Pou had subjected Simmonds to a brutal beating that lasted 90 minutes then disposed of her fatally-injured and fractured body in a shallow grave at a rural property, not discovered until the following year, the jury was told.
In appeal submissions counsel Arthur Fairley cited aspects of the sentencing, a pre-trial ruling about propensity, and a remark made by the Crown prosecutor during his closing address.
But during the hearing, Fairley focussed primarily on Judge Gordon's failure to discharge the jury on day seven of the trial.
Fairley said the trial should have been aborted after a court crier told the judge of the jury foreperson's comment to him they had reached a verdict and wanted to know about majority verdicts as one juror was holding them back.
It could be inferred the comment was true because it came from the foreperson - not just a juror - and she was at court at 8.30am to relay it - well ahead of the 10am start time. It could also be inferred it was the murder charge she was talking about as there had been little evidence on the other charges at that stage.
What happened was so extraordinary none of the counsels involved or the judge - whose collective experience amounted to more than 1000 trials - had heard of it before, Fairley said.
Justice Gordon sent the jury away for the morning so the matter could be discussed in chambers. The foreperson was not called before the court for questioning or clarification.
Everyone was caught "on the hoof" trying to deal with it, Fairley said.
He wanted the trial aborted Justice Gordon chose to continue believing the problem could be cured by giving the jury a direction about the need to keep an open mind until all the evidence was heard.
But the direction she gave was too similar to the procedural one at the start of the trial, which the jury ignored, and she did not say why she was repeating it, Fairley said.
There was a risk jurors maintained their mindsets throughout the rest of the trial.
The Crown described what happened as an "irregularity" but it was a miscarriage of justice or a breach of fair trial rights, Fairley said.
What happened undermined a basic fundamental of our legal system – that the decision-making mind, be it a judge or a jury, needs to wait until all the evidence from both sides is heard, Fairley said.
In rebuttal, Crown counsel Zannah Johnston said Fairlie was asking the Appeal Court to speculate on the foreperson's comment, the truth of which was unknown.
Jurors often reached views in different stages of trials but those views could change as the trial progressed.
The foreperson's use of the word "verdict" might have been a casual lay person's way of relaying her thoughts about her own view. She might only have formed an impression the others agreed with her.
It was not known if her approach to the court crier was planned or just a casual comment made in passing while asking for more tea bags. No inference could be drawn, Johnston said.
The foreperson did not make any formal inquiry about majority verdicts, there was no written question to the judge, and no accompanying comments such as, "we've made up our minds, how do we get this to stop".
What the Appeal Court could be sure of was that a clear direction was given, the jury heard the remainder of the trial, and deliberated for a day. If it was unswayed by the judge's direction to keep an open mind it would have returned its verdicts much faster, Johnston said.
