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