Gordon Wood appeal in shadow of prosecutorial malaise

Andrew L. Urban.

Gordon Wood’s appeal against his failed malicious prosecution bid last year begins in Sydney’s Supreme Court on Monday, November 18, 2019, in the shadow of a new book by former DPP Nicholas Cowdrey (Frank and Fearless, New South) in which Cowdrey refers to the Wood case and proposes that prosecutors are ‘supposed to push for convictions’.

Here in a nutshell, Cowdrey demonstrates a serious malaise in our legal system: prosecutors are NOT supposed to push for convictions. They are supposed to be officers of the court seeking the truth. That such a high profile former prosecutor has no insight into the error of this sentiment is disturbing.

Here is the context in which Cowdrey frames this sentiment, in his chapter on the Gordon Wood case, when he gets to the appeal against the murder conviction: “The Court of Criminal Appeal was convinced the prosecutor (Senior Crown Prosecutor Mark Tedeschi QC) had pushed far too hard for a conviction. It was also convinced that Associate Professor Cross, the expert witness who claimed there was no way Caroline could have jumped or dived to the place she was thought to have landed, had fought inappropriately for a conviction–and expert witnesses are supposed to be impartial. That might sound like a strange complaint about the prosecutor. Aren’t prosecutors supposed to push for convictions?”

And a little later in the chapter, Cowdrey contradicts his earlier statement, saying: ” A prosecutor’s principal role is to assist the court to arrive at the truth. It is never about winning at all costs.”

When Wood took his malicious prosecution to court against the State of NSW and prosecutor Mark Tedeschi QC, appeal court judge Elizabeth Fullerton also chided the prosecutor for “…his continuing inability or unwillingness to reflect upon the errors that have been revealed in his approach as a Crown Prosecutor and his continued failure to accept and acknowledge them, rather than impermissibly straining for a conviction” But she did not find it had been proven that the prosecution was malicious in the legal sense.

Wood’s appeal is scheduled to last three days.

* 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.

 

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19 Responses to Gordon Wood appeal in shadow of prosecutorial malaise

  1. Amanda says:

    There was a 50 minute interview with former DPP Nicholas Cowdrey ABC RN’s “Conversations” recently.  The link is:   https://www.abc.net.au/radio/programs/conversations/nicholas-cowdery/11710532 

  2. Rod says:

    Reply to comment of Insider. I suspect that you are looking at feet first jump speed results. They can be excluded since Caroline landed head first. Nevertheless, feet first jump speeds are of interest since they show how much dive speeds are reduced, and can be compared with measured jump speeds with a 5 m runup. The measured distance from the safety fence to the tip of the ledge was 5.0 m. (It is still 5.0m, as anyone can check. The appeal judges claimed it was 6 m, but they didn’t bother to check). However, a runner or jumper doesn’t normally start off with both feet together. One foot is usually well ahead of the other at the start of a sprint (as opposed to a marathon race). Also, it was a cold, dark night and there was no warm-up, whereas the dive and jump tests were conducted under ideal conditions at a swimming pool, with good athletes.

    • Insider says:

      So you think all the police cadets in your tests were good athletes? Please provide evidence. To give one example, the young woman who belly flopped into the pool in the video of your tests looked decidedly uncomfortable in her diving and jumping, and did not look at all fit, especially compared to Caroline.

      Compare with Caroline. She went to the gym regularly until a few weeks before her death when her physical problem began, she grew up with a swimming pool at home, she exercised regularly, used the treadmill regularly and had all the traits of a healthy reasonably fit young woman in her early twenties. In her job at the time of her death, she lugged quite a lot of equipment from her car to the markets at Parklea etc where she worked. She looked slim, fit and healthy. There’s no reason to diminish the memory of her by claiming anything else, is there?

      In reply to your first line: “you suspect…” …. do you prefer not to look at the Report and instead rely on suspicion and innuendo? Why not simply look up the info? My copy of the Report is a printed copy in another country from where I am now, so I alas cannot look it up until my travels are over.

  3. mbc says:

    Who is Godon’s legal team?

    • Another Peter says:

      Tom Molomby is the barrister at this appeal. Bruce McClintock from Melbourne was the barrister at the malicious prosecution suit. I don’t know who the other lawyers in his team are nowadays.

      Way back at the appeal that freed him, Tim Game was the barrister and Michael Bowe was the hard-working solicitor. The key person for that appeal was Gordon’s sister Jackie Schmidt. Jackie did a great job in the key role that lawyers usually don’t have enough time for – gathering facts and data, combing through the evidence and fact-checking. Michael Bowe was the solicitor at the original two trials too, and Winston Terracini was Wood’s barrister. Terracini’s record against Tedeschi is not good. Admittedly, all barristers have bad records when taking on Tedeschi, except for Graham Turnbull. In my spare time a few years ago, I compiled all sorts of numerical data about how certain judges and barristers influence the outcome of appeals in NSW. The results were not what I expected.

  4. Tim says:

    I could never see the plausibility of someone “spear-throwing” a victim to their death as was claimed in the Wood case.

    Such an achievement would need an incredible amount of strength, balance and control. And why resort to such a physically demanding (and dangerous) act when a mere push from the clifftop would give the same required result?

    If a body was a significant distance away from the cliff side, I thought it would be more likely to be the result of the victim taking a run-up and launching themselves out than in an unlikely feat of strength by a murderer.

    • Charles P says:

      Unless Carlone Byrne had a well above average athletic ability to accelerate to a speed of 16 km/hour over a run-up distance of about 4.5 meters then she didn’t commit suicide. The physics of the problem is governed by Newton’s Laws of motion.

      The following Forensic Science article from 2014 is worth a read as it states the errors made by the Appeal Court judges in the interpretation of the scientific evidence. It also states the errors made by the defence expert witness.

      “Misinterpretation of expert evidence in Wood v R”

      by Rod Cross

      Australian Journal of Forensic Sciences 
      Volume 46, 2014 – Issue 4

      • andrew says:

        But of course it’s rather irrelevant when there is no evidence that Gordon Wood or anyone else threw Caroline Byrne off the Gap. Prof Cross attempted to show that Wood COULD, but that is not the same thing.

        • Rod says:

          Andrew. Caroline landed 11.8 m out. The evidence for that is fully discussed in several reports. Either she jumped or dived or she was thrown. She landed head first in a crevice with no injuries to her shoulders. So she didn’t jump feet first since that would result in a feet first landing at high jump speeds. None of the subjects tested could dive fast enough and all but one were well above average in athletic ability. That evidence has been largely ignored by everyone.

          • andrew says:

            The point I make is not to dispute your conclusions about the physical possibilities but about failing to show the jury any evidence that Gordon Wood executed the act of throwing his girlfriend off the cliff that night.

          • Insider says:

            Rod – you should read Professor Cross’s reports which were presented at the trial. One of the young women in Professor Cross’s experiments did succeed in committing suicide with the 5.5m run-up. Someone involved in the prosecution cherry picked, removing that result. The expert at the concurrent Gilham trial cherry picked his carbon monoxide data. William McBride cherry picked his Debendox data. If you wonder how common this cherry picking of data is among scientists, look at this transcript of Jason Chin from Sydney Uni giving a Raising The Bar talk a few weeks ago: https://sydney.edu.au/content/dam/corporate/documents/about-us/community-partnerships/raising-the-bar-transcripts/2019/jason_chin.pdf.

            Look at the second half of page 4 of that link. This cherry picking style of data collection is common, incredibly common. Unbelievably common. The impact of this on criminal trials is yet another overlooked factor that can lead to miscarriages of justice.

            Or look at the video of that talk:
            https://soundcloud.com/raising-the-bar-sydney/jason-chin-can-we-put-an-end.

            My usage of the words “cherry picking” is not totally appropriate. I mean that the data presented in court is selected, not the total data.

            Rod – if you can access it, please have a close look at the relevant Report by Professor Cross. Observe the number of the young woman who succeeded in committing suicide with the (unrealistically short, as it turns out, when the crime scene was independently examined) 4.5m run-up restriction. Check the number of the young woman in her early thirties, significantly older than Caroline, but who had been a champion hurdler in her high school days. See how the numbers are different? They are not the same young woman. Yet that piece of data was excluded from Gordon Wood’s trial on the assumption that they were the same woman. Please check if you can, and let us know if you agree.

      • Tim says:

        Unless Carlone Byrne had a well above average athletic ability to accelerate to a speed of 16 km/hour over a run-up distance of about 4.5 meters then she didn’t commit suicide.

        And it is more plausible that someone could run an jump much further than someone could be thrown.

        • Charles P says:

          Tim,

          What you say is intuitive but is it supported by the relevant real-world experimental data?

          As pointed out by Rod, Caroline landed head first. That means that either she dived off (possibly after a run-up) or she was thrown off such that her head was falling ahead of her torso. Rod also pointed out that “she didn’t jump feet first since that would result in a feet first landing at high jump speeds.” There was no injury to her legs or feet that would have resulted had she landed feet first. This is significant.

          Prof Cross’ eperiments with female police officers, all of whom were well above average athletic ability, have shown that none of them could dive off after a run-up at the required speed of 4.5 m/s (16.2 km/hr). It was found that the test subjects were about 0.5 m/s slower in diving off after a run-up than jumping off after a run-up over the same run-up distance.

          However, it was also found that a strong man (someone who could bench-press at least 100 kg) could throw a woman of Caroline’s weight at the sufficient speed of 4.5 m/sec but only if he threw her in a particular way that resembled a spear-throw. The prosecution had a witness testify that Gordon had regular workouts at a gym and was bench-pressing 100 kg.

          Caroline was a model not an athlete. There was no evidence to suggest that she would have had significantly above average athletic ability. It is thus highly unlikely that she would have had the necessary athletic ability to reach the necessary take-off dive speed of 4.5 m/sec (16.2 km/hr) to land head first about 11.8 m away from the base of the cliff.

          The expert defence witness at the appeal used two test subjects whose athletic ability was superior to that of Prof Cross’ test subjects. Prof Cross determined that the acceleration rate of one of these test subjects was comparable to that of a former Olympic 100 m sprint champion (Flo-Jo). The defence expert also had his subjects take a jump with feet-first rather than take a dive after the run-up. This was an incorrect test. Had he asked them to take a dive after a run-up then neither would have reached the necessary take-off speed of 4.5 m/sec. Experiments conducted by Prof Cross have shown that when a runner adjusts their body for a dive after taking a run-up that there is a loss of about 0.5 m/s in horizontal take-off speed.

          The above mentioned experimental work by Prof Cross provided conclusive experimental data that Caroline couldn’t have dived off at the required take-off speed to reach 11.8 meters away from the base of the cliff, but that a man who could bench-press at least 100 kg could have thrown Caroline in a spear-throw manner at or above the required speed of 16.2 km/hr. This scientific expert evidence proves beyond reasonable doubt that Caroline didn’t commit suicide.

  5. Peter says:

    In 1991 when freeing Tim Anderson, Justice Murray Gleeson described Mark Tedeschi’s prosecutory style: “there was an inappropriate and unfair attempt to persuade the jury to draw inferences of fact, and accept argumentative suggestions, that were not open on the evidence, and in some contrary to the evidence.”

  6. Tim says:

    Nicholas Cowdrey, the man who made a public fool of himself by making sleazy comments about Keli Lane in a recent ABC series about the Lane case.

    The fact that Tedeschi was involved in both the Wood and Lane cases should give cause for concern. In both cases Tedeschi introduced imaginative, spurious scenarios as “evidence” and got away with it.

  7. Peter says:

    The NSW Prosecution Guidelines can be found at
    https://www.odpp.nsw.gov.au/sites/default/files/prosecution-guidelines.pdf.

    Sections 2 and 3 are the relevant ones.

  8. Peter says:

    If anyone wants to go to the appeal, it’s scheduled to be in Court 12A on the 12th floor of the Queens Square building in Sydney at 10:15am on Monday 18 November, continuing on Tuesday 19 November at 10:15am. The third day might not take place. The Judges are Justice Fabian Gleeson, Justice Anthony Payne and Acting Justice Carolyn Simpson.

    Brian – the overturned Tedeschi prosecutions so far include Tim Anderson (Hilton bombing), Gordon Wood and to some extent Jeff Gilham (Tedeschi prosecuted only the first trial). The Tedeschi prosecutions that in my opinion should be overturned include Keli Lane, Kathleen Folbigg, Simon Gittany, Robert Xie, Manju Sam and Phuong Ngo. I might have missed a few others. Ivan Milat is not one of the ones I missed, in my opinion.

  9. Robin Bowles says:

    Mmmm. I believe there is more to the Gordon Wood case than has been published. I spent many hours with Caroline’s family, friends and employers, with the plan to write a book. I abandoned that plan when Caroline’s father, who had promised me full access to all his journals from when her body was found, withdrew his co-operation. Maybe he now wishes he hadn’t! Also interviewed Rene Rivkin, for whom Wood drove and did other odd jobs. Sometimes these cases are not all they seem.

  10. Brian Johnston says:

    Gordon Wood’s lawyer pushing for malicious prosecution was an idiotic move. To win the case he had to prove malicious. No easy task. A simple wrongful prosecution would have been hard enough and makes more sense.
    Tedeschi has to be taken down.
    I believe Ivan Milat to be innocent. Simple to work out. Tedeschi again.
    There are many others which are questionable

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