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 probably 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.]
A successful ‘malicious prosecution’ claim for damages seems to require that:
-the proceedings are shown to have been begun by the respondent, and that
-the proceedings must have been terminated in the plaintiff’s favour, and
-it must be demonstrated that the prosecution was commenced without reasonable & probable cause, and
-it must established that malice was present in bringing the prosecution and
-the plaintiff must show actual damage.
Malicious prosecution is an ‘intentional tort’. [a ‘tort’ is a wrong against a person seen from the civil (as opposed to the criminal) standpoint. An assault by a person is a crime which should result in a criminal prosecution, while for the person being assaulted a tort may have been occasioned (i.e. a wrongdoing experienced through the actions of another) and such a tort may allow for a civil claim for damages against the ‘wrongdoer’.
Some of my reading suggested that the person/s responsible for a malicious prosecution might be widened to include the one/those who have wrongfully set the law in motion and not simply the prosecutor who commences the action. In Hore-Lacy, Dyson — “Malicious Prosecution To Sue Or Not To Sue?” [ http://classic.austlii.edu.au/au/journals/PrecedentAULA/2015/57.html#fnB8 ], there is a discussion on the circumstances in which an informant can be viewed as a malicious prosecutor and it seems (from the material presented in that discussion) that police can also be included – at least in terms of ‘malicious arrest’. However, I’ve read that in Woods’ failed ‘malicious prosecution’ case (now under appeal):
“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”.
[ https://wrongfulconvictionsreport.org/2018/08/10/gordon-wood-loses-malicious-claim/ ]
I haven’t read Justice Fullerton’s decision, perhaps I should. Ah, here it is…
It seems that Professor Cross was able to be ruled outside the prosecutorial net because (in the words of Fullerton J at para 564):
“I am driven to the conclusion that his failure to conform with the standards expected of him as an expert witness are not explained by his mendacity or his intention to deliberately and dishonestly mislead Mr Tedeschi, but by his hubris.”
There seems to have been technical legal argument underlying this conclusion: I hope I’m not misrepresenting it by saying that via the principle of vicariousness-of-’the-informant’, (the expert witness) Cross was accepted by the judge as excluded from being technically/legally held to be a ‘prosecutor’, though if he been judged to have been dishonest in his report(s), he may have been so included in the tort action.
See: (Commonwealth Life Insurance Society Ltd v Brain)
In Brain […] Dixon J stated at 379 that, “no responsibility is incurred by one who confines himself to bringing before some proper authority information which he does not disbelieve”.
That leaves Det Inspector Jacob: Initial remarks were (I think) that it was not Jacob’s decision whether or not to send the case to trial and his actions to extradite Cross from the U.K.were not of his own initiative and came some 2 (?) years later on. Jacob also seems to have been mixed in by Fullerton J with the considerations regarding Professor Cross. [see: para 589 and the remarks (about Cross’s honesty/hubris) regarding mala fides and dishonesty.]
Regarding a second submission/plank of material put to Fullerton J dealing (again?) with excluding Jacob from prosecutorial status on the basis of not being dishonest, finally (para 909) I read (relating to Jacob’s ‘Sufficiency of Evidence Report’) that having considered the evidence that Jacob had forwarded to Tedeschi ( and the submission that this evidence contained … ‘displacements, “corruption” i.e. falsities?) … Fullerton J concluded that Jacob had made a “fair summary” of that evidence and that he hadn’t acted dishonestly in his dealilngs with Tedeschi.
Intentionality seems possibly to be a necessary element for a tort, though negligence is mentioned in one of the sections of the following article (recklessness could be included along with negligence, but I’m not sure):
“Civil Trials Bench Book – Particular proceedings”
[This last link is quite good – it contains mention of the failed Woods ‘malicious prosecution’ action (which decision is now under appeal – the judges having reserved their decisions).]