Mr Russell Flint's new defence 'If, that is what happened, how does that make her death unlawful? Nobody would have killed her, murdered her. It would have been a terrible accident' is extraordinary, as many have commented. Do the lawyers present expect the judge to point out to the jury that they are not being asked to consider this?
Also, mrjitty, please could you explain what you said about the prosecution having to prove IS is guilty to the evidential standard but not beyond all reasonable doubt - I thought it was the latter. What exactly does the evidential standard mean? I thought that was for civil cases. But as will be apparent, I'm not a lawyer.
Sure. Let's walk thru it.
We have to differentiate between proving facts at trial (evidence) and proving guilt beyond reasonable doubt (BARD).
Thanks to the presumption of innocence, the burden of proof is on the prosecution.
First up this means the prosecution must prove each and every element of the offence ... Mens Rea (jntention) plus Actus Reus (physical elements)
This is much more nuts and bolts than you may realise.
For example the prosecution must prove someone has been killed unlawfully (i.e. Helen as stated in the indictment). This is not to BARD standard. Rather the jury must ask itself what facts it regards as established. Though this question is not at issue at trial, it must nevertheless be shown.
So the prosecution may prove this point by evidence from the coroner and other witnesses. For example consider the following facts which were surely proved at trial:
A dead body was recovered + from the cess pit + it was identified as Helen Bailey + her dog was also there + the lid was on the cess pit etc etc
We don't apply BARD to these individually.
Once it accepts the above, the jury is invited to infer (or conclude) a further fact... namely that this was an unlawful killing
This inference is clearly established IMO. The fact that the body was hidden implies murder. Furthermore, it is the defences own case that Helen was murdered. So now we have evidence plus inferences. The Jury just asks itself what has been proven.
So next question - was there intention to murder? In my view this question is not at issue in the trial. Circumstances imply murder. Yes, theoretically Helen could have died by accident and IS hid her in a panic but the defence did not introduce any evidence to that end. So IMO this idea should be dismissed. It is speculation not a real possibility.
So really the only issue at trial is was the murder committed by IS?
If we discount Nick and Joe, then obviously IS is the only other person who could have done it. And he also lied with two different versions.
All of the above is facts plus inferences.
Now with all of that said, the Jury must stand back and consider the BARD standard. having regard to all the facts established and inferences drawn.
In light of the evidence, is there any reasonable possibility IS did not murder Helen?
In my day this was described like a stranded rope. Each strand is a fact. An individual strand may break but the rope holds.
Now where jury analysis frequently goes wrong is the defence invites the jury to nitpick facts in isolation which is what defence counsel is doing.
"We can't rule out that Helen died by accident!"
This statement is logically true, but it is not a reasonable possibility having regard to all the evidence.
But if you can trick a jury into speculating about individual facts - it gets tough for the prosecution!
