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.