Mark Tedeschi KC “impermissibly straining for a conviction”

To date, we have published 37 negative comments from readers on this blog about the former NSW Senior Crown Prosecutor Mark Tedeschi KC, adding to our own criticisms of his prosecutorial behaviour in several cases. Tedeschi finally resigned in 2018 and is no longer a senior Crown prosecutor. He was a high profile prosecutor, famed for his high conviction rate – but Justice Fullerton once admonished him for “impermissibly straining for a conviction”. The following is a snapshot of Mark Tedeschi’s track record, compiled by an interested and well informed reader and edited by Andrew L. Urban. 

Mark Tedeschi became a barrister in 1977. He was appointed NSW Crown Prosecutor in 1983, Deputy Senior Crown Prosecutor in 1990 and Senior Crown Prosecutor in 1997.

1990: Tim Anderson was convicted of the Hilton bombing after a Tedeschi trial. Justice Gleeson when freeing Anderson at the appeal in 1991 wrote:

“ The trial of the appellant miscarried principally because of an error which resulted in large part from the failure of the prosecuting authorities adequately to check aspects of the Jayewardene theory. This was compounded by what I regard as an inappropriate and unfair attempt by the Crown to persuade the jury to draw inferences of fact, and accept argumentative suggestions, that were not properly open on the evidence. I do not consider that in those circumstances the Crown should be given a further opportunity to patch up its case against the appellant. It has already made one attempt too many to do that, and I believe that, if that attempt had never been made, there is a strong likelihood that the appellant would have been acquitted.”

Anderson made more than 50 complaints about Tedeschi’s prosecuting. In perhaps the most astonishing chapter in NSW legal history, the complaints were shuffled from one body to another for a whole decade – each body agreeing that many of them were valid – before the NSW OLSC, Law Society, ODPP, ombudsman, Barristers Association, politicians et al gave up, deciding to cease the endless paper circulation and drop the whole thing. Problem solved.

Early 1990s: The Nader Report by Justice John Nader is a stunning set of files, publicly available for you to read at the State Library, into Mark Tedeschi’s persecution and failed prosecution of an innocent man Paul Kenny. It’s on the public record. Wikipedia’s entry Crown Prosecutors (Australia) – Controversies section has a little bit of info about this. The last item in the Nader Report’s files is Kenny’s trial. Tedeschi’s then boss, Reg Blanch, insists that Maxwell instead of Tedeschi be the prosecutor – we soon see why.

The jury is sworn in. Maxwell’s opening is: “The prosecution rests.” An astonished Judge explains to the jury that he has no alternative but to find the defendant Kenny not guilty and dismiss the jury. The Report indicates that Blanch used this procedure because double jeopardy laws meant that Kenny could no longer be legally pursued by his nemesis. Justice Nader noted, “[he found it] frightening that [Tedeschi] didn’t even concede the possibility that Kenny was innocent”. Although Nader gave Tedeschi a borderline pass, which might have been different if Nader had called an extra witness as one policeman had requested, the inquiry found no evidence that suggested Tedeschi had acted improperly. Problem solved.

Mid 1990s: Tedeschi prosecuted Ivan Milat. The cigarette stubs etc show that more than one person was present at the murder scenes. But potential accomplices were excluded. Borrow from any library Sins of the Brother by Mark Whittaker and Les Kennedy if you want to know more about this case. If you don’t have time to read the whole book, look for the sections about Phil Polglase via the book’s index.

2001: Phuong Ngo was prosecuted by Tedeschi – and convicted after about five trials. Various academics, journalists and a politician claim that this is a serious miscarriage of justice, but after politician Peter Breen was castigated for pursuing the idea of Ngo’s  innocence, everyone seems to have put this case in the “Too Hard to rectify” basket. A prosecutorial incident one day at these trials has become legend but we can’t publish it here because Justice Wood put a non-publication order on it,

2003: Folbigg prosecution by Tedeschi – this took 20 years to rectify. Various law professors and the like are now saying that the original trial includes many shocking examples of what a prosecutor should not do.

For example, Tedeschi compared the likelihood of four children in the same family dying of natural causes to pigs flying. It was the Crown’s work-around to the discredited and inadmissible Meadows’ Law, a statistical formulation claiming that three or more such deaths must be regarded as murder. Tedeschi did not provide any examples of four infant murders in the same family.

2005: Tedeschi (in a Herald article and elsewhere) strongly fought for a change to allow Majority Verdicts. His boss Nick Cowdery and former boss Reg Blanch also fought for this change. The Law Reform Commission recommended the status quo (no majority verdicts).

2006: After Caren Jenning and Shirley Justins who euthanised Graeme Wylie, were found guilty, Caren Jenning, who had serious health issues, committed suicide before sentencing. She was in her 70s. Her suicide note said of Tedeschi: “During the trial, I felt persecuted and harassed by him …. he is a bully boy.” (See Australian Story – A Bitter End parts 1 and 2)

The ABC reported: “…Wiley, 71, had been diagnosed with Alzheimer’s disease and died from an overdose of the drug Nembutal in his northern Sydney home in 2006. His partner of 18 years, Shirley Justins, was charged with his murder and friend Caren Jenning with being an accessory.

“Justins had earlier pleaded guilty to the lesser charge of aiding and abetting suicide.

“Jenning had pleaded guilty to importing the drug but denied being an accessory to murder.

“Despite the guilty pleas, crown prosecutor Mark Tedeschi pushed ahead with murder charges, on the grounds that Justins had a financial and personal motive.

2008: Tedeschi, who won or drew (hung) every jury trial we can find in his 35 years or so as a prosecutor, ended up with a hung jury in a dodgy case using tainted forensics when trying to prosecute Jeff Gilham. Tedeschi couldn’t prosecute Gilham at the retrial because Tedeschi wanted to do the simultaneous Gordon Wood trial, so another prosecutor used Tedeschi’s material to convict Gilham. At Gilham’s successful appeal, the Judges were scathing in their criticism of the prosecutorial methods used, as well as the misuse of forensics.

2008: Tedeschi successfully prosecuted Gordon Wood* for the 2008 murder of his fiancé Caroline Byrne at Sydney’s The Gap. The Judges at Wood’s successful appeal in 2012 were even more scathing in their criticism of the unacceptable prosecutorial techniques used, but the media backlash eventually died down. Problem solved.

2010: Tedeschi successfully convicted Keli Lane of murder by a Majority Verdict, although in reality a close examination of the case shows that no murder or death ever occurred. Tedeschi subsequently included two long footnotes about the Keli Lane case in his book Kidnapped about the unrelated Graeme Thorne kidnapping case. The aim of the footnotes seems to be to absolve the Keli Lane prosecutor of blame if or when Keli’s daughter “Tegan” one day turns up alive.

A policewoman in the TV show Exposed: The Case of Keli Lane explained how the police were patching the case together as Keli’s trial unfolded, in much the same style that Murray Gleeson criticised 20 years earlier. This style also pervaded other trials such as those of Robert Xie and Gordon Wood.

The Bridge of Hope Innocence Initiatives (BOHII) website has more information about this unresolved miscarriage of justice.

2013: Simon Gittany was convicted at a Tedeschi trial, as well as being portrayed in the most unflattering light possible in the media. Some people who are certain of his innocence – it was an accident – are working on the case now.

Robert Xie

2015: Tedeschi ended up with a hung jury (majority voted not guilty) at the third trial of Robert Xie. Two of the jurors explain what happened.

Another prosecutor replaced Tedeschi, using his material to win the fourth trial by a Majority Verdict. This case requires rectification, but the absence of a CCRC in NSW makes justice almost unreachable in cases like Folbigg and Xie. An unusual feature of this trial is that so many court watchers were appalled. Court watchers are random people who attend trials as a hobby, Jamelle Wells of the ABC in her book The Court Reporter talks to Sydney’s most prolific court watcher Angela about how Robert Xie is a defendant whom Angela realised was not guilty as the trial unfolded. Other court watchers K and PC and PG were shocked by what they saw at the trial, especially the parts where the jury were not present. All three, like Angela, were convinced there’s no evidence at all to incriminate Robert Xie. This blog presents much of the material that undermines the conviction. (See menu at right.) Incidentally, Justice Fullerton presided over Xie’s last two trials, as well as at Tedeschi’s trial for malicious prosecution. See below.

So, with Kathleen Folbigg now exonerated, Xie’s is the Tedeschi trial requiring the most urgent rectification.

2016: Tedeschi prosecuted Sydney doctor Brian Crickitt successfully. He was convicted of murdering his wife. Some people who are convinced of his innocence are working on the case now. Though there’s some evidence that this is a miscarriage of justice, this case differs from most of the others in this list because there actually are (in the opinion of some) two pieces of incriminating evidence.

Former Senior Crown Prosecutor Mark Tedeschi KC

2018: Early in 2018, Tedeschi resigned as Senior Crown Prosecutor, after a series of emails about him controversially asking the prosecutors who worked for him to be tougher. In a media statement on December 17, 2017, NSW Bar Association President Arthur Moses SC wrote (in part): “The vast majority of Crown Prosecutors in this state discharge their duty in accordance with their lawful obligations, often in very stressful circumstances where they are running back to back trials for serious offences. These Crown Prosecutors should be supported, not publicly criticised.” Yes, but it’s the minority that do the damage… The era was over.

Gordon Wood on Monday, November 18, 2019

*Editor’s Note: The tail end of the Tedeschi email scandal coincided with Tedeschi himself being on trial as a defendant against malicious prosecution bought by Gordon Wood. On the last day of the trial, acting for Gordon Wood, Barry McClintock SC said to Tedeschi, “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.”

McClintock had earlier referred to the infamous 50 rhetorical questions Tedeschi put to the jury in his closing address at the original 2008 trial, which he was disallowed by the judge to hand out in hard copy but had to read. Tedeschi had been reprimanded about this at the appeal. McClintock suggested to Tedeschi that this was highly improper (prejudicial) conduct.

Her Honour Justice Elizabeth Fullerton

Justice Fullerton, too, was critical of Tedeschi’s “disingenuous” behaviour at Wood’s 2012 trial, and chided him 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 Fullerton J stopped short of finding him guilty of malicious prosecution. Problem solved … again.