Speculation undesirable (and impermissible) prosecutorial tool

Andrew L. Urban

Society does not want prosecutors to win convictions in circumstantial cases based on speculation. It is also impermissible. If it weren’t for professional immunity, the practice would cease. 

The Crown’s circumstantial case against Robert Xie relied heavily on speculation supported by unreliable and flimsy testimony from a criminal in custody working as a snitch for his own benefit. Xie was convicted of the brutal multiple murder of five members of his wife’s family as a consequence. The Crown relied on the snitch’s testimony to negate Xie’s alibi. The Crown also speculated about the time of death of the victims. There was no direct evidence against Xie.

The verdict was delivered at the fourth trial, after the third trial ended in a hung jury. By then, Xie’s resources had been depleted. Former prosecutor now defence barrister Margaret Cunneen SC argues that the accused should not have to pay the costs of litigation after a hung jury; the state should pay. “It’s not their fault the jury couldn’t deliver a verdict,” she says.

Professional immunity protects prosecutors from potential consequences of the unethical practice of using speculation to poison the jury’s mind. Some judges are alert to the danger; not all.

In Xie’s fourth and ultimate trial, the trial judge, Justice Elizabeth Fullerton, failed to challenge the prosecution’s speculation that all the victims were killed after 2am – which is the timeframe that the prosecution claimed, without evidence. Xie’s alibi covered that time frame.

For another example, the judge in the murder trial of Sue Neill-Fraser, Alan Blow (now Chief Justice of Tasmania) reinforced the prosecutor’s speculation about a hypothetical murder weapon – a wrench – several times in his summing up:

Transcript p1542-1543: So let’s take the example of hitting a man on the head with a wrench. If an assailant who has no wish to kill the victim hits the victim on the head with a wrench very hard you might think that that’s intended – you might be satisfied beyond reasonable doubt that that’s intended to cause bodily harm and that that’s the sort of bodily harm that’s likely to cause death.

So if an assailant hits someone on the head with a wrench, for example, and if that sort of bodily harm that’s intended, a head injury caused with a wrench, is something that could well cause death and the assailant knows that that’s the sort of bodily harm that could well cause death then that’s murder. For example, if the assailant thinks, ‘I don’t care whether he dies or not, I’m so angry with him I’m going to hit him on the head with this wrench and that’ll really hurt him’, then that can amount to murder.

There was no wrench presented in evidence. Indeed, there was no body on which injuries could be examined, yet the prosecutor even speculated about what injuries the victim may have had. This circumstantial case even features speculation that Neil-Fraser was at the crime scene at the relevant time.

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. Cross had worked closely with Jacob and the DPP’s office to show that Wood was capable of throwing Byrne over the cliff, in ‘a spear throw’. Whether or not his experiments proved this or not (I wasn’t convinced) it did not prove that he did. At the appeal the bench ruled that this was impermissible speculation. But of course by then, Wood had been convicted and jailed. And was paying for the appeal from already reduced resources.

Mark Tedeschi QC

When Wood sued for malicious prosecution, Justice Elizabeth Fullerton reprimanded prosecutor (now in private practice) Mark Tedeschi QC for “straining impermissibly for a conviction”.

An observer with intimate knowledge of the Wood case, who wishes to remain anonymous, has provided the following note: “Someone in the Gordon Wood case made an extraordinary error which strikes me as malicious by changing the date of a 2003 photo (of the Gap) to 1995. The vegetation difference changed the evidence in favour of the prosecution.“Could that be accidental? Surely not. Malicious? I think so. Justice Fullerton in about 500 pages of judgement seems to omit the most heinous or malicious things done to Gordon Wood, such as that example.  I do not think it matters who did the malicious date change – someone did, so the State of NSW maliciously prosecuted Wood.

“By erroneously dividing the tort into individuals and treating each individual as a separate entity, I think she has found a clever but wrong way to let the State of NSW escape its responsibilities in this case. Sure, the definition of malice in NSW law might allow her to rule against Gordon Wood, but she could equally well have concluded that Tedeschi is so experienced that malice was more likely than a series of unknowing almost innocent mistakes by our most esteemed and experienced prosecutor.”

Speculation in trials has bad consequences.

For more information on these cases, please see our various articles by choosing from the menu on the right.






This entry was posted in Case 01 Sue Neill-Fraser, Case 02 Henry Keogh, Case 11 Robert Xie, General articles. Bookmark the permalink.

17 Responses to Speculation undesirable (and impermissible) prosecutorial tool

  1. Fiona Peate says:

    It is of great concern that the police & our courts continue to accept the word of a person with criminal history & pending further charges over that of someone with absolutely NO criminal record. In Sue Neill-Fraser’s case probably not even a speeding ticket.

  2. Owen allen says:

    Apparently main stream media, via television, ( dont know channel, but just attempted to find out who and when ) are going to report on Port Arthur.
    Main stream media have only repeated what they have been told to say, and no media interviewed Andrew McGregor, that I know of, and Andrew is not a nutter.
    What is going on in Australia? Innocent Grandmother 12 years locked up, no deceased body found, no hard evidence.
    Australia needs a political reformation of real leaders to change the Eureka Stockade way of thinking of Australian Authority.

    • Robert Greenshields says:

      G’day Owen, I read your posts with interest as you portray to me the image of an individual who is more than willing to confront injustice, along with the inevitable repercussions of your undoubted passion.
      Australia certainly does need to be realigned away from the comfortable, conforming, status quo of yesteryears standards and considered righteous moral values. Politically the concept was endorsed by a strong margin in 1972, but international controlling influences manipulated the then influential leaders of our national population, (then less than 14 million), captains of industry and others, and since that era, we have actually, nationally been ground down academically, industrially, and morally. The spirit of Eureka is still dynamic, I concur, though minimised I believe, because of selective influential educational activities, that have dismantled the broader communal magnanimous aspect in favour of individualism, and centric valued aspirations and personal endeavours.
      The criminality of the the original uncontrollable power group, “The Rum Corps”, and the incredible, probably insane, John Macarthur, was followed by instigated opposition at the “Castle Hill Rebellion”, aspects of early bushranging , “Red Ribbon Day” at Bendigo, “Eureka” at Ballarat, and the attempt to establish the “North Eastern Victoria Republic” by Edward Kelly and supporters at Glenrowan in 1880. It takes an unbelievable effort to remain steadfast, and resolutely confront institutionalised, generational bred, compliance demanding complicitous cultures, and every individual in every Australian state and territory of adult age would be aware of the attempts and practices to rewrite history in a fashion that desensitises truth, honesty, and amorality.
      A Coroners hearing, active in NW NSW at present, adequately confirms the desperate need for a national cultural change of direction by officialdom and authorities, but sadly, while willing under skilled, and under educated opportunists and cowards, seek the easy way through lifes rigors, there will always be a narcissistic element that thinks they are doing enough to be seen to be doing a job.
      Maintain the faith Owen, and Sue Neill Fraser too.

    • Robert Greenshields says:

      …and Owen, the words of Henry Lawson in 1891 still ring true.
      “So we must fly a rebel flag, as others did before us, and we must sing a rebel song, and join in rebel chorus.
      We’ll make the tyrants feel the sting, O’those that they would throttle; they needn’t say the fault is ours, if blood should stain the wattle.

  3. Owen allen says:

    Hey guys and gals; what is my purpose, I propose to you.
    14 years in Tasmania; the corruption is beyond all reasonable doubt.

  4. Owen allen says:

    [Edited for relevance]
    Australia will never have a Criminal Case Review Commission;
    Without serious hardcore realists for Justice which may come from ??
    I say this because; a Criminal Case Review Commission will want to know the TRUTH at Port Arthur Massacre, and so we should know; but it was covered up with silenced media with DA notice truth is a figment of our imagination.
    I saw video of the blond wig shooter. I heard Bryant on the phone to cops, and shots were being fired by some one else. I was a neighbour of Wendy and Graham
    Scurr, I met Andrew McGregor an ex Vic Police Detective, my friend Mr R McDonald helped me in the first instance with Mr R Henderson, Tasmania Human Rights Commissioner at the time; Owen.

    • Owen allen says:

      Federal Investigation into Federal Australia. Who instigated Port Arthur Massacre? It ain’t over till the truth comes out. The absurdity is reality to those with the power. Criminal Case Review Commission, please Anthony.
      Someone has to set things right.

  5. Garry Stannus says:

    Yes, Justice Blow’s ‘wrench example’ was in my opinion unfortunate at the least. It gave legs to DPP Ellis’s earlier wrench suggestion:

    It was a wrench, wasn’t it, or a similar sort of tool with which you struck Mr Chappell from behind and killed him……..Mr Ellis, I have never struck anybody, let alone somebody I loved dearly.


    it seems that she now says anyway that the boat when it was at Goodwood was entered and some things were taken, wrenches. Now I’ve suggested that wrenches have been on her mind as a sort of implement that she used to kill Mr Chappell.

    Yesterday, Mr Ellis in – not yesterday the day before, Mr Ellis in cross-examining Ms Neill-Fraser put to her a series of propositions, a scenario about killing Mr Chappell with a wrench, attacking him from behind, and killing him because of a difference of views about the yacht and expenditure and of the future of the yacht. Well it’s not essential that you be satisfied beyond reasonable doubt as to the correctness of any or all of those propositions.


    So if an assailant hits someone on the head with a wrench, for example, and if that sort of bodily harm that’s intended, a head injury caused with a wrench, is something that could well cause death and the assailant knows that that’s the sort of bodily harm that could well cause death then that’s murder. For example, if the assailant thinks, ‘I don’t care whether he dies or not, I’m so angry with him I’m going to hit him on the head with this wrench and that’ll really hurt him’, then that can amount to murder.
    [the jury had asked Blow “… to clarify what is the difference between murder without an intention to cause death and manslaughter and if possible can you give us examples of each of those.“]


    Mr Ellis, in – at the end of his cross-examination of Ms Neill-Fraser, put to her a series of propositions as to, for example, the killing of Mr Chappell with a wrench, and she denied that. Well what he said, the suggested facts contained in his question, aren’t evidence. They’re a theory; they’re a theory that you ought to consider.

    So the judge seemed to be telling the jury that they should consider so-called ‘theories‘ which on the face of it, were devoid of evidence to support them. Blow’s choice of a wrench to explain to the jury the distinction between ‘murder without intent’ and ‘manslaughter’ was – in my view – prejudicial to Susan Neill-Fraser. By this choice of a weapon such as a wrench to explain to the jury the legal distinctions, it seemed that Blow was somehow himself accepting that a wrench was indeed used to kill Bob Chappell and that the only thing the jury had to decide was whether Sue had meant to kill him or just hurt him. That’s how I view Justice Blow’s wrench remarks. Intentionally or not, the judge had – in my view – given support to DPP Ellis’s speculations as to a wrench being a possible murder weapon.

    A good title for a book, Editor? … ‘Murder by Speculation‘?
    Trial Transcript pages
    Ellis: 1297, 1392-1393, 1407
    and of course the inept or unfair…
    Blow: 1493, 1501, 1506, 1542-1543

    Postscript (again, CT:1392-1393):
    She’s walking backwards and forwards and delivers blow – a blow or blows, or maybe stabs him with a screwdriver, I don’t know, he doesn’t look round, and so the body doesn’t have any marks of what you’d expect if someone had come down there, a stranger, intent on doing him harm, the body I suggest would have marks consistent only with being delivered by someone who he knew to be there, who he knew and expected to be behind him.” … speculation ‘in spades’?

    • andrew says:

      Garry, your comment underlines the egregious and unforgivable disregard for the rules that promise a fair trial, both by the prosecution and the presiding judge. This trial was not much more civilised than a lynch mob delivers.

    • Don Wakeling says:

      I’ve just re-read the “wrench” references again. That blow to the head , those fatal wounds. The only Blows were those of “Justice” Blow over the head of “Justice” and directly and consciously leading this jury to convict, and the hapless accused to “Ellis Island”.

  6. tony brownlee says:

    There is but one thing worse than the prosecution being permitted to put a case to a jury that does not exist, the jury deciding: “none of us thought you were guilty but there was something going on so we put you down anyway!”

  7. Williambtm says:

    I believe the words “reckless indifference” hold a higher power against a prosecutor engaged in; presumptive intent & or mere circumstantial evidence.

  8. Owen allen says:

    Indeed Andrew, thats why we can not stop, a life fighting for justice for one and all, is a life worth living.
    Thank you for the portal. Owen.

  9. LizP says:

    Re Sue Neill-Fraser : The purported wrench 🔧 . Mallard revisited .

    Part of the weapon used by Simon Rochford in the killing of his girlfriend, and suspected murder of Pamela Lawrence in 1994, has been found in police possession after being thought lost for many years.

    Police told the ABC the weight collar involved in the murder of Rochford’s girlfriend Brigitta Dickens was found in 2013.

    A weapon was never found in the investigation into the death of Ms Lawrence in Mosman Park, a murder which led to the wrongful conviction of Andrew Mallard.

    After the High Court overturned Mr Mallard’s conviction in 2006, a cold case review identified Rochford as the likely suspect in Ms Lawrence’s murder.

    Rochford, who was serving a prison sentence for the murder of Ms Dickens, died by suicide in 2006.

    Police determined that he had used a wooden stick with a blue weight attached to it in the murders of Ms Dickens and Ms Lawrence.

    But the Corruption and Crime Commission (CCC) was told in 2007 that despite an extensive search of evidence and exhibits, Rochford’s weapon could not be found.

    Counsel assisting Jeremy Gormly SC told the CCC Rochford kept the weapon after the murder of Ms Dickens, and he had dismantled it into its two parts and stored them in “different parts of his baggage”.

    He said blue paint fragments found in Rochford’s backpack during the cold case review matched fragments found in Ms Lawrence’s injuries.

    But he said it was “more likely than not that the weapon was destroyed, as a bulky exhibit, sometime after the trial” of Rochford.

    Recently, police confirmed to the ABC the weight collar used in the murder of Ms Dickens, which was returned to police after Rochford’s 1995 trial, was discovered in an audit of exhibits two years ago.

    Police said testing confirmed the paint on the weight collar matched the fragments found in Ms Lawrence’s wounds and in Rochford’s backpack.

  10. Rodger Warren says:

    The Presumption of Innocence in Australia seems to me to be ignored in many Convictions.

    “The presumption of innocence imposes on the prosecution the burden of proving the charge and guarantees that no guilt can be presumed until the charge has been proved beyond reasonable doubt.”

    It seems to me, Proving beyond Reasonable Doubt is almost impossible without a Confession or more than one reliable witness.
    A DNA result could prove you were there, but not that you committed the crime.

    Take care
    Rodger Warren

Leave a Reply

Your email address will not be published. Required fields are marked *

This site uses Akismet to reduce spam. Learn how your comment data is processed.