Andrew L. Urban.
“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.” With those words, Barry McClintock SC, damned NSW Director of Public Prosecutions Mark Tedeschi, who was now the defendant as Gordon Wood sued Tedeschi and the State of NSW for malicious prosecution. I saw it first hand as I watched McClintock on March 20, 2017, the last day of the trial, making a number of raids on Tedeschi’s behaviour at trial.
It was a famous / infamous case in which Wood had been tried for the murder of his girlfriend, Caroline Byrne. It was the talk of the town (and the nation). Byrne’s 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.
The case was made notorious by several factors, not least the personage of wealthy high profile cigar smoking stockbroker Rene Rivkin, who employed Wood. Another was the late Graham Richardson’s relationship with Rivkin, as Rivkin claimed, including a secret shareholding in Alpine Offset, which was destroyed by fire, resulting in a large insurance payout.
It had been a circumstantial case. The prosecution’s theory began with the proposition that Byrne had been murdered rather than having jumped. A major part of that case was the evidence of Associate Professor Rod Cross, a physicist. Cross conducted experiments intended to reconstruct the trajectory of Byrne’s body from the cliff. The Crown relied on his opinion that, given the location where her body was said to have landed, a normal jump could not account for it and that the body had instead been thrown in what became known as a “spear throw”. The prosecution argued that Wood was physically capable of performing such a throw. The expert evidence therefore supplied an important part of the bridge from “Byrne did not jump” to “someone threw her.”
My response to the Prof Cross evidence was that proving Gordon Wood perhaps capable of the ‘spear throw’ doesn’t prove he performed it.
The second major component was evidence said to place Wood with Byrne at or near The Gap that evening. The Crown relied particularly on evidence from local artist John Doherty, who said he had seen a woman resembling Byrne arguing with a tall man near his studio, with another man nearby. The prosecution sought to identify the tall man as Wood and to use that evidence, together with other sightings, to establish that Wood and Byrne were together shortly before her death. The Crown’s theory was that the two had remained together until the confrontation at the cliff.
The Crown suggested that Byrne might have known information concerning Rivkin’s business affairs which could have caused Wood difficulties if disclosed. There was also evidence and rumour concerning Wood’s relationship with Rivkin. However, the trial judge expressly found that the evidence did not establish beyond reasonable doubt that Wood killed Byrne to protect Rivkin’s financial interests.
The prosecution therefore attempted to make the individual circumstances reinforce one another: Byrne’s death was said to be inconsistent with suicide; Wood was said to have been with her shortly before the death; his account of his movements was said to be false or implausible; his subsequent conduct and knowledge were said to be incriminating; and there was evidence of a deteriorating relationship and possible motive. The Crown presented these matters cumulatively rather than relying upon a single eyewitness or piece of physical evidence.
The critical difficulty, identified by the Court of Criminal Appeal, was the inferential gap between those circumstances and proof that Wood actually threw Byrne from the cliff.
The malicious prosecution trial was heard by Justice Elizabeth Fullerton (who also features in the Robert Xie wrongful conviction.) The notable element of this trial (for malicious prosecution) is that Fullerton castigated Tedeschi for “stretching impermissibly for a conviction” yet she did not find for Wood.
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