much weakened the asphyxiation theory that jury seems to have accepted. I also wonder why Gerrard gave evidence, there was never any chance that he could have added anything positive to his defence.
I think the prosecution erred in failing to give sufficient coverage to the element of intent, with the evidence available I think they did an admirable job of attempting to prove that Gerard was responsible for Allison's death (successfully in the end) but evidence relating to intent was severely deficient. I also have a moral objection to leading a case based on likely smothering when evidence existed that Allison's death may well have been the result of a subdural hemorrhage (the coroner noted that the injury was capable of causing death). I understand that this evidence was ultimately excluded on defence application but both the defence and prosecution have a legal duty to assist the court in arriving at the truth. I understand that the Crown Prosecutor (you'll have to forgive me, I can't recall who it was!) did not have authority to discontinue the prosecution on this basis but I'm morally uncomfortable with a prosecution and subsequent conviction primarily based on a theoretical cause of death when (admittedly excluded) evidence suggested that the cause of death may well have been something entirely different and was potentially more consistent with manslaughter as opposed to murder.
By implication, Justice Byrne erred in not allowing the defence no case application.
The jury erred in disregarding Justice Byrne's instructions and seeking outside assistance on how to deliberate.
I think it was a bit of a shambles all round unfortunately and from a professional perspective, I'm not at all comfortable with the whole process.
