By Andrew L. Urban
Although Justice Fullerton offers serious criticisms of now retired Senior prosecutor Mark Tedeschi QC’s ‘disingenuous’ behaviour at the 2012 trial, and the reasons for her decision at 500 pages make up the equivalent of a book, none of that will satisfy either Gordon Wood nor any of the critics of her decision to deliver a verdict in favour of the defendants, the State of NSW. Wood was hoping his malicious prosecution suit would further vindicate his successful appeal against his murder conviction. To complete the catastrophe for Wood, he has to pay all costs.
At 3.55pm on Friday, August 10, 2018, Justice Fullerton swept into Court 9A in Sydney’s Supreme Court 25 minutes late, 17 months after the trial, and was met with a public gallery full of media (ABC serving the TV pool) and interested observers, including members of the police force. She read out a summary of her reasons and in around 15 minutes, set off what will be one of the most talked about judgements in Australian legal history.
Fullerton J found that neither Det Insp Jacobs (who arrested Wood) nor Assoc Professor Cross (expert witness) were ‘prosecutors’ for the purposes of the suit. Tedeschi QC was found to be a prosecutor in that sense, which was not a matter in dispute. But despite her criticisms of his conduct of the case, she found he had not acted ‘maliciously and without probable cause’ and thus the plaintiff failed to prove his case to her satisfaction.
But Tedeschi QC’s conduct demonstrated gross unfairness and his inability to see, even now, that he breached his obligations were some of the comments from Fullerton J.
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.
[Editor’s note: a more comprehensive report will be published at a later time.]