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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.
I would have respectfully snipped but that takes soo long
My issue with your argument is that it seems centred on GBC being placed at Kholo Creek in relation to the appeal. I hope that i am correct as in my understanding the trial has delivered a verdict of guilty on the charge of murder?
Again IMOO there was little in terms of what the crown offerred that was related to Kholo creek. Maybe that is one of the reasons that the second charge of interfering with a corpse disappeared mid trial. My limited view is that there was sufficient circumstantial evidence to convict him on the murder charge, and as sentences are served concurrently there was little to be gained by the crown in pursuing GBC and/or others at Kholo Creek.
However, your reasoning related to certain points and I would like to dissect them one by one:
Nobody saw or heard GBC murdering Allison at the BC residence.
no nobody did, but the crown did not lead that anyone did, rather they provided certain facts (leaves in hair -for that a body would have to have been on the ground ) circumstantial evidence was dog barking and howling and others hearing screams and other noises apart from Ms Apps
- Nobody saw him place Allison in the Captiva.
no, but car doors were reported to have been slammed, the children recalled nothing having been in the Captiva the day before and yet items ready for someone to pick them up had been placed in the car, also Allison's rivulet (not a drop or smear) of blood was found in a very strange position - beneath the fold down back row seats in a six week old car
- Nobody saw GBC leave that night.
No
- Nobody saw him en route to Kholo Creek.
That is questionable as there were witnesses (not called) who saw two vehicles - one with their lights on and another with lights off in the area.
- Nobody saw him dispose of Allison's body at the scene.
No, however Allison's body was found with a jumper sound her neck and according to the autopsy report was found in the position that she was in very shortly after death. Also she was not thrown from the bridge according to expert witnesses, as she would have suffered broken bones or other injuries.
- No forensic evidence linking GBC to Kholo Creek was submitted.
No
- Nobody saw or heard him return home.
No
The above is just in relation to Kholo Creek, and just going though it I can see why the Crown did not pursue this part. The other circumstantial evidence is so damning by and for itself that there was no reason to. And as it was not part of the trial, it will not be able to play any part in the appeal process. As in my limited (non legal background) understanding, only the issues brought to a trial can be part of the appeal.