By Andrew L. Urban.
Gordon Wood is suing the State of NSW and the DPP for malicious prosecution. The trial was held in March 2017, before Justice Elizabeth Fullerton. Judgement is still awaited at time of writing (February 17, 2018)
Gordon Wood was convicted in 2008 of the murder of Caroline Byrne, whose body was found early morning on June 8, 1995, on the rocks at The Gap, a notorious suicide spot on Sydney’s Eastern coast. In 2012 the Court of Criminal Appeal set aside his conviction and entered a verdict of acquittal. The Chief Justice made it clear in his judgement that even the most basic elements of the case had failed to be established. “I am not persuaded that Wood was at The Gap at the relevant time.” He concluded that the verdict of the jury could not be supported having regard to the evidence.
The main witnesses for the prosecution were the investigator, Detective Inspector Jacob, and the expert witness, Assoc. Professor Rod Cross. They had worked closely with each other, and, according to the Chief Justice, they had presented evidence which was either inadmissible or unreliable.
The quality of the investigation was a particular concern. Because it was thought to be a suicide, the police took no photographs of the scene at the time of the death and the spot where the body was located was not recorded at that time. Subsequently, the precise location of take-off and landing points was to become the central feature of the case.
MALICIOUS PROSECUTION TRIAL:
Acting for Gordon Wood: Barry McClintock SC. Acting for State of NSW: Peter Neill SC.
An extract from my notes taken at the trial.
On this the last day of examining prosecutor Mark Tedeschi QC, McClintock made a number of raids on Tedeschi’s behaviour at the trial, concentrating on the duties Tedeschi allegedly failed as a prosecutor.
“You failed in your duty to alert the jury to the problems with your case. Your duty is not to chase convictions but to present your case fairly. You assumed my client was guilty and set out to prove that.”
Of the various aspects raised by McClintock, a couple stand out: A witness who lived near The Gap had given evidence that he had seen a tall man generally fitting the description of Gordon Wood and a woman generally fitting the description of Caroline Byrne, together with a second, shorter man, in the evening of her death, walking and talking in the street in the vicinity of the pub near his flat. He could not see the woman’s face, however. She was sitting hunched on the kerb, had dark hair and she was slurring and aggressive. McClintock pointed out that there was no alcohol found in Byrne’s blood.
Tedeschi admitted that this was not a credible identification of Byrne; “it may have been inaccurate”. The witness had come forward in 1998 after seeing the TV program, Witness, which featured Gordon Wood and had a photo of Caroline Byrne. “The witness was corrupted by the Witness program,” said McClintock. “It could well have been a completely different group of people,” on that night in June 1995, after which Byrne’s body was found on the rocks below The Gap.
A little later, McClintock produced medical documents that referred to Byrne’s depression and a previous self harm episode. Her depression was an issue at trial, and Tedeschi agreed, saying, “It was incumbent on the Crown to disprove suicide.” The documents were not led in evidence at the trial, Tedeschi claims, because he felt the evidence of Byrne’s father about her mental state was more accurate and reliable. The Judge asked Tedeschi to clarify whether he had made a conscious decision to not present the documents as a matter of comparison with the father’s testimony. Tedeschi concurred and said he remained of the view that it wasn’t for him to present the documents. He said the defence also had those documents if they wanted to bring up the matter. McClintock rebuked him: “The Crown prosecutor cannot wait for the defence to put his case…”
McClintock’s last words to Tedeschi were blunt: “I put it to you that whatever purpose you had did not serve the purpose of justice.”
McClintock referred to the infamous 50 rhetorical questions Tedeschi put to the jury in his closing address at the original 2008 trial, which he was disallowed by the judge to hand out in hard copy but had to read. Tedeschi had been reprimanded about this at the appeal. McClintock suggested to Tedeschi that this was highly improper (prejudicial) conduct. When asked by Judge Fullerton if he now has ceased practicing or advocating this practice, Tedeschi said he has.
Extracts from the transcript of the judgement of the Court of Criminal Appeal, 2012, relating to the 50 questions:
Question 23 was: “How would anybody, athletic or not, do a running dive from the top of The Gap in almost total darkness and on uneven ground into either hole A or hole B?” This question reversed the onus of proof by calling for an explanation from the applicant. It was for the prosecutor to exclude the possibility that Ms Byrne could have dived from the top of the Gap to either hole A or hole B (or any other point), not for the applicant to show that anybody, athletic or not, could do this.
[ALU note: another question thus arises: How would anybody, athletic or not, run along carrying a 57 kilo woman above head height, at top of The Gap in almost total darkness and on uneven ground to throw her …. ? We may also ask whether it is reasonable to assume – as the prosecution did – that Byrne was thrown from the point on The Gap that was deemed too far for her to have leapt the distance. There is no evidence to support that view. She may have jumped from a different part of The Gap . . .]
Several questions invited the jury to speculate. Question 18 was: “Why did Caroline purchase some petrol and a Freddo frog and get $50 out of the bank between 3 and 4 pm on the 7th?” The judge said “I am satisfied that this question was unfair to the applicant. The question could only be answered by the deceased. The answer had already been suggested earlier in the address although it had no basis in the evidence. The prosecutor had said: “We submit that a depressed person intending to commit suicide would not have purchased a Freddo frog, or petrol or taken $50 out of the bank.” Professor Robert Goldney, a psychiatrist and an expert in depression and suicide, was not cross-examined about this. He gave evidence that people do not always exhibit symptoms of sadness or depression before they attempt to commit suicide. The submission was arguably intended to influence the jury on a key issue in the trial, namely Ms Byrne’s depression in the days leading up to her death.
Tedeschi’s rhetorical questions 5 to 9:
5: Was the accused expecting massive bonuses from Rene Rivkin; and, if so, when and after what deal had been done?
6: Why was it that the accused’s employment with Rene Rivkin was under such a threat in about March 1995 and what was the plan that he devised to get around this?
7: If the accused had been advising people to buy Offset Alpine Printing Company shares at a time when he knew that the price was going to massively increase, was this insider trading information? If so, had he disclosed such insider trading information to Caroline and Tony Byrne and, indeed, to others?
8: If the ASC inquiry was important enough to cause Rene Rivkin to go on a three- week overseas trip to speak to bankers, was the accused under any pressure at being called before the inquiry on Tuesday, 6 June?
9: Was Caroline concerned about Rene Rivkin’s intentions towards the accused? And did those concerns heighten during the overseas trip?
“To my mind (the Judge wrote) these questions invited speculation about the actions of the applicant and Rivkin and were unreasonably prejudicial to the applicant. The prosecutor unfairly invited the jury to be suspicious of the applicant’s dealings with Rivkin in a manner which was clearly intended to smear his character.” The judge ruled that the connection that the Crown contended for between the ASC inquiry and the fire at the Offset Alpine factory was speculative and directed the jury to this effect. There was no reference to the 50 questions in this direction. “The applicant was never charged with insider trading and there was no evidence to support such charges.”