SPECIAL REPORT – Prosecutors ‘straining impermissibly for a conviction’: eight examples

Andrew L. Urban.

Walter Sofronoff KC’s damning findings revealed this week of reprehensible behaviour by ACT DPP Shane Drumgold, is the tip of an iceberg that threatens the criminal justice system. In the words of judges, lawyers and legal academics, some of Australia’s other senior prosecutors also show a flagrant disregard for their obligations by ‘impermissibly straining for a conviction’. 

In 2019, Justice Fullerton chided one 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”. She was addressing Mark Tedeschi KC who was being sued for malicious prosecution by Gordon Wood over the 1995 death of Wood’s girlfriend, Caroline Byrne. Tedeschi prosecuted Wood who was convicted of her murder in 2008, but acquitted on appeal in 2012.

AT APPEAL
“To my mind,” the judge wrote, “these (50 rhetorical) questions (by the prosecutor, Mark Tedeschi KC) invited speculation about the actions of the applicant …. and were unreasonably prejudicial to the applicant.”

AT MALICIOUS PROSECUTION TRIAL
Acting for Gordon Wood: Barry McClintock SC

Monday, 20/3/2017
On this the last day of examining prosecutor Mark Tedeschi KC, McClintock SC made a number of raids on Tedeschi’s behaviour at the trial, concentrating on the duties Tedeschi allegedly failed as a prosecutor. “You failed in your duty to alert the jury to the problems with your case. Your duty is not to chase convictions but to present your case fairly. You assumed my client was guilty and set out to prove that.”

Mark Tedeschi KC

“Mr Tedeschi’s conduct demonstrated gross unfairness and his inability to see, even now, that he breached his obligations,” Fullerton J.

Par 1340 of the judgement summarises the reason for Justice Fullerton’s decision:
“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.”

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.”

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Tedeschi again … At the murder trial of Kathleen Folbigg in 2003, prosecutor Mark Tedeschi compared the likelihood of four children in the same family dying of natural causes to pigs flying. It was the Crown’s alternative to relying on the discredited and inadmissible Meadows’ Law, a statistical formulation claiming that three or more such deaths must be regarded as murder. But Tedeschi’s pigs do fly, as demonstrated in the comprehensive 2021 submission by Folbigg’s barrister Dr Robert Cavanagh and solicitor Rhanee Rego – as confirmed by the results of the 2023 inquiry that exonerated Folbigg.

The Cavanagh/Rego submission focuses on “the fundamental errors that occurred at trial and on appeal regarding coincidence and tendency evidence.”

It concludes with a damning declaration: “As illustrated …the coincidence and tendency evidence advanced by the Crown at trial, and subsequently approved in appeals, was flawed. This caused substantial prejudice to Ms Folbigg: she was required to prove her innocence because four deaths in one family from natural causes is so rare, it ought to be regarded as impossible. Ms Folbigg should never have had this onus placed on her and it poisoned every appeal and review of this case to date (as at August 2021).”

Tedeschi was never asked to show cases where four children in the one family had been murdered.

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Five members of a family brutally murdered – no clues, no weapons, no motive, yet the law chased Robert Xie through four trials and an appeal for over 11 years to get a conviction, ignoring the absurdity of their case – and exculpatory facts. “They have no case against Xie” says the late Kevin Borick KC.

The murders were committed sometime between the evening of July 17 and the morning of May 18, 2009; the victims were newsagent Min Lin, 45, Mr Lin’s wife Yun Li “Lily” Lin, 44, their sons Henry, 12, and Terry, 9, and Mrs Lin’s sister, Yun Bin “Irene” Lin, 39. Robert Xie is married to Kathy Lin, Min’s sister, and they lived in houses 300 metres apart, in Sydney’s North Epping.

“The Crown does not know exactly what time it was that the murders occurred,” said the prosecutor, Tanya Smith SC, in her opening address, “but our case is that it must have occurred after 2 o’clock in the morning, because you will hear that it is accepted that the accused had been at home with his wife using the internet until around this time. So it is at some point after 2 o’clock and before 5.30am.” In other words, the case is based on circular reasoning.
The Crown asked the jury to accept that the deaths occurred after 2am – without any evidence – to fit their accusation against Xie.

Xie maintained his innocence, saying he had the alibi of being asleep in bed with his wife Kathy after 2am. Kathy confirmed the alibi; saying she would have woken up, as she usually did, if he had left the bed.

The only way police saw a way to conviction, a path followed by the prosecution, was to frame Xie by accusing him of sedating his wife – so she wouldn’t have woken up. They had to resort to a prison snitch trying to entrap Xie into some self-incriminating statement. Justice Fullerton did not accept that evidence up to the criminal standard. Yet the jury found Xie guilty.

Robert Xie’s claim of innocence looks entirely justified, according to the late defence barrister Kevin Borick KC. “The prosecution admits it doesn’t know the time of death of the victims. It simply asserts a timeframe it has made up – based on the uncontested alibi that Xie was on his computer until 2am on the night in question. But the prosecution has not negated the possibility that any or all of the victims were killed before 2am. They have no case against Xie.”

The police spent two years in a fruitless search for suspects before focusing on Xie. The accusation of him having murdered his wife’s family also falters on the agreed facts that the family relationships were loving, his wife continues to support his innocence… Further, the brutality of the killings make a mockery of the prosecution’s case, given his loving relationship with the two youngsters. Only the most conviction-seeking prosecutor would argue that Xie was able to massacre five family members on his own. Xie has no prior convictions.

There was no forensic evidence linking Xie to the crime; no DNA or fingerprints.

[Xie’s appeal was dismissed; he is now preparing to seek leave to appeal to the High Court.]

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In 1992 Adelaide, the prosecution presented State Forensic Pathologist Dr Colin Manock to a jury at the murder trial of Henry Keogh as competent, qualified and credible. Shortly before that trial started the SA coroner found that the evidence presented by Manock in three murder investigations was in each case “spurious”. The prosecution did not mention those three facts to the jury even though they were aware of the findings.

Keogh was convicted of murdering his fiancee. In a post trial examination of the circumstances of that trial professor Vernon Roberts informed the Solicitor General of South Australia (Chris Kourakis) that Manock’s autopsy process was incompetent. When advising the government to reject Keogh’s petition, Kourakis did not refer to the Vernon Roberts report.

It was 20 years after his incarceration that Keogh won his final appeal and was freed, in  December 2014.

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In the now well known and controversial case of Sue Neill-Fraser’s 2010 conviction for the murder of her partner Bob Chappell, the then Tasmanian DPP, Tim Ellis SC, speculated how the murder may have been committed … without evidence and even without a body. Flinders University legal academic Dr Bob Moles believes that to have been gravely prejudicial. It is certainly impermissible. Needless to say, the circumstantial evidence against her was so weak, said the late barrister Chester Porter KC, he would not have been surprised if the jury acquitted her. Another way of saying he was surprised the jury found her guilty.

Flinders University legal academic Dr Bob Moles is of the view that the prosecutor’s summing up was prejudicial – and forensic evidence was inadmissible.

Her two appeals were dismissed and her seeking leave to appeal to the High Court was refused. Those supporting the conviction, including Tasmanian Attorney-General Elise Archer, claim that this confirms the reliability of the conviction. A triumph… In the view of others, it merely reveals the inability and/or unwillingness of the criminal justice system to correct injustices. A failure …

Neill-Fraser was released on parole in October 2022 after serving 13 years of a 23 year sentence. Tasmania’s Attorney-General has refused to instigate a Commission of Inquiry. (This case is the subject of Urban’s new book, The Exoneration Papers – Sue Neill-Fraser)

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Scott Austic has always maintained he did not murder 34-year-old Stacey Thorne, who was 22 weeks’ pregnant with his child. Thorne was stabbed 21 times and left to die at her home in Boddington, south-east of Perth, in December 2007. Prosecutors said the motive for the killing was that Austic — who lived about 350 metres from Ms Thorne and kept their relationship secret — did not want her to have the baby.

However at the retrial, unlike the initial case, the defence was based on allegations that “a small but corrupt” group of police officers, who had decided early on that Austic was the culprit, planted crucial evidence against him.

David Edwardson QC said that included the Jim Beam can and the knife that was alleged to be the murder weapon.

The defence called an expert, who testified the knife “miraculously” found by detectives in a paddock that already been thoroughly searched by State Emergency Service volunteers, was not long enough to have inflicted the deep wounds suffered by Thorne.

Trying to protect the conviction, prosecutor Justin Whalley SC outlined “11 strands of circumstantial evidence” that he claimed proved Austic was Thorne’s killer. The prosecutor failed.

In November 2020, after 13 years in jail, 45 year old Scott Austic finally regained his freedom and his official innocence, when a WA jury acquitted him after two hours of deliberations.

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Steven Fennell was given a life sentence in 2016 for the murder of 85-year-old Liselotte Watson on Macleay Island in Moreton Bay. Ms Watson was bludgeoned to death in her home in November 2012 and Mr Fennell had been in custody since his arrest in March 2013.

There was evidence Mr Fennell was on his home computer when the prosecution suggested he was at Ms Watson’s house cleaning up after the murder. That’s humiliating … basic police investigation failure or prosecutor incompetence? Fennell, 60, returned home for the first time in more than six years, following the ruling that a jury’s guilty verdict was unreasonable, as The Australian’s David Murray reported on September 12, 2019.

“I’ve said all along I don’t believe anybody intended to kill Mrs Watson, I believe it was a bungled burglary,” Fennell said after rejoining his wife Helen and son Adam.

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And then there is Shane Drumgold …Walter Sofronoff KC, who chaired the commission of inquiry into the ACT criminal justice system’s handling of the Higgins/Lehrmann fiasco, found that ACT chief prosecutor Shane Drumgold knowingly lied to the Supreme Court, engaged in serious malpractice and grossly unethical conduct.

The role of the prosecutor

An early Canadian case [1955] stated the key principles applying to prosecutors in criminal trials. They were taken up and applied in Britain and Australia and are contained in the barrister’s and prosecutor’s rules and guidelines which are in common form in Australia.

The prosecutor:

• must provide the court with all relevant evid­ence;
• must not use inflammatory or vindictive language;
• must not express a personal opinion or belief in the case

Prosecutors must be guided by the principles of:

Fairness at all times: This starts from the pre-trial period and continues even after any trials and appeals have been concluded. The goal must be to ensure that any trial was fair and in accordance with the rule of law. The motivation must not be to obtain a conviction ‘at all costs’.

Independence and equality: prosecutors must apply the law to all without fear or favour and without influence from police, complainants, victims, or politicians.

Impartiality: prosecutors are ‘minister of justice’, and must act in a consistent, objective and transparent manner in all cases.

It should be noted that there are many prosecutors who adhere to these principles; some do not. The trouble is that they are not held accountable. The damage and cost will continue until they are.