In the wake of Justice Fullerton’s judgement (10/8/2018) that saw Gordon Wood’s claim for malicious prosecution against the State of NSW fail, Andrew L. Urban examines crucial parts of the judgement and finds them troubling.
It could be argued that Justice Fullerton’s judgement came as close as possible to a verdict for the plaintiff (Wood) without crossing the line to actually do so. Here is the argument for that view:
Par 1340 of the judgement summarises the reason for Justice Fullerton’s decision and thus is especially worthy of note:
“Ironically, it is the fact that Mr Tedeschi continues to have no insight into his impropriety as a prosecutor in material respects, or to accept that the trial miscarried because of his misconduct, that reinforces the conclusion that I have reached that malice is not proved. Throughout his evidence, Mr Tedeschi remained committed to his assessment of the strength of the evidence against the plaintiff for murder, and persistently showed himself unwilling or unable to accept any of the criticisms of his conduct as a prosecutor at the plaintiff’s trial or to accept that his approach to the assessment of A/Prof Cross’s reliability as an expert witness, both in preparation for trial and the way his evidence was adduced at trial, was flawed.”
One could be forgiven for taking this to mean that Tedeschi’s doubling down on his “impropriety” and his inability to accept that his approach was “flawed” prevented the judge willing to finding ‘malice’.
Presumably, then, his actions at trial were just plain wrong, unfair, unethical, improper and stubborn. What safeguards do the citizens have against instruments of the State in such cases? How do prosecutors avoid accountability and retain licence to practice in the face of “impropriety as a prosecutor in material respects”?
Perhaps Par 1332 of the judgement explains it:
“As a matter of law, malice will not be made out simply by evidence that reveals that a prosecutor is blind to his or her failings of judgment, or by a prosecutor failing to appreciate that he or she acted contrary to their ethical obligations, even to the extent that the impact of such failures is eloquent of a breach of professional standards or professional misconduct and productive of unfairness in the conduct of a trial for that reason.”
Some may argue that this judgement is an unnerving indication of the narrow confines of what might constitute a malicious prosecution. It sets the bar rather high.
As high as outlined in Par 1341:
“In order to be satisfied that Mr Tedeschi’s evidence in these proceedings exposes that his dominant purpose in prosecuting the plaintiff was malicious in the legal sense, I would need to be satisfied to a high level of confidence that he either gave deliberately dishonest evidence under cross-examination in order to conceal the fact that he knew at the time of the trial that the way he was conducting the proceedings as Crown Prosecutor was contrary to the standards of propriety by which he was bound (because he was self-consciously striving for a conviction at all costs), or that his evidence in these proceedings was so wholly untenable as to be unworthy of any credit, that his explanation should be disregarded, or given no weight for that reason.”
Evidently Justice Fullerton was not satisfied “to a high level of confidence” … where others may have been. These extracts are published in the hope of encouraging informed public discussion of the subject.
(Background: 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.)