Wood v State of New South Wales - [2018] NSWSC 1247 - NSWSC 2017 case summary — Zoe

NSWNSWSC

Wood v State of New South Wales

[2018] NSWSC 1247

Supreme Court of NSW|2017-07-03|Before: Fullerton J

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Source facts

Court

Supreme Court of NSW

Decision date

2017-07-03

Before

Fullerton J

Source

Original judgment source is linked above.

Judgment (149 paragraphs)

[1]

st Council [2016] NSWCCA 186 Gersbach v R [2009] NSWCCA 132 Grierson v The Queen (1938) 60 CLR 431; [1938] HCA 45 Johnston v Australia & New Zealand Banking Group Ltd [2006] NSWCA 218 Kuligowski v Metrobus (2004) 220 CLR 363; [2004] HCA 34 Libke v R (2007) 230 CLR 559; [2007] HCA 30 M v The Queen (1994) 181 CLR 487; [1994] HCA 63 Mahon v Rahn (No 2) [2000] 1 WLR 2150 Morley v Australian Securities and Investments Commission (2010) 274 ALR 205; [2010] NSWCA 331 Neat Holdings Pty Ltd v Karajan Holdings Pty Ltd (1992) 67 ALJR 170; [1992] HCA 66 PNJ v The Queen (2009) 193 A Crim R 54; [2009] HCA 6 Palmer v Dolman [2005] NSWCA 361 R v Apostilides (1984) 154 CLR 563 [1984] HCA 38 R v Dickman (2017) 91 ALJR 686; [2017] HCA 24 R v Kneebone (1999) 47 NSWLR 450; [1999] NSWCCA 279 R v O'Brien (1996) 66 SASR 396 R v Shaw (1991) 57 A Crim R 425 R v Skaf (2004) 60 NSWLR 86; [2004] NSWCCA 37 R v Storey (1978) 140 CLR 364; [1978] HCA 39 Ramsay v Pigram (1968) 118 CLR 271; [1968] HCA 34 Richardson v The Queen (1974) 131 CLR 116 at [119] Rogers v The Queen (1994) 181 CLR 251; [1994] HCA 42 SKA v The Queen (2011) 243 CLR 400; [2011] HCA 13 Sahade v Bischoff [2015] NSWCA 418 State of New South Wales v Hathaway [2010] NSWCA 184 State of New South Wales v Landini [2010] NSWCA 157 Tien Tran v Magistrates' Court of Victoria [1998] VSC 337 Tomlinson v Ramsey Food Processing Pty Ltd (2015) 256 CLR 507; [2015] HCA 28 Trobridge v Hardy (1955) 94 CLR 147 Vu v New South Wales Crime Commission [2013] NSWCA 282 Whitehorn v R (1983) 152 CLR 657; [1983] HCA 42 Wood v R (2012) 84 NSWLR 581; [2012] NSWCCA 21 Zoneff v The Queen (2000) 200 CLR 234; [2000] HCA 28 Category: Principal judgment Parties: Gordon Wood (Plaintiff) State of NSW (Defendant) Representation: Counsel: B McClintock SC / B Dean (Plaintiff) P Neil SC / A Williams / B Narula (Defendant)

[2]

[3]

Judgment The pleadings The standard of proof The question of issue estoppel The judgment of the Court of Criminal Appeal in summary The plaintiff's submissions The defendant's submissions Is the claim in issue estoppel or abuse of process made out? The identity of issue The identity of parties Conclusion on the question of issue estoppel The elements of proof in a claim for malicious prosecution The identity of the alleged prosecutors The controversy over the landing point: Hole A or Hole B? The appointment of Hole B as the point of recovery Sgt Powderly's evidence at the inquest The plaintiff's position on the Hole A/Hole B issue in these proceedings The plaintiff's case against Det Insp Jacob and Mr Tedeschi as prosecutors - in summary Det Insp Jacob Mr Tedeschi The defendant's case on the identity of each of the prosecutors Mr Tedeschi as a prosecutor Det Insp Jacob as a prosecutor A/Prof Cross as a prosecutor The elements of the tort of malicious prosecution at issue in this case What constitutes malice? The tests for proof of a want of reasonable and probable cause The temporal question The hearing in summary The manner and cause of Ms Byrne's death and the approach of this Court to that question The Court's approach to the evidence and the issues Has the plaintiff made out a case that A/Prof Cross is a prosecutor? A/Prof Cross's involvement with Strike Force Irondale and the provision of his advice The initial involvement of A/Prof Cross with the investigation into Ms Byrne's death The reliance, if any, of A/Prof Cross's motivations in offering to assist The formal requesting letter from Det Insp Jacob to A/Prof Cross The draft of the first Cross report Email correspondence between A/Prof Cross and Det Insp Jacob following service of the first draft report The (settled) first Cross report: 19 November 2003 The first Cross report Deletion of the word "accidentally" from the first report The visit to the Gap in January 2004 The evidence of Ms Comina and Det Insp Jacob re the discovery of the Hole A/Hole B controversy The new launch site is identified The police request for a further (second) report from A/Prof Cross The (draft) second Cross report: 16 June 2004 The ODPP sends requisitions Prof Elliot's first report Prof Elliot's second report Mr Tedeschi's comments on A/Prof Cross's test results Further requisitions are sent Further poolside tests are conducted The bench press issue Further requisitions are sent and a further site visit arranged A fourth report is requested The fifth Cross report The sixth Cross report The seventh Cross report The plaintiff's case against A/Prof Cross as prosecutor restated Finding on whether A/Prof Cross is a prosecutor Det Insp Jacob's liability as a prosecutor by arresting the plaintiff and extraditing him to New South Wales The alternate basis upon which the plaintiff contends Det Insp Jacob is a prosecutor The allegations that Det Insp Jacob acted dishonestly The three phases of the police investigation Ms Byrne is reported as a missing person The post-mortem examination The toxicological analysis The cause of death The first and second phases of the police investigation, including the further evidence adduced at the inquest The plaintiff's first account of events to Cst Woods on 8 June 1995 and then on 12 June 1995 Mr Byrne's involvement in the investigation The inquiry into Ms Byrne's mental health in the first phase of the investigation and how it was treated by investigators The second phase of the police investigation The evidence of Mr Martin and Mr Melbourne at the inquest The Coroner's findings Strike Force Irondale is initiated and the third phase of the investigation commences The plaintiff's further various accounts to police and the way they were analysed The Sufficiency of Evidence Report - the culmination of the third phase of the investigation The period in Ms Byrne's life from 1989 to 1994 January 1995 to the week commencing Monday 4 June 1995 The week before Ms Byrne's death Wednesday 7 June 1995 to Thursday 8 June 1995 The plaintiff's account of his movements on 7 June 1995 and the accounts of others as to that issue The twelve issues Det Insp Jacob focused upon in the Sufficiency of Evidence Report Ms Byrne's movements and the plaintiff's movements on the afternoon on 7 June 1995 Mr Melbourne's first statement Ms Clifford's first statement to the police The plaintiff's identification by Mr Martin at Glebe Coroner's Court The plaintiff's identification by Mr Melbourne at Glebe Coroner's Court Mr Melbourne's second statement Mr Martin's second statement Mr Doherty's first statement Mr Doherty's second statement Mr Doherty's third statement The plaintiff's movements after 6:30pm and the plaintiff sleeping through to 11:30pm/12:40am The plaintiff leaves a note for Ms Byrne prior to leaving to "search" for her The plaintiff collects a car to "search" for Ms Byrne via the Kings Cross carpark The plaintiff searches for Ms Byrne The plaintiff is drawn to the Gap by spiritual communications; The plaintiff locates the Suzuki Vitara in Gap Lane The search of the Gap before the involvement of police The suicide hypothesis is rejected by Det Insp Jacob Ms Yule's "psychological autopsy" report Resolution of the plaintiff's alternate case against Det Insp Jacob as a prosecutor The issue of identification Mr Melbourne's evidence at trial Mr Martin's evidence at trial Mr Doherty's evidence at trial The effect of displacement and the plaintiff's submissions concerning the "identification evidence" The alternate case against Det Insp Jacob as prosecutor fails: Mr Tedeschi is the only prosecutor Mr Tedeschi's evidence on the issue of identification The defendant's submission on the identification issue The competing cases on the "identification evidence" in summary and their resolution The significance of the green Bentley on the issue of identification and Mr Tedeschi's submissions about it Conclusions on the issue of the green Bentley The Crown's failure to exclude suicide The submissions of the parties on the question of suicide and Mr Tedeschi's obligations in dealing with it Mr Tedeschi did not lead evidence of Ms Byrne's 1992 hospital admission The significance of A/Prof Cross's evidence on the failure to exclude suicide Wave activity and suicide Mr Tedeschi's duties as a prosecutor Mr Tedeschi's evidence in these proceedings and the competing submissions of the parties concerning it The issue of the conscious/struggling woman as assessed by Mr Tedeschi The issue of a limp and unresponsive unconscious woman The shotput throw The association between bench press ability and throw strength Has the plaintiff established he was prosecuted maliciously without reasonable and probable cause by Mr Tedeschi? Has the plaintiff proved Mr Tedeschi prosecuted the plaintiff maliciously? Examples of what the plaintiff relies upon as evidence of Mr Tedeschi "fighting or straining for a conviction" in his closing submissions (not particularised in the pleadings) The "gym fight" Mr Georgiou's evidence Mr Doherty's evidence and the "sobbing girl" Mr Tedeschi's evidence in justification of the Crown case on motive The plaintiff had "insider trading information" The significance of Exhibit DJ (formerly Figure 17 in the second Cross report) The carpark issue The tender of Exhibit DO The "50 Questions" The "killer point" The various accounts of seeing Ms Byrne's body and clothing at the base of the cliff Evidence of what the plaintiff said after 7/8 June 1995 The "Witness" program (Ex 1 in these proceedings) Mr Tedeschi's closing address on "the killer point" Conclusions on the issue of malice Orders

[4]

JUDGMENT

HER HONOUR: On 8 June 1995, the body of Caroline Byrne was found wedged between rocks at the base of a cliff at Watsons Bay; an area colloquially known as "the Gap". On 3 May 2006 the plaintiff was charged with her murder.
On 27 November 2008, after a trial before Barr J and a jury, the plaintiff was convicted of her murder. On 4 December 2008 he was sentenced to imprisonment for 17 years and 4 months with a non-parole period of 13 years.
On 12 February 2012 the plaintiff's conviction was quashed and a verdict of acquittal entered (Wood v R (2012) 84 NSWLR 581; [2012] NSWCCA 21).
By an amended statement of claim filed on 21 February 2017, the plaintiff pleaded causes of action for a range of tortious conduct by a number of named individuals for whom it was alleged the Crown was vicariously liable under Pts 3 and 4 of the Law Reform (Vicarious Liability) Act 1983 (NSW) ("Vicarious Liability Act"). By operation of s 5 of the Crown Proceedings Act 1988 (NSW) the proceedings were brought against the Crown under the title "State of New South Wales".
The torts for which it was alleged the defendant was vicariously liable included malicious prosecution by a number of people who were alleged to have instituted and maintained the proceedings against the plaintiff for Ms Byrne's murder maliciously and without reasonable and probable cause. The plaintiff also sought an award of damages for what was alleged to have been misfeasance by Mr Nicholas Cowdery QC in his statutory office of the Director of Public Prosecutions for New South Wales in the decision he made on 1 March 2006 to prosecute the plaintiff for Ms Byrne's murder, damages for false imprisonment and abuse of process.
On 20 February 2017, the first day of the hearing, a further amended statement of claim was filed. The claim for false imprisonment was not pursued on the amended pleadings.
On 6 March 2017, during the course of the hearing, the pleadings were further amended by the filing of a second further amended statement of claim in which the claim for what was alleged to have been Mr Cowdery's tortious conduct was formally abandoned, as was the claim for an abuse of process. The plaintiff's contention that Sgt Mark Powderly, the police officer who recovered Ms Byrne's body from the base of the Gap, and Det Sgt Brian Wyver (who now holds the rank of Detective Inspector), who conducted further investigations into her death at the Coroner's request in 1998, were prosecutors for whose alleged tortious conduct the defendant was vicariously liable, was also withdrawn.
By the second further amended statement of claim the plaintiff maintained his claim for damages for malicious prosecution by each of three prosecutors: Detective Inspector Mark Jacob, Mr Mark Tedeschi AM QC and Associate Professor Rodney Cross, forensic physicist, for whose tortious conduct he contends the defendant is vicariously liable under s 8 of the Vicarious Liability Act.
The plaintiff's reformulated case was formalised by the filing of what was referred to in the proceedings as the FASC on 6 March 2017. A defence to the FASC was filed on 21 February 2017 as the operative defence. The plaintiff's Reply to Defence, filed on 23 February 2017, was taken to be the reply to the defence.
The questions that arise for determination on the plaintiff's reformulated case are limited to proof of the elements of the tort of malicious prosecution.
In A v State of New South Wales (2007) 230 CLR 500; [2007] HCA 10 at [1] the Court identified the elements of the tort of malicious prosecution as follows: (1) that proceedings of the kind to which the tort applies (generally, as in this case, criminal proceedings) were initiated against the plaintiff by the defendant; (2) that the proceedings terminated in favour of the plaintiff; (3) that the defendant, in initiating or maintaining the proceedings acted maliciously; and (4) that the defendant acted without reasonable and probable cause.
Aside from the separate question as to who of Det Insp Jacob, A/Prof Cross and Mr Tedeschi is a prosecutor for the purposes of the tort, in these proceedings only elements (3) and (4) are in issue. These elements will be addressed at length later. Suffice to note at this time that malice is only established if the prosecutor's dominant purpose for bringing the proceedings has been demonstrated to be "other than the proper invocation of the criminal law" (see A v NSW at [91]). As to absence of reasonable and probable cause, the relevant question is whether the prosecutor had reasonable and probable cause to do what he or she did, not whether, irrespective of the prosecutor's actual knowledge or belief, there was reasonable and probable cause for a charge to be laid. An allegation as to the absence of reasonable and probable cause goes to the sufficiency of the material before the prosecutor at a particular time to warrant setting the processes of the criminal law in motion, or maintaining them.

[6]

The standard of proof

In order for the plaintiff's claim for damages to succeed he is obliged to establish that he was prosecuted maliciously without reasonable and probable cause on the balance of probabilities. In determining whether the elements of the tort have been proved according to that standard, the matters enumerated under s 140(2) of the Evidence Act 1995 (NSW) need to be considered. They are: (a) the nature of the cause of action or defence, and (b) the nature of the subject-matter of the proceeding, and (c) the gravity of the matters alleged.
The parties accepted that s 140(2) gives effect to the settled principles in Briginshaw v Briginshaw (1938) 60 CLR 336; [1938] HCA 34 and their application to this case.
Accordingly, in determining whether the gravity of the allegations made against each of the putative prosecutors as contended for by the plaintiff is made out to the Court's reasonable satisfaction, the seriousness of the particular allegation, the inherent unlikelihood of a particular occurrence, and the gravity of the consequences flowing from an adverse finding are relevant considerations which will impact on whether the elements of the tort that are in issue have been proved.
At 361-362 of the oft-cited judgment of Dixon J in Briginshaw, his Honour said: Except upon criminal issues to be proved by the prosecution, it is enough that the affirmative of an allegation is made out to the reasonable satisfaction of the tribunal. But reasonable satisfaction is not a state of mind that is attained or established independently of the nature and consequence of the fact or facts to be proved. The seriousness of an allegation made, the inherent unlikelihood of an occurrence of a given description, or the gravity of the consequences flowing from a particular finding are considerations which must affect the answer to the question whether the issue has been proved to the reasonable satisfaction of the tribunal. In such matters "reasonable satisfaction" should not be produced by inexact proofs, indefinite testimony, or indirect inferences. Everyone must feel that, when, for instance, the issue is on which of two dates an admitted occurrence took place, a satisfactory conclusion may be reached on materials of a kind that would not satisfy any sound and prudent judgment if the question was whether some act had been done involving grave moral delinquency.
In Neat Holdings Pty Ltd v Karajan Holdings Pty Ltd (1992) 67 ALJR 170; [1992] HCA 66 Mason CJ, Brennan, Deane and Gaudron JJ, elaborating on what Dixon J said in Briginshaw, stated at [2]: The ordinary standard of proof required of a party who bears the onus in civil litigation in this country is proof on the balance of probabilities. That remains so even where the matter to be proved involves criminal conduct or fraud. On the other hand, the strength of the evidence necessary to establish a fact or facts on the balance of probabilities may vary according to the nature of what it is sought to prove. Thus, authoritative statements have often been made to the effect that clear or cogent or strict proof is necessary "where so serious a matter as fraud is to be found". Statements to that effect should not, however, be understood as directed to the standard of proof. Rather, they should be understood as merely reflecting a conventional perception that members of our society do not ordinarily engage in fraudulent or criminal conduct and a judicial approach that a court should not lightly make a finding that, on the balance of probabilities, a party to civil litigation has been guilty of such conduct.
In Palmer v Dolman [2005] NSWCA 361, Ipp JA (Tobias and Basten JJA agreeing), after considering the authorities and s 140 of the Evidence Act, said at [47]: [T]here are no hard and fast rules by which serious allegations might be proved from circumstantial evidence. The inquiry is simply, taking due account of what was said in Neat Holdings Pty Ltd v Karajan Holdings Pty Ltd, has the allegation been proved on a balance of probabilities.
An area of contention between the parties in final submissions was the manner in which competing explanations for a prosecutor's conduct are to be resolved. The defendant submits, inter alia, that the plaintiff must exclude any reasonable explanation for a prosecutor's conduct inconsistent with malice, while the plaintiff contends that it is sufficient that any serious allegations he makes be proved on the balance of probabilities.
In support of the plaintiff's contention, reference was made to Vu v New South Wales Crime Commission [2013] NSWCA 282 at [80] where, quoting Chamberlain v The Queen (No 2) (1984) 153 CLR 521; [1984] HCA 7 at [536]), McColl JA (with whom Meagher and Emmett JJA agreed) found that in considering whether an hypothesis was established on the balance of probabilities: [T]he primary judge had to be able to conclude that the circumstances raised "a more probable inference in favour of what is alleged".
Accordingly, the plaintiff contends that he is not obliged to "exclude" competing hypotheses for what is relied upon as conduct evidencing malice, but to show that an explanation is, in all the circumstances, the more probable.
The plaintiff also relies upon Vu where, citing Doney v the Queen (1990) 171 CLR 207; [1990] HCA 51 at [8], the Court said: [T]he existence of other reasonable hypotheses is simply a matter to be taken into account in determining whether the fact in issue should be inferred from the facts proved.
The defendant relied on State of New South Wales v Hathaway [2010] NSWCA 184. At first instance the appellant had been found to have maliciously prosecuted the respondent in respect of a charge relating to a knife. An issue was whether the trial judge's finding that a police officer had brought those charges without reasonable and probable cause was properly reached having regard to the standard of proof, as to which the Court said at [263]: We are satisfied that the Briginshaw principle as articulated by the cases referred to above has application to the present case. This is because the primary judge's conclusion at [198] of her reasons that Briggs lacked reasonable and probable cause to bring the charges involving the knife, and that, in doing so, he acted for an improper purpose and, therefore, maliciously, was founded on her finding at [171]-[172] that she was satisfied that Briggs was aware that the knife was taken from the kitchen drawer and placed in the bedroom by one or more police officers after the respondent had been removed from the Gaffney house. In the language of Briginshaw, the seriousness of that finding and the gravity of the consequences flowing from it are such that it requires "clear or cogent or strict proof" in order to be made out on the balance of probabilities.
Clearly, the extracted paragraph from Hathaway above should be read in the context of what the High Court said in Neat Holdings as extracted at [20] above.
Reliance was also placed on Morley v Australian Securities and Investments Commission (2010) 274 ALR 205; [2010] NSWCA 331 which the defendant correctly submitted was authority for the proposition that the graver the consequences of a particular finding, the stronger should be the evidence required to conclude that the allegation is established on the balance of probabilities.
The defendant also sought to rely on Commonwealth of Australia v Fernando (2012) 200 FCR 1; [2012] FCAFC 18 where, at [129]-[130], the Court found: [129] In Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia v Australian Competition and Consumer Commission (2007) 162 FCR 466; [2007] FCAFC 132, a Full Court of this Court considered the standard of proof required in civil proceedings in the light of Briginshaw and the requirements of s 140. The Court said (at 480 [32]) that: "The mandatory considerations which s 140(2) specifies reflect a legislative intention that a court must be mindful of the forensic context in forming an opinion as to its satisfaction about matters in evidence. Ordinarily, the more serious the consequences of what is contested in the litigation, the more a court will have regard to the strength and weakness of evidence before it in coming to a conclusion." The Full Court continued (at 482 [37]), saying that: "Ultimately, because this is a civil, not criminal, proceeding the civil standard of proof applies. Thus, the ACCC had to establish that the circumstances appearing in the evidence gave rise to a reasonable and definite inference, not merely to conflicting inferences of equal degrees of probability, that [the impugned conduct had occurred]." [130] A finding that a Commonwealth Government Minister has deliberately exercised an important statutory power knowing that, in doing so, he was acting unlawfully is properly to be characterised as grave. The legal consequences are potentially serious as too is the effect on the Minister's reputation. In circumstances in which, on the facts found, conflicting inferences are open and one of those inferences is favourable to the respondent, the Court will not be satisfied that the applicant's case has been proved to the necessary standard. For the reasons which we have explained this is such a case. (Emphasis added.)
To the extent the defendant submitted that Fernando is authority for the proposition that the plaintiff must exclude any hypothesis available or open on the evidence before finding an unfavourable hypothesis proved, I am not satisfied that submission is correct. Competing hypotheses may be "open" but one of greater probability than another will allow a conclusion to be reached that, having regard to the matters to which reference must be made in s 140(2), it has been made out to the level of reasonable satisfaction.
Proper consideration of the conclusion expressed at [130] in Fernando, when considered in the context of what the Full Court of the Federal Court said in Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia v Australian Competition and Consumer Commission (2007) 162 FCR 466; [2007] FCAFC 132, and which was extracted at [129] of Fernando, reveals that the Court was concerned with conflicting "open" hypotheses for conduct where those hypotheses were of equal degrees of probability. To accept, as I understand the defendant to submit, that Fernando is authority for the proposition that an open and favourable hypothesis must be excluded before accepting a competing open and unfavourable hypothesis, even if it is less likely, would be, in my view, to alter the applicable standard of proof.

[7]

The question of issue estoppel

In the plaintiff's Reply to the Defence he contends that because of what are said to be 52 separate "findings" of the Court of Criminal Appeal in Wood v R ("the appeal judgment") the defendant is estopped from denying (or not admitting) a number of facts or conclusions of fact, pleaded in pars 16 and 17 of the FASC, as the facts or conclusions of fact the plaintiff relies upon to establish the elements of the tort of malicious prosecution against one, or more than one, of the prosecutors for whom he contends the defendant is vicariously liable.
The plaintiff's claim in issue estoppel is grounded in the proposition that each of what are said by him to be the 52 "findings" of the Court of Criminal Appeal were a "necessary conclusion" either in the Court being satisfied that the verdict of the jury was unreasonable or not supported by the evidence pursuant to s 6(1) of the Criminal Appeal Act 1912 (NSW), or that the verdict could not be maintained because various substantive grounds of appeal brought pursuant to s 5(1)(a) were upheld, each of which would have warranted the conviction being quashed and a new trial ordered had the Court not been satisfied that a verdict of acquittal should be entered.
In the plaintiff's written submissions, the 52 "findings", identified as the matters of fact he contends the defendant is estopped from denying, were re-characterised as the "conclusions" reached by the Court in the appeal judgment (as to which see later).
Each of the 52 "findings" (or "conclusions") are identified in the Reply, referable to nominated paragraphs in the judgment of McClellan CJ at CL at [1]-[809]. While no issue estoppel is said to attach to any additional findings of either Latham J at [810]-[819] or Rothman J at [820]-[829], since their Honours expressed their agreement with the orders proposed by McClellan CJ at CL in the ultimate disposition of the appeal and with his Honour's reasons for coming to that conclusion, the "findings" (or "conclusions") said by the plaintiff to attract an issue estoppel, should be treated as the findings of the Court. In addition (although not said so by the plaintiff expressly), Latham and Rothman JJ should also be taken to have agreed with McClellan CJ at CL's reasons for upholding the four substantive grounds of appeal that would have warranted the quashing of the plaintiff's conviction and the ordering of a retrial.

[8]

The judgment of the Court of Criminal Appeal in summary

The plaintiff appealed his conviction under s 5 of the Criminal Appeal Act. Under s 5(1)(a) of the Criminal Appeal Act a person convicted on indictment may appeal on any ground which involves a question of law.
Section 6(1) of the Criminal Appeal Act provides: The court on any appeal under section 5 (1) against conviction shall allow the appeal if it is of opinion that the verdict of the jury should be set aside on the ground that it is unreasonable, or cannot be supported, having regard to the evidence, or that the judgment of the court of trial should be set aside on the ground of the wrong decision of any question of law, or that on any other ground whatsoever there was a miscarriage of justice, and in any other case shall dismiss the appeal; provided that the court may, notwithstanding that it is of opinion that the point or points raised by the appeal might be decided in favour of the appellant, dismiss the appeal if it considers that no substantial miscarriage of justice has actually occurred.
The first ground of appeal, brought pursuant to s 6(1) of the Act, was that the verdict of the jury should be set aside as unreasonable or that it could not be supported having regard to the evidence. In the separate judgments of McClellan CJ at CL, Latham J and Rothman JJ, their Honours examined the sufficiency and quality of the evidence led by the Crown at the plaintiff's trial in proof of its case that he murdered Ms Byrne, in accordance with the principled approach to an appeal brought pursuant to s 6(1) in SKA v The Queen (2011) 243 CLR 400; [2011] HCA 13.
At [387]-[388] McClellan CJ at CL held: [387] I have reviewed the entirety of the evidence at the trial and have expressed my view about the significance of many parts of it. Having regard to the entirety of the evidence I have concluded that the verdict of the jury cannot be supported. To my mind the circumstances do not establish beyond reasonable doubt that the applicant murdered Ms Byrne. [388] Leave to raise Ground 1 should be granted, the appeal upheld, and a verdict of acquittal entered. However, it remains necessary to deal with the other grounds of appeal: Cornwell v The Queen [2007] HCA 12; 231 CLR 260 at [105].
Latham and Rothman JJ agreed with his Honour's conclusion and his reasons.
The remaining grounds of appeal were as follows: Ground 2: A miscarriage of justice was occasioned by the directions given by the learned trial judge in relation to: A. The positive identification evidence of Martin and Melbourne relied on as day time sightings of the applicant and Ms Byrne at Watsons Bay; and/or B. The evidence of Mr Doherty and Miss Kingston relied on by the prosecution as night time sightings of the applicant and Miss Byrne Ground 3: The evidence and the opinions of A/Prof Cross caused the trial to miscarry. Ground 4: His Honour erred in rejecting evidence showing rocks at the base of the gap being covered in water, and movement of water over the rocks, as being irrelevant to the trial. Ground 5: His Honour erred in law in declining to identify for the jury and direct as to the intermediate facts requiring proof beyond reasonable doubt in accordance with Shepherd v The Queen (1990) 170 CLR 573. Ground 6: the trial miscarried by reason of the prejudice occasioned by the crown prosecutor. Ground 7: The trial judge erred both in leaving murder on the basis of joint criminal enterprise to the jury and in failing to identify properly the basis upon which any such verdict should be reached. Ground 8: The learned trial judge erred in allowing the crown to present evidence and make submissions suggesting that the deceased's knowledge of details relating to the offset alpine fire was a motive for the offence of murder. Ground 9: There has been a miscarriage of justice in the trial of the applicant on account of fresh evidence and evidence undisclosed at the trial.
Grounds 1, 6, 7, 8 and 9 were made out.
Two aspects of the evidence upon which the Crown relied in proof of its case against the plaintiff were the subject of particular criticism by the Court in its consideration of both the sufficiency and quality of the evidence for the purposes of the first ground of appeal and the error the subject of Grounds 2 and 3.
The first was what their Honours regarded as the unreliability of the identification evidence relied upon by the Crown to prove that the plaintiff was at Watsons Bay at the time of Ms Byrne's death (at 11:30pm on 7 June 1995 on the Crown case); a fact which was essential to the Crown satisfying the jury of the plaintiff's guilt beyond reasonable doubt. The second aspect was what their Honours regarded as the lack of cogency in A/Prof Cross's evidence (an expert witness called by the Crown) that Ms Byrne was thrown from the cliff in a "spear throw by a strong man" to disprove what the Crown accepted was the reasonable possibility that Ms Byrne committed suicide, an explanation for her death which the Crown accepted it was obliged to disprove beyond reasonable doubt if it was to prove its case that the plaintiff murdered her.
These two issues, and the manifold deficiencies in the Crown's case that were generated by doubts as the sufficiency and quality of the body of evidence which addressed them, coupled with what was described by McClellan CJ at CL at [19] as the deficiencies in the Crown case on the issue of motive (predicated in his Honour's view on the Crown Prosecutor's submissions that were impermissibly speculative and based on conjecture) led the Court to the unanimous finding that the first ground of appeal was made out and that the plaintiff's conviction for murder should be quashed and a verdict of acquittal entered.
The detailed analysis of the evidence led at trial in the judgment of McClellan CJ at CL at [49]-[388] in his consideration of the first ground of appeal, is eloquent of the factual complex underpinning the Crown case and the lengthy police investigation which preceded it. The consideration his Honour gave to the remaining eight grounds of appeal is also eloquent of the plaintiff's complaint about the quality of the expert evidence adduced from A/Prof Cross (one of the putative prosecutors in these proceedings) and his credibility generally in light of the fresh evidence received on the hearing of the appeal (Grounds 3 and 9). It is also eloquent of the conduct of Mr Tedeschi as the Crown Prosecutor which the Court was satisfied undermined the fairness of the trial (Ground 6).
It is both necessary and practical to resolve as a preliminary question whether any issue estoppel attaches to what the plaintiff identifies in his Reply as the 52 "findings" (or "conclusions") of the Court of Criminal Appeal. It will also be necessary to resolve whether it would constitute an abuse of process for the defendant to deny (or not admit) what the plaintiff contends are those findings. A finding that issue estoppel attaches to some or all of what the plaintiff contends are the Court's findings, or a finding that it would be an abuse of process for the defendant to put all or some of those matters in contest in these proceedings, will impact directly the ambit of issues of fact and law that are in dispute in these proceedings as it will, or might, influence their resolution.

[9]

The plaintiff's submissions

The plaintiff's primary submission is that the pleading of issue estoppel in the Reply accords with what the High Court said in Tomlinson v Ramsey Food Processing Pty Ltd (2015) 256 CLR 507; [2015] HCA 28 concerning the operation of the doctrine of issue estoppel in Australia. The plaintiff submitted that because considerations of fairness and finality underpin its operation, issue estoppel may attach to any final judicial determination, irrespective of whether it arises in criminal appeal proceedings or civil proceedings. At [21]-[22], the Court observed: [21] Estoppel in relation to judicial determinations is of a different nature. It is a common law doctrine informed, in its relevant application, by similar considerations of finality and fairness. Yet its operation is not confined to an exercise of judicial power; it also operates in the context of a final judgment having been rendered in other adversarial proceedings. It operates in such a context as estoppel operates in other contexts: as a rule of law, to preclude the assertion of a right or obligation or the raising of an issue of fact or law. [22] Three forms of estoppel have now been recognised by the common law of Australia as having the potential to result from the rendering of a final judgment in an adversarial proceeding. The first is sometimes referred to as "cause of action estoppel". Estoppel in that form operates to preclude assertion in a subsequent proceeding of a claim to a right or obligation which was asserted in the proceeding and which was determined by the judgment. It is largely redundant where the final judgment was rendered in the exercise of judicial power, and where res judicata in the strict sense therefore applies to result in the merger of the right or obligation in the judgment. The second form of estoppel is almost always now referred to as "issue estoppel". Estoppel in that form operates to preclude the raising in a subsequent proceeding of an ultimate issue of fact or law which was necessarily resolved as a step in reaching the determination made in the judgment. The classic expression of the primary consequence of its operation is that a "judicial determination directly involving an issue of fact or of law disposes once for all of the issue, so that it cannot afterwards be raised between the same parties or their privies" [citing Blair v Curran (1939) 62 CLR 464 at 531]. The third form of estoppel is now most often referred to as "Anshun estoppel", although it is still sometimes referred to as the "extended principle" in Henderson v Henderson. That third form of estoppel is an extension of the first and of the second. Estoppel in that extended form operates to preclude the assertion of a claim, or the raising of an issue of fact or law, if that claim or issue was so connected with the subject matter of the first proceeding as to have made it unreasonable in the context of that first proceeding for the claim not to have been made or the issue not to have been raised in that proceeding. The extended form has been treated in Australia as a "true estoppel" and not as a form of res judicata in the strict sense. Considerations similar to those which underpin this form of estoppel may support a preclusive abuse of process argument.
With the doctrine of issue estoppel in Australia understood in that way, the plaintiff submitted that the line of authority which culminated in Rogers v The Queen (1994) 181 CLR 251; [1994] HCA 42 should not preclude him from raising issue estoppel in his civil claim for damages for malicious prosecution, despite the facts that the plaintiff says the defendant is estopped from denying are facts found, or findings made, by the Court of Criminal Appeal in upholding his appeal against his conviction.
Rogers is a decision which is said to have finally settled the question whether the outcome of criminal proceedings could give rise to an issue estoppel, either of fact or law, in civil proceedings between the same parties, either after a verdict is returned by a jury following a trial on indictment, or after a verdict is delivered by a judicial officer after a summary hearing or after a hearing on indictment under s 132 of the Criminal Procedure Act 1986 (NSW). By majority, the High Court held it did not.
The plaintiff submitted that the appeal judgment in this case is "a final judgment in an adversarial proceeding" which is to be distinguished from the criminal proceedings the subject of consideration in Rogers and the earlier case of R v Storey (1978) 140 CLR 364; [1978] HCA 39. The plaintiff submitted that the appeal judgment is similar to a proceedings the subject of an application for judicial review which the authorities recognise as capable of giving rise to an issue estoppel, since here each of the nine grounds of appeal was a distinct challenge to the lawfulness of the plaintiff's trial and the conviction which resulted from it, and each of the 52 "findings" or "conclusions" the Court reached in its reasons for upholding four of those grounds, is capable of attracting an issue estoppel for that reason.
The plaintiff contends there is a clear identity of parties and an identity of issue (both issues being prerequisites for a successful claim of issue estoppel) between the proceedings initiated by the filing of a Notice of Appeal under the Criminal Appeal Act and the civil proceedings he brings by the filing of the FASC. That being the case, the plaintiff submitted that the concerns the High Court identified in Rogers at [17] as to the difficulties of applying issue estoppel in criminal proceedings consistently with the doctrine of mutuality and consistently with the availability and efficacy of other legal principles to address what might be said to be the injustice of permitting the Crown to relitigate issues finally settled in criminal proceedings, are not determinative of the question whether issue estoppel is a pleading available to him in this case. In short, the plaintiff submitted that as a matter of principle there is every justification for the appeal proceedings being treated as a criminal proceeding of a different character or type from the criminal proceedings on indictment or summary criminal proceedings, the proceedings with which the High Court was concerned in Rogers.
In the alternative, the plaintiff submitted that it would be an abuse of process for the defendant to be permitted to deny, or to refuse to admit the "findings" or "conclusions" in the appeal judgment, since to do so would necessarily invite "the scandal of conflicting decisions" and put public confidence in the administration of criminal justice in jeopardy (Rogers at 255-7 per Mason CJ and at 280 per Deane and Gaudron JJ). The plaintiff also submitted that the decision in Blair v Curran (1939) 62 CLR 464; [1939] HCA 23 (one of the seminal authorities to which the plurality referred in Tomlinson) would be undermined were the defendant permitted to relitigate any of the "findings" or "conclusions" of the Court of Criminal Appeal identified in his Reply to the Defence.

[10]

The defendant's submissions

The defendant submitted that the decision in Tomlinson does not disturb the settled principle in Rogers that no issue estoppel attaches to criminal proceedings, and that it matters not that the criminal proceedings that resulted in the plaintiff's acquittal were convened in the exercise of the Court's statutory jurisdiction under the Criminal Appeal Act and not the outcome of criminal proceedings brought on indictment under s 8 of the Criminal Procedure Act, where a verdict of acquittal might follow a jury trial or a trial on indictment presided over by a judge.
In any event, the defendant submitted the plurality in Tomlinson were not concerned with revisiting the question settled in Rogers but, as the judgment makes clear, to clarify the operation of the principle of issue estoppel in Australia by emphasising the need for strict adherence to the privity principle. As the Court emphasised, it is that principle which underpins the justice of binding a party to a prior proceeding by an issue estoppel in subsequent proceedings to which they are also party, it being assumed that they (or their privies) have been afforded the opportunity to present evidence and arguments material to the judicial determination from which the issue estoppel is said to arise. The defendant submitted that in circumstances where the Crown, as respondent to the plaintiff's appeal against his conviction, chose (as it was entitled to) not to address the issues raised by the grounds of appeal by filing an affidavit from Mr Tedeschi (assuming that Mr Tedeschi could give evidence relevant to the issues to which the appeal gave rise, or some of them, as to which the defendant submitted there might be some question), it would be productive of injustice were the defendant, as the party vicariously liable for any proven tortious conduct on Mr Tedeschi's part in these proceedings, to be prevented from relying upon his evidence in defence of that claim in circumstances where the question whether he acted maliciously and without reasonable and probable cause are the very matters that are in dispute.
The defendant submitted that, in any event, the views expressed by McClellan CJ at CL in the appeal judgment concerning Mr Tedeschi's conduct (including his Honour's finding that Mr Tedeschi acted in breach of his duties as a prosecutor when exercising the Court's statutory jurisdiction under the Criminal Appeal Act to determine, inter alia, whether the trial miscarried) involved considerations materially different from the question whether the plaintiff has discharged the onus of satisfying the Court in these proceedings that Mr Tedeschi acted maliciously and without reasonable and probable cause in instituting and maintaining the criminal proceedings against the plaintiff through to verdict. The defendant submitted, for that reason, that no issue estoppel can attach to the Court's finding that Mr Tedeschi acted in breach of his duties as a prosecutor, whether in the manner and form of his closing submissions to the jury or otherwise.
The defendant acknowledged that it is well recognised that abuse of process is a more flexible doctrine than issue estoppel, and that the categories of abuse that might attract its application are not closed. The defendant submitted, however, that it would not be an abuse of process for it to seek to contradict some of the findings made, conclusions reached or even the views expressed by the Court in the appeal judgment, since to do so would neither be oppressive to the plaintiff nor would it bring the administration of justice into disrepute (see Batistatos v Roads and Traffic Authority (NSW) (2006) 226 CLR 256; [2006] HCA 27 at [1], [9]; PNJ v The Queen (2009) 193 A Crim R 54; [2009] HCA 6 at [3]).
The defendant submitted that the approach it has taken in its filed defence does not challenge the finality of the Court of Criminal Appeal's finding that the jury's verdict was unreasonable and could not be supported having regard to the evidence led at trial. Neither does it challenge the order quashing the plaintiff's conviction or the verdict of acquittal that was entered. The defendant further submitted that the approach it has taken in these proceedings does not challenge the Court's determination that the plaintiff's trial miscarried for the reasons the Court gave in upholding the four substantive grounds of appeal, inter alia, by reason of errors made by the trial judge (Grounds 7 and 8) or the conduct of Mr Tedeschi as the Crown Prosecutor (Ground 6). Rather, the defendant submits it is entitled to demonstrate that the plaintiff has not satisfied the doctrinal requirements of issue estoppel according to the strict principles which govern its operation.
Underpinning that submission is the uncontroversial proposition that the Court of Criminal Appeal was not concerned with whether the criminal proceedings against the plaintiff were instituted or maintained maliciously and without reasonable and probable cause by a prosecutor or prosecutors as to whose tortious conduct the defendant might be vicariously liable. The Court was concerned with whether, after an adjudication on the soundness of the jury's verdict in accordance with the principled approach in SKA, the plaintiff's conviction should be set aside in exercise of the Court's statutory jurisdiction under s 6(1) of the Criminal Appeal Act and/or whether the trial had miscarried and whether a retrial should be ordered in exercise of its jurisdiction under s 5 of the Criminal Appeal Act.
In summary, it is the defendant's submission that because neither the principles of issue estoppel nor abuse of process have any relevant application in proceedings where the issue is whether the plaintiff has discharged the civil onus of proving, consistent with the principles in Briginshaw, that he was prosecuted for Ms Byrne's murder maliciously and without reasonable and probable cause, it is not precluded in defence of that claim from inviting this Court to make different findings of fact (and/or mixed fact and law) to those made by the Court of Criminal Appeal in exercise of its jurisdiction under the Criminal Appeal Act.

[11]

Is the claim in issue estoppel or abuse of process made out?

In resolving whether the defendant is estopped in respect of all, some or none of what are said by the plaintiff in his Reply to be the 52 findings (or conclusions) in the appeal judgment, it is for the plaintiff to demonstrate that three fundamental requirements are satisfied in respect of each of them.
In Kuligowski v Metrobus (2004) 220 CLR 363; [2004] HCA 34 at [21] (adopting Lord Guest's formulation of the elements in Carl Zeiss Stiftung v Rayner & Keeler Ltd (No 2) [1967] 1 AC 853 at 935) the High Court identified the three essential requirements of an issue estoppel as: (1) that the same question has been decided; (2) that the judicial decision which is said to create the estoppel was final; and, (3) that the parties to the judicial decision or their privies were the same persons as the parties to the proceedings in which the estoppel is raised or their privies.
The satisfaction of the second requirement is not in contention in these proceedings. In Grierson v The Queen (1938) 60 CLR 431; [1938] HCA 45 at 434 Rich J observed that a person's entitlement to appeal to the Court of Criminal Appeal from a criminal conviction or sentence was founded in the Criminal Appeal Act, concluding at 434 that "the jurisdiction of the Court of Criminal Appeal is confined within the limits of the Act, and that when the Court has heard an appeal on its merits and given its decision the appeal cannot be re-opened".
At 435-436 Dixon J stated: The jurisdiction is statutory, and the court has no further authority to set aside a conviction upon indictment than the statute confers. The Criminal Appeal Act of 1912 N.S.W. is based upon the English Act of 1907. It does not give a general appellate power in criminal cases exercisable on grounds and by a procedure discoverable from independent sources. It defines the grounds, prescribes the procedure and states the duty of the court. The statute deals with criminal appeals rather as a right or benefit conferred on prisoners convicted of indictable offences and sets out the kind of convictions and sentences from which they may appeal and lays down the conditions on which they may appeal as of right and by leave and the procedure which they must observe. It limits the time within which appeals and applications for leave to appeal may be brought, subject, however, to a discretionary power in the court to extend the period except where the sentence is capital. The grounds or principles upon which the court is to determine appeals are stated, and the duty is imposed on the court of dismissing an appeal, unless on those principles it determines that it should be allowed. The determination of an appeal is evidently definitive, and a conviction unappealed is equally final. (Emphasis added.)
The controversy centred on the first and third requirements of issue estoppel.

[12]

The identity of issue

Aside from the controversy arising from the plaintiff's submission that issue estoppel can arise from the final determination of criminal appeal proceedings and that Rogers can be distinguished on that basis, the defendant submitted that the legal and factual issues that presented for determination in the appeal proceedings, and those that present in these proceedings, are fundamentally different. This is said to follow not least because the evidential and legal framework within which the legal and factual issues were litigated in the Court of Criminal Appeal, and those that are being litigated in these proceedings, differ in fundamental respects.
So far as the evidential framework is concerned, the evidence adduced by the Crown at trial and the evidence adduced on the Appeal (the evidence upon which the judgment of the Court of Criminal Appeal was predicated) was supplemented in these proceedings by a vast quantity of evidence tendered by both parties as relevant to the particular legal and factual issues that arise on the pleadings and the way the proceedings were conducted. The additional evidence included evidence from Mr Tedeschi in each of his three statements (the third in excess of 100 pages) and his evidence under cross-examination in which he addressed the plaintiff's claim that his conduct was tortious, in particular that his conduct as the Crown Prosecutor at the plaintiff's trial evidenced malice.
The defendant also adduced evidence from Det Insp Jacob and A/Prof Cross in which they addressed their respective roles in the investigation into Ms Byrne's death prior to the formal institution of the criminal proceedings against the plaintiff for her murder following Mr Tedeschi's advice to Mr Cowdery as the Director of Public Prosecutions in February 2006 that a prosecution should be commenced. Their evidence was in addition to the evidence they each gave in the appeal proceedings. Their evidence was adduced by the defendant, inter alia, to meet the plaintiff's case that they were also prosecutors to whom liability for malicious prosecution should attach.
In the submissions filed by the parties in November 2016 (at a time when it was proposed by the defendant that the question of issue estoppel and abuse of process should be heard and determined as a separate question under r 28.2 of the Uniform Civil Procedure Rules 2005 (NSW)), the defendant observed that if the issue(s) estoppel pleaded in respect of the 52 "findings" or "conclusions" in the Reply were upheld, Mr Tedeschi and A/Prof Cross would be effectively deprived of the opportunity of giving any evidence in answer to the adverse findings made by the Court of Criminal Appeal, both as to their credit and their professional reputations. Upon it being resolved, inter partes, that the defendant's application for the determination of the separate question would not be pressed (it being the agreed position that it was not possible for the Court to meaningfully resolve whether issue estoppel attached to any or all of the findings pleaded in the Reply until the evidence in the proceedings was tendered or adduced, and until the matters said to attract an issue estoppel were revealed by the conduct of the defendant's case) it would appear that no further thought was given to the impact of the plaintiff's claim of issue estoppel before Mr Neil SC opened the defendant's case and evidence was called from each of Det Insp Jacob, A/Prof Cross and Mr Tedeschi. It was not until final submissions that the issue was revisited.
Understandably, Mr McClintock SC's cross-examination of each of Mr Tedeschi, Det Insp Jacob and A/Prof Cross was conducted on the basis that the defendant was not estopped from putting in contest any of what were said by the plaintiff to be the 52 "findings" or "conclusions" in the appeal judgment. In particular, the cross-examination of Mr Tedeschi was conducted on the basis that the defendant was not estopped from putting in contest the Court's finding that the plaintiff was denied a fair trial because of his failure in his closing submissions to comply with prosecutorial standards, and that in other respects he had misconducted himself as the Crown Prosecutor in his conduct of the plaintiff's trial. The structure of Mr McClintock's cross-examination of Mr Tedeschi sought to expose him as having repeatedly and deliberately breached prosecutorial standards of fairness in his preparation of the Crown case for trial and in his conduct of the trial in multiple respects additional to the adverse findings by the Court of Criminal Appeal to make good the submission, ultimately put, that his conduct as a prosecutor was evidence of malice.
In their written submissions, neither of the parties addressed how the Court should approach the evidence of Mr Tedeschi, A/Prof Cross or Det Insp Jacob in the event that the defendant is estopped from denying (or not admitting) all or some of the findings of the Court of Criminal Appeal. In addition, in the event that all three were found to be prosecutors, neither of the parties addressed which (if any) of the 52 "findings" or "conclusions" are relevant to or eloquent proof of malice in the institution and maintenance of proceedings against the plaintiff without reasonable and probable cause. Instead, the final submissions of both parties were predicated on the assumption that the evidence of each of the three alleged prosecutors was available to be considered on that question without any qualification as to what it was capable of proving about the legal elements of the tort of malicious prosecution.
It was only in the defendant's final written submissions that the matters raised in the Reply were dealt with comprehensively. Those submissions supplemented the submissions the defendant furnished in support of the application for the determination of the separate question in 2016. The plaintiff advanced no submissions additional to those furnished on the defendant's application for the determination of the separate question in November 2016, save as to assert in pars 611 and 612 of his final submissions that he relied upon all of the pleaded "findings" of the Court of Criminal Appeal to establish an "objective" absence of reasonable and probable cause by each of Mr Tedeschi, Det Insp Jacob and A/Prof Cross and all of the findings "against Mr Tedeschi and A/Prof Cross" to prove malice and the "subjective" absence of reasonable and probable cause.
In its submissions, the defendant emphasised that it is the plaintiff's obligation to identify, and with precision, the identity of issue between the findings relied upon in the appeal judgement and the issues that are the subject of contest in these proceedings to which the issue estoppel is said to attach, together with the requirement that the plaintiff establish an identity of parties in each of the proceedings. In the defendant's submission the plaintiff has failed to do both.
Upon the analysis which follows, the plaintiff's failure to analyse and articulate in unambiguous terms the basis upon which there is said to be an identity of issue between the appeal proceedings and these proceedings is exposed, a failure which I am satisfied is fatal to his claim in issue estoppel. This is in part due to his failure to do any more than to baldly assert what was put at pars 611 and 612 of his submissions rather than to demonstrate how each of the 52 "findings" or "conclusions" of the Court of Criminal Appeal pleaded in the Reply are issues that necessarily arise for determination in these proceedings and that those issues are identical to those "findings" or "conclusions".
In Ramsay v Pigram (1968) 118 CLR 271; [1968] HCA 34, at 276, Barwick CJ encapsulated what is involved in identifying the relevant identity of issues between two proceedings in the following way: Long standing authorities, in my opinion, warrant the statement that, as a mechanism in the process of accumulating material for the determination of issues in a proceeding between parties, an estoppel is available to prevent the assertion in those proceedings of a matter of fact or of law in a sense contrary to that in which that precise matter has already been necessarily and directly decided by a competent tribunal in resolving rights or obligations between the same parties in the same respective interests or capacities, or between a privy of each, or between one of them and a privy of the other in each instance in the same interest or capacity. The issue thus determined, as distinct from the cause of action in relation to which it arose, must have been identical in each case. (Emphasis added.)
The same citation is relevant to the separate requirement that the plaintiff establish an identity of parties (as to which see later at [134]).
As the plurality in Kuligowski observed at [47], while it is immaterial to an assessment as to whether the doctrine of issue estoppel applies that there may be difficulties in identifying, with precision, the evidence that was accepted or rejected by the Court in the prior proceedings in the course of reaching a decision as to matters of fact or law that were in issue, as the extract from the judgment of Barwick CJ in Ramsay v Pigram at 276 makes clear, for an estoppel to operate, the identity of issue must be certain.
A related feature of the inquiry into whether the plaintiff has demonstrated a precise identity of issue between what was determined in the appeal judgment and the issue(s) in these proceedings involves the Court making an assessment of the quality or the nature of the particular "finding" or "conclusion" in the appeal judgment to which an issue estoppel is said to attach.
In Blair v Curran at 532-3 Dixon J described the quality of the issue that must be present to give rise to issue estoppel in the following terms: Nothing but what is legally indispensable to the conclusion is thus finally closed or precluded. In matters of fact the issue estoppel is confined to those ultimate facts which form the ingredients in the cause of action, that is, the title to the right established. Where the conclusion is against the existence of a right or claim which in point of law depends upon a number of ingredients or ultimate facts the absence of any one of which would be enough to defeat the claim, the estoppel covers only the actual ground upon which the existence of the right was negatived. But in neither case is the estoppel confined to the final legal conclusion expressed in the judgment, decree or order. In the phraseology of Coleridge J. in R. v. Inhabitants of the Township of Hartington Middle Quarter, the judicial determination concludes, not merely as to the point actually decided, but as to a matter which it was necessary to decide and which was actually decided as the groundwork of the decision itself, though not then directly the point at issue. Matters cardinal to the latter claim or contention cannot be raised if to raise them is necessarily to assert that the former decision was erroneous. (Emphasis added.) In the phraseology of Lord Shaw, "a fact fundamental to the decision arrived at" in the former proceedings and "the legal quality of the fact" must be taken as finally and conclusively established (Hoystead v. Commissioner of Taxation). But matters of law or fact which are subsidiary or collateral are not covered by the estoppel. Findings, however deliberate and formal, which concern only evidentiary facts and not ultimate facts forming the very title to rights give rise to no preclusion. Decisions upon matters of law which amount to no more than steps in a process of reasoning tending to establish or support the proposition upon which the rights depend do not estop the parties if the same matters of law arise in subsequent litigation.
The difficulty inherent in the application of these concepts is to distinguish the matters fundamental or cardinal to the prior decision or judgment, decree or order (or necessarily involved in it as its legal justification or foundation) from matters which, even though actually raised and decided as the determining considerations, are not in point of law the essential foundation or groundwork of the judgment, decree or order.
The plaintiff's obligation to demonstrate the requisite identity of issue for issue estoppel to attach to any of the 52 "findings" or "conclusions" of the Court of Criminal Appeal, necessarily requires him to identify the nature of the issue or issues of fact, law or mixed fact and law ultimately decided in the appeal judgment as fundamental to the Court's decision to uphold those grounds of appeal which were successfully made out. This analytical exercise is essential since, as Dixon J observed in the passage extracted at [79] above, it is only those matters that are susceptible to being properly understood as matters "finally and conclusively established" to which an issue estoppel might attach.
Consistent with the analysis of Dixon J in Blair v Curran, the issues which it was necessary for the Court of Criminal Appeal to decide in disposition of the plaintiff's appeal, and those which were actually decided as the groundwork of the decision, are those matters of fact or law that were legally indispensable to it. Although some matters of fact or law might have been raised on the hearing of the appeal, and even referred to in the Court's decision, issue estoppel will only attach to those that are legally indispensable to the decision.
It is also critical to distinguish between evidentiary facts (even those facts that are building blocks to proof of an ultimate issue) and ultimate facts which are foundational to the decision or judgment in the prior proceeding. In Egri v DRG Australia Ltd (1988) 19 NSWLR 600 at 603 McHugh J held that: [N]o estoppel arises concerning evidentiary facts, no matter how fundamental they may have been in the chain of proof or reasoning concerning the decision on an ultimate issue.
In identifying those matters that are "finally and conclusively established" in the prior proceedings, the High Court observed in Kuligowski: [61] … The form of the first proceeding, particularly the issues joined or admitted on any pleadings, will be important. In Hoysted v Federal Commissioner of Taxation ((1921) 29 CLR 537 at 562), Higgins J said: "A point or an issue may be actually controverted, may be in actual controversy, in actual litigation, although it is not argued, or argued properly. A point may be in controversy although counsel may address no arguments to it, or may overlook certain aspects." [62] An issue admitted on pleadings or other formal process or otherwise conceded at a hearing may, from the nature of the outcome, necessarily have been decided. But what of other questions arising in the first proceeding? In Blair v Curran, Dixon J observed that a "judicial determination concludes, not merely as to the point actually decided, but as to a matter which it was necessary to decide and which was actually decided as the groundwork of the decision itself, though not then directly the point at issue". His Honour went on to distinguish findings concerning only "evidentiary facts" not the "ultimate facts" which formed the very title to rights in dispute. This analysis, with the emphasis on decision-making, would require more than non-satisfaction.
For the plaintiff to make good his claim that each of the 52 "findings" or "conclusions" identified in the Reply and said to give rise to an issue estoppel, the onus was his to satisfy the Court that they were each findings of fact, or mixed fact and law, foundational (in the sense of being legally indispensable) to the Court being satisfied that Grounds 1, 6, 7, 8 and 9 of the plaintiff's conviction appeal were made out, and then to make good the submission that they were relevantly identical to the issues that arise for determination in these proceedings.
As I have observed earlier, no analysis to make good that submission was undertaken with anything like the necessary rigour by the plaintiff in the submissions filed in April 2016 or his submissions filed in May 2017 in reply to the defendant's submissions. No oral submissions were directed to the question of issue estoppel or abuse of process at all. The plaintiff's 2016 submissions went no further than to assert that each of the paragraphs in the Reply pleaded as "findings" (each being referable to nominated paragraphs in McClellan CJ at CL's judgment) were ultimate issues of fact or law decided by the Court because they were each a "conclusion", being an "essential foundation" or "essential groundwork" (the terms were used interchangeably) to upholding either Ground 1, 6, 7, 8 or 9 of the appeal, which if put in issue (in the civil proceedings) would necessarily put in issue the correctness of the appeal judgment.
The plaintiff's submissions then addressed how, in the alternative, it would be an abuse of process to allow the defendant to deny the "conclusion", in each case because to do so would undermine the plaintiff's acquittal (Ground1) and the Court's ruling that the trial miscarried (Grounds 6,7 8 or 9).
While it does not appear that anything turns on the plaintiff having recast the "findings" in the Reply as "conclusions" in the written submissions, the cursory way the plaintiff addressed the pleading of issue estoppel and abuse of process in counsel's final submissions left a number of fundamental questions unaddressed, not the least whether any of the "findings" or "conclusions" which the plaintiff contends the defendant is estopped from denying were ultimately put in issue in these proceedings and, if so, which of them. It is not for the Court to sift through and separate from the catalogue of matters addressed in over 200 pages of submissions which of the class of 52 "findings" or "conclusions" were ultimately matters in issue, in whole or in part.
By way of example, the following submission was advanced in 2016 referable to par 16 of the Reply: The conclusion in the Appeal judgment at [759]-[760] that the photograph of the northern ledge marked "1996" tendered at the plaintiff's trial "could not have been taken before May 2003" was an essential foundation in upholding Ground 9 that there has been a miscarriage of justice in the trial of the plaintiff on account of fresh evidence and evidence undisclosed at the trial. To put this in issue again would necessarily put into issue the correctness of the Appeal judgment. The defendant is accordingly estopped from denying this conclusion in this proceeding and further it would be an abuse of process even if it is not so estopped for it to deny this conclusion since it would undermine the Appeal judgment and the Court's ruling the plaintiff's quashed conviction resulted from a trial that miscarried.
There was no issue in these proceedings that the photograph which became Ex DJ was not taken on or about 1996, as captioned, but in 2003.
By way of further example, the following submission was put in 2016 referable to par 19 of the Reply: The conclusion in the Appeal judgment at [331] that "the autopsy confirmed the absence of evidence of either alcohol or drugs in [Caroline] Byrne's blood" was essential groundwork to upholding Ground 1 that the verdict is unreasonable and cannot be supported by the evidence. To put this in issue again would necessarily put into issue the correctness of the Appeal judgment. The defendant is accordingly estopped from denying this conclusion in this proceeding and further it would be an abuse of process even if it is not so estopped for it to deny this conclusion since it would undermine the Appeal judgment and the plaintiff's acquittal.
There was no issue in the proceedings as to the terms of the toxicological report or its accuracy.
A more egregious example is the following submission put in 2016 referable to par 23 of the Reply: The conclusions in the Appeal judgment at [797]-[809] that evidence about Georgiou that showed his prior acts of dishonesty and that Detective Inspector Jacob had provided a letter of support for Georgiou in respect of his evidence at the plaintiff's trial should be admitted at the appeal as fresh evidence that had not previously been disclosed to the plaintiff before or during his trial were essential foundations in upholding Ground 9 that there has been a miscarriage of justice in the trial of the plaintiff on account of fresh evidence undisclosed at the trial. To put these in issue again would necessarily put into issue the correctness of the Appeal judgment. The defendant is accordingly estopped from denying these conclusions in this proceeding and further it would be an abuse of process even if it is not so estopped for it to deny these conclusions since it would undermine the Appeal judgment and the Court's ruling the plaintiff's quashed conviction resulted from a trial that miscarried.
What has not been accounted for in the plaintiff maintaining the submission that each of the 52 "findings" or "conclusions" are relied upon to establish an objective and/or subjective absence of reasonable and probable cause in the prosecution of him by each of Mr Tedeschi, Det Insp Jacob and A/Prof Cross (and that all of the findings as they concern Mr Tedeschi and A/Prof Cross are relied upon in proof of their malice such that the defendant is issue estopped from denying any of them) is that it was at the plaintiff's initiative in the course of the hearing, that par 16.51 of the FASC was amended so as to contend only that Det Insp Jacob did not disclose to the plaintiff's lawyers the criminal history of Angelo Georgiou before or during the trial. As amended that paragraph reads as follows: 16.51 The defendant did not disclose to the plaintiff's lawyers the criminal history of prosecution witness Angelo Georgiou before or during the trial or that Detective Inspector Jacob had provided a letter of support for Georgiou for the purposes of Georgiou's criminal proceedings.
There was no corresponding amendment to the pleading in par 23 of the Reply, or any modification or qualification of the submission concerning it.
It is not for the defendant, and even less for the Court, to attempt to align the "conclusions" or the "findings" pleaded in the Reply as attracting an issue estoppel with what are said by the plaintiff to be foundational or essential groundwork to the Court's decision in the appeal judgment, or with the plaintiff's pleaded case in the FASC, or to attempt to align them with the matters ultimately put in issue in the proceedings as reflected in final submissions.
In the plaintiff's 2016 submissions, the argument that was advanced and said to be in conformity with the principled approach in Blair v Curran was that because the Court of Criminal Appeal was required to inquire into the nature of the evidence led at trial and the conduct of the trial and, because the Court concluded that the evidence did not support a finding of guilt beyond reasonable doubt and that the conduct of the trial was, in particular respects, productive of unfairness, it follows that each of the 52 findings that were foundational to, or the essential groundwork in the disposition of the appeal, are the ultimate issues of fact or law for the purposes of issue estoppel. As noted above, in his final submissions the plaintiff's counsel did not revisit the requirement that there be a demonstrated identity of issue between the ultimate issue of fact or law in the appeal judgment and the issues in these proceedings, and no oral submissions were directed to the specific issues raised by the matters pleaded in the Reply at all.
At pars 495-502 of the defendant's final submissions the difficulties that were encountered in meeting the plaintiff's implied assertion that the pleadings served to identify the issues to which the estoppels are said to attach were detailed. They included: 1. The defendant is entitled to proceed on the assumption that the matters of fact alleged in pars 16 and 17 of the FASC are what the plaintiff relies on as the basis of his civil claim for damages. The Reply cannot serve that purpose since none of the paragraphs in the Reply are, in a positive sense, responsive to any matters of fact raised in the filed Defence. 2. The plaintiff has failed to demonstrate how each or any of the "findings", "conclusions" or "propositions" from the appeal judgment necessarily arise for determination in the plaintiff's civil claim. The breadth of the claim that they all do will not suffice. The lack of specificity deprives the submission of any persuasive weight. 3. The fact that some of the "findings", "conclusions" or "propositions" extracted from the judgment of McClellan CJ at CL might be relevant to whether the plaintiff can prove the legal elements of the tort of malicious prosecution against one, or more than one, of the alleged prosecutors against whom he alleges tortious conduct is not enough for the defendant to be estopped from contending that those "findings", "conclusions" or "propositions" do not bind it as a party to the civil proceedings. 4. The "findings", "conclusions" or "propositions" cited in the Reply as attracting an issue estoppel are sourced, verbatim, from the reasons of McClellan CJ at CL, although many are deprived of the context from which they acquire their meaning and all lack the precision necessary to create the identity of issue fundamental to an issue estoppel.
In my view, each of these submissions is well made. A further and fundamental problem inherent in the pleadings is the plaintiff's failure to identify, with the requisite precision, the relationship between the facts alleged in pars 16 and 17 of the FASC and proof of the legal elements of the tort of malicious prosecution and/or how each of what are said to be the 52 "findings" or "conclusions" in the appeal judgment in the Reply are relevant to proof of those elements, either directly or by inference. Without forging that evidential link, the requirement that there be a precise identity of issue between the findings or conclusions in prior (criminal) proceedings and the later (civil) proceedings before an issue estoppel can attach is not made out.
Save as to state in the plaintiff's submissions in reply that the plaintiff "joins issue" with the defendant's submissions summarised at [98] above, there was no attempt to grapple with what the defendant identified in its submissions as significant discrepancies between the FASC and the Reply due, in part, the defendant submitted, because the "findings" or "conclusions" in the Reply do not correspond with relevant paragraphs in the FASC, and no attempt was made to demonstrate how each of the 52 "findings", "conclusions" or "propositions" extracted from the appeal judgment necessarily arise for determination in the civil proceedings.
By way of example the defendant submitted as follows: 497. For example, in paragraph 3 of the Reply the plaintiff pleads that the defendant is issue estopped from denying the finding of the CCA that the evidence adduced at the plaintiff's trial did not establish beyond reasonable doubt that Caroline Byrne did not take her own life. This is a reply to the defendant's non-admission of paragraph 16.6 of the ASC which alleges that "At no time between June 1995 to the date of the plaintiff's conviction in November 2008 was the defendant, the New South Wales Police or the Crown Prosecutor in a position to adduce evidence excluding the reasonable possibility that Caroline Byrne committed suicide". The proposition in paragraph 3 of the Reply cannot even be described as a component of a broader allegation in paragraph 16.6 of the ASC. [Paragraph 16.6 of the ASC reads: "At no time between June 1995 to the date of the plaintiff's conviction in November 2008, was the defendant, the New South Wales Police or the Crown Prosecutor in a position to adduce evidence excluding the reasonable possibility that Caroline Byrne committed suicide."] The two propositions, while related, are substantially different. In substance, paragraph 3 of the Reply involves a wholly new allegation of fact, with an accompanying assertion that the defendant is issue estopped from denying that fact.
For the plaintiff to submit in reply to the defendant's submission extracted above that the determination by the Court of Criminal Appeal that there was insufficient evidence to establish beyond reasonable doubt that Ms Byrne took her own life is a necessary consideration in determining the allegation pleaded in par 16.8 reflects a fundamental failure to appreciate the plaintiff's obligation to demonstrate, as a doctrinal prerequisite to establishing issue estoppel, a precise identity of issue between the matter to which the estoppel is said to attach and a matter in issue in the civil proceedings. The lack of clarity in the analysis of the plaintiff's counsel in final submissions appears to stem both from a failure to appreciate the need for the pleadings to be the source of that precision, and a failure to appreciate the particular legal context in which the issues of fact and law that presented for adjudication on the appeal arose, and how they were resolved by the Court in exercise of its statutory jurisdiction under the Criminal Appeal Act.
Further, the difference between the specific legal and factual issues that framed the Court's consideration of Ground 1 on the appeal, and the legal and factual issues that frame the plaintiff's civil claim for damages in these proceedings, were not addressed in the plaintiff's submissions and no analysis was applied to them.
The issues raised by the plaintiff's appeal against conviction and the resolution of those issues in the appeal judgment need to be understood in the context of the specific legal and factual issues that governed the appeal and the evidence that was available to the Court of Criminal Appeal on the hearing of the appeal. What is critical to appreciate is that the reasoning employed by McClellan CJ at CL in concluding that each of Grounds 1,6,7,8 and 9 were made out cannot be divorced from both the general context in which the issues raised by those grounds of appeal arose for adjudication, namely a jury trial where the Crown had the burden of proving guilt beyond reasonable doubt, coupled with the legal and factual context framing the various grounds of appeal.
As I have already emphasised, Ground 1 was an appeal brought pursuant to s 6(1) of the Criminal Appeal Act which contended that the verdict of the jury should be set aside because it was unreasonable, or could not be supported having regard to the evidence.
In SKA the High Court considered the nature of such an appeal. The majority of the Court (French CJ, Gummow and Kiefel JJ) held, following M v The Queen (1994) 181 CLR 487; [1994] HCA 63 at 493, that the appellate court was to determine for itself, weighing the whole of the evidence led at trial, whether the evidence was such that it was open to a jury to conclude beyond reasonable doubt that the applicant was guilty of the offence(s) with which they were charged. Consistently with the approach in M, their Honours at [406] described the appellate court as undertaking an independent assessment of the evidence led at trial, both as to its sufficiency and its quality, in order to determine whether, notwithstanding that there is evidence upon which a jury might convict, in all the circumstances it would be dangerous to allow the verdict of guilty to stand.
In the plaintiff's appeal, the Court adopted the approach described in SKA and M (see [49] of the judgment of McClellan CJ at CL). In undertaking an assessment of the whole of the evidence led at trial, his Honour emphasised that the Crown case was entirely circumstantial in the sense that: [I]t relied solely upon evidence of facts from which the jury was asked to draw inferences, which in turn were said to provide the foundation for the ultimate fact in issue - namely, whether or not the accused killed Ms Byrne.
His Honour explained the approach of the Court to making an assessment of a case based on circumstantial evidence at [53] in the following terms: [T]he trier of fact must bear in mind that a circumstantial case is to be considered holistically: R v Hillier [2007] HCA 13; (2007) 228 CLR 618 at [48]-[49] (Gummow, Hayne and Crennan JJ). Putting to one side for the moment "indispensable" intermediate facts (as to which see Ground 5), it would be wrong for a jury to acquit an accused merely because it harbours reasonable doubts about some inculpatory evidence, though it ignores or unduly minimises other, more compelling evidence of the accused's guilt. As it is often the case that "one piece of evidence ... resolves doubts as to another" (Chamberlain v The Queen [No 2] [1984] HCA 7; (1984) 153 CLR 521 at 535 (Gibbs CJ and Mason J)), it is necessary to weigh and consider the totality of the evidence: Hillier at [48]-[49]. In doing so, the finder of fact ought not stretch credulity or engage in tortuous reasoning in order to explain away each and every individual circumstance as being consistent with innocence: R v Micallef [2002] NSWCCA 480; (2002) 136 A Crim R 127 at [42] (Dunford J); Burrell v R [2009] NSWCCA 193 at [55] (Giles JA).
After assessing all of the evidence led at the plaintiff's trial and the inferences capable of being drawn from that evidence, his Honour concluded that he was not satisfied beyond reasonable doubt of the plaintiff's guilt and, for that reason, the verdict of the jury could not be maintained. The reasoning his Honour employed in reaching that conclusion was summarised at [56]: In the analysis that follows, I have resisted any temptation to consider the case against the accused in a piecemeal way. In my view, this is a case where doubts about each piece of circumstantial evidence are reinforced, rather than resolved, by the rest of the prosecution's case. I have also borne in mind the deference due by an appeal court to the combined experience and commonsense of a jury that convicts an accused person on the basis of circumstantial evidence alone: Burrell at [64]4651 (Giles JA); Chahine v R [2006] NSWCCA 179 at [88] (Johnson J, McClellan CJ at CL and Hoeben J agreeing); R v Kaldor [2004] NSWCCA 425; (2004) 150 A Crim R 271 at [2] (Dunford J). However, my evaluation of the whole of the evidence satisfies me that the jury's verdict cannot be supported. I am not satisfied beyond reasonable doubt of the applicant's guilt. Although the jury heard from various witnesses the applicant did not give evidence. I do not believe the jury's verdict can be explained by any advantage which they had which was not available to this Court.
By way of further example, par 16.56 of the FASC reads as follows: The defendant prosecuted the plaintiff despite the fact that the case against him was entirely circumstantial, and where doubts about each piece of circumstantial evidence are reinforced rather than resolved by the rest of the prosecution case. The defendant through the Crown Prosecutor and Detective Inspector Jacob must reasonably have had these doubts in light of their extensive experience in criminal matters.
While it is clear enough that the fact that is asserted in par 16.56 is that Mr Tedeschi and Det Insp Jacob must reasonably have had doubts about the sufficiency of the Crown's circumstantial evidence case, and that for that reason they prosecuted the plaintiff without reasonable and probable cause, it is only in the pleading of issue estoppel in the Reply that the phrasing of the nature and extent of the doubt they should have had and that the defendant is estopped from denying, is shown to have been drawn directly from the judgment of McClellan CJ at CL.
Paragraph 27 of the Reply is expressed as follows: In response to the pleading in paragraph 61 of the defence that pleads to paragraph 16.56 of the further amended statement of claim filed 21 February 2017: a. the defendant is issue estopped from denying the finding of the Court in the Appeal judgment at [56] that "this is a case where doubts about each piece of circumstantial evidence are reinforced, rather than resolved, by the rest of the prosecution's case" that was a necessary finding in upholding Ground 1 to enter a ground of acquittal; and b. further for the defendant to deny the finding referred to in paragraph a. above would be an abuse of process.
In relying on this aspect of his Honour's judgment as a "finding" or "conclusion" which the defendant is estopped from denying, what the plaintiff seemingly ignores is what his Honour was at pains to emphasise, namely that his view was formed after applying his analysis to all of the evidence relied upon by the Crown at trial and, most critically, through the prism of the jury's verdict. This is the legal task mandated by the High Court in SKA as the approach an appellate Court is obliged to take to its statutory function under s 6(1) of the Criminal Appeal Act. It is a discrete task inherently different from the resolution of the legal and factual issues raised by the plaintiff's civil claim for damages for malicious prosecution.
Later in McClellan CJ at CL's judgment, his Honour referred to the Court's obligation to consider the sufficiency and quality of the circumstantial evidence relied upon by the Crown to support and sustain the jury's verdict: [378] The prosecution case against the applicant was circumstantial. The High Court emphasised in Hillier at [46] that when considering a circumstantial case "all of the circumstances established by the evidence are to be considered and weighed in deciding whether there is an inference consistent with innocence reasonably open on the evidence." [379] In Chamberlain [No 2] at 535 Gibbs CJ and Mason J said: "In a case depending on circumstantial evidence, the jury should not reject one circumstance because, considered alone, no inference of guilt can be drawn from it. It is well established that the jury must consider 'the weight which is to be given to the united force of all the circumstances put together: per Lord Cairns, in Belhaven and Stenton Peerage (1875) 1 App Cas 278 at 279." [380] In the course of these reasons I have considered the many aspects of the prosecution case. They have, of necessity, been separately discussed for the purpose of determining the contribution which they together make to the entire prosecution case. Of primary significance to that case is a conclusion that the applicant was with Ms Byrne at the Gap when she died.
At [386]-[387] his Honour's ultimate conclusions were expressed as follows: [386] Ms Byrne died when she landed on the rocks at the base of the Gap. To my mind whether she voluntarily fell or was thrown cannot be determined from the expert evidence. Although the evidence of Whelan suggested that Ms Byrne may have recovered from her previous depressive episode in which she attempted suicide, there was considerable evidence that she was very depressed at the time and had previously attempted suicide. I am not persuaded beyond reasonable doubt that she did not take her own life. [387] I have reviewed the entirety of the evidence at the trial and have expressed my view about the significance of many parts of it. Having regard to the entirety of the evidence I have concluded that the verdict of the jury cannot be supported. To my mind the circumstances do not establish beyond reasonable doubt that the applicant murdered Ms Byrne.
At par 3 of the Reply the plaintiff cites [386] of the judgment as the source of the Court's "finding" that the evidence adduced at the plaintiff's trial did not establish beyond reasonable doubt that Ms Byrne did not take her own life. I have already noted the plaintiff's reliance on that paragraph as the source of what is said to be one of 52 "findings" the defendant is estopped from denying and the plaintiff's apparent failure to appreciate the obligation imposed on him to identify, within that finding, a precise identity of issue with an issue in the civil proceedings.
The two passages from McClellan CJ at CL's judgment extracted above also exemplify the plaintiff's failure to exercise necessary caution when extracting particular phrases from the judgment of McClellan CJ at CL and relying upon them as "findings" to which it is said an issue estoppel attaches (or when paraphrasing his Honour's reasoning for the same purpose). This has led to what I regard as a generalised lack of precision in the identification of issue between the "findings" of the appeal court and the matters in issue in these proceedings as a prerequisite in making good a claim that issue estoppel attaches.
As a composite pleading, what the plaintiff has failed to confront in those paragraphs of the Reply where reliance is placed upon his Honour's "findings" or "conclusions" in dealing with Ground 1, is that the exercise McClellan CJ at CL was engaged in was an assessment, through the prism of the jury's verdict, of the evidence for what it was capable of proving about the facts in issue at the plaintiff's trial and whether, in the ultimate, the evidence was capable of proving the plaintiff's guilt beyond reasonable doubt. If, after having reviewed the evidence for its sufficiency on this basis, including the nature and quality of the evidence and its reliability, the Court expresses a doubt as to guilt, it will usually conclude that the jury should also have experienced that doubt, unless the jury's advantage in seeing and hearing the evidence can account for the difference.
While in the exercise of its jurisdiction under s 6(1) of the Criminal Appeal Act the Court is engaged in a fact finding exercise, the Court of Criminal Appeal did not convene a re-hearing of the trial. As the High Court emphasised in Grierson in the passage extracted above at [64], the jurisdiction being exercised when hearing an appeal against conviction is wholly statutory. The exercise of that jurisdiction is also evaluative, with the burden on the appellant of persuading the Court that appellate intervention is called for, and with the task to be undertaken by the Court being referable to its assessment of the evidence available at the conclusion of the trial, and to the criminal burden and standard of proof.
In the way McClellan CJ at CL expressed himself when considering the factual matters relating to Ground 1, he had concerns about the sufficiency of particular evidence and the flaws in the adequacy of other evidence and how that impacted upon the balance of evidence relied upon by the Crown as foundational to proof of the Crown case, an approach entirely consistent with the Court's appellate jurisdiction and its legal task and function.
Other grounds of appeal alleged errors of law which, if made out, would justify quashing the conviction and a retrial, only four of which are relevant for the purposes of the issue estoppel asserted in the Reply.
Ground 6 was that the trial miscarried by reason of the prejudice occasioned by the Crown Prosecutor in his closing submissions.
At [575] McClellan CJ at CL considered the role of the appellate court in determining whether a miscarriage of justice had occurred by reason of the submissions of a Crown Prosecutor. His Honour referred to Libke v R (2007) 230 CLR 559; [2007] HCA 30 where, at [81], Hayne J explained that the critical question for the appellate court is whether there has been a "miscarriage of justice". In the context of the facts of Libke (which concerned inappropriate comments made by the prosecutor in the course of cross-examination of the accused), the question framed by Hayne J was: "did the making of these comments, either standing alone, or in conjunction with other aspects of the prosecutor's cross-examination of the appellant, make the trial unfair?". At [575] McClellan CJ at CL made particular reference to what Hayne J said in Libke at [83], posing the question whether comments made by the Crown were "comments that suggested (whether directly, or indirectly, by appealing to prejudice or passion) that the jury should follow some impermissible path of reasoning". Upon reviewing Mr Tedeschi's closing submissions as a whole, McClellan CJ at CL was satisfied that he had failed to comply with the required standards of prosecutorial fairness, thereby denying the plaintiff a fair trial. This conclusion was based on an assessment of many different criticisms of the closing address made by the plaintiff's senior counsel on the appeal, only some of which were accepted by his Honour.
Ground 7 contended that the trial judge erred both in leaving murder on the basis of joint criminal enterprise to the jury and in failing to properly identify the basis upon which a verdict of guilty should be reached on application of that principle of criminal liability. At [679] McClellan CJ at CL set out the relevant principles governing an allegation of criminal liability based on joint criminal enterprise. His Honour was satisfied, based on the state of the evidence at the close of the trial, that there was no evidence to establish a joint criminal enterprise to kill in which the plaintiff was complicit and, on that basis alone, a new trial would have been justified.
Ground 8 in the appeal was that the trial judge erred in allowing the Crown to present evidence and make submissions suggesting that Ms Byrne's knowledge of details relating to the Offset Alpine fire was a motive for the offence of murder. At [702]-[703] McClellan CJ at CL was satisfied that the Crown's submissions on the question of motive were speculative and of little probative value, and that the prejudice occasioned by them was not sufficiently dealt with by the trial judge's summing up or his directions. In the result his Honour was satisfied that the Crown's theory as to motive created "insurmountable prejudice in the minds of the jury" and that would also have justified the quashing of the conviction and the ordering of a new trial.
Ground 9 alleged that a miscarriage of justice resulted from fresh evidence and evidence not disclosed at the plaintiff's trial. The fresh evidence included a book that had been written by A/Prof Cross after the trial about his role in the prosecution of the plaintiff. The significance of the book was explained by McClellan CJ at CL at [716]-[717]: [716] The Crown conceded, as it must, that the book by A/Prof Cross and a lecture that he posted on his website constitute fresh evidence. The evidence of A/Prof Cross was important in the Crown case. From his process of experimentation, physical measurement and deduction the Crown sought to persuade the jury that the possibility that Ms Byrne committed suicide could be excluded. To the extent that his evidence may have differed from that of the experts called by the defence, if A/Prof Cross's credit were diminished, the likelihood of the jury accepting his evidence would have been reduced. [717] My reading of the book and the lecture leads me to the conclusion that if it had been available at the trial, it would have significantly diminished A/Prof Cross's credibility. In the book A/Prof Cross makes plain that he approached his task with the preconception that, based on his behaviour, as reported after Ms Byrne had died, the applicant had killed her. He clearly saw his task as being to marshal the evidence which may assist the prosecution to eliminate the possibility of suicide and leave only the possibility of murder. The book is replete with recitations of his role in solving the problem presented by the lack of physical evidence and records how he was able to gather the evidence which enabled the prosecutor to bring proceedings against the applicant.
McClellan CJ at CL reached the conclusion at [730] that "the book which A/Prof Cross published has the consequence that his opinion on any controversial matter has minimal if any weight".
Ground 9 required the Court of Criminal Appeal to assess whether the fresh evidence, including in the form of the book, warranted a new trial on the basis that there had been a miscarriage of justice because the jury was not privy to the information contained in the book which would have been relevant to their assessment of A/Prof Cross's credibility and reliability as an expert witness. His Honour was satisfied that the fresh evidence would have warranted a new trial since "if the book and the speech had been available to the defence and the extent of A/Prof Cross's partiality made apparent, his evidence would have been assessed by the jury to be of little if any evidentiary value on any controversial issue" ([758]).
In considering the connection between the issue raised by Ground 9 on the appeal and the issues in these proceedings, it is important to note that there is no allegation in the FASC that the fresh evidence considered at the appeal was available to the prosecution before or during the course of the trial. That is significant given that the plaintiff's case is that the defendant acted maliciously and without reasonable and probable cause in initiating and maintaining the prosecution. Although the FASC lacks specificity as to the time at which the prosecution was wrongfully "maintained", this cannot extend beyond the date of conviction. None of the persons identified in the FASC as prosecutors could rationally be said to be responsible for "maintaining" the prosecution after conviction.
There are at least two aspects of the tort, as explained in A v NSW, that assume particular significance for the purposes of considering the issues estoppel said to arise from the appeal judgment. The first is that the cause of action is concerned with the state of mind of the prosecutor. The second is that it is concerned with the actions and state of mind of the prosecutor, at particular points in time, in instituting or maintaining a prosecution. Any allegations of malice and the absence of reasonable and probable cause must necessarily be directed to the particular act of instituting the prosecution, or the act of maintaining a prosecution at a particular time, and with a prosecutor's particular state of mind in considering the available evidence in support of the prosecution at that time.
It is uncontroversial that a similarity between the nature of issues arising in the later proceedings with those that presented in the earlier proceedings will not suffice for issue estoppel to arise. The law's concern with finality is strictly limited to maintaining the finality of the precise issue that has been judicially determined. Issue estoppel does not operate to prevent a party to litigation from litigating an issue that is similar, or even substantially similar, to one that has been previously decided. Thus the significance of the requirement that the identity of issue be certain and precise.
In this case, the issues that arise for determination include whether the facts and circumstances pleaded in pars 16 and 17 of the FASC referable to the body of evidence that was assembled in the course of the investigation (only some of which was adduced at the plaintiff's trial), and the inferences to be drawn from that evidence establish that one, or more than one, of the three alleged prosecutors instituted and maintained criminal proceedings against the plaintiff for murder without reasonable and probable cause and maliciously. In the Court of Criminal Appeal (and, in particular, so far as concerns the first ground of appeal) the issue was whether the Court considered that there were such deficiencies in the nature and quality of the evidence led by the Crown in proof of the plaintiff's guilt that the jury's verdict that his guilt had been proved beyond reasonable doubt was unreasonable and could not be supported having regard to the evidence. While the defendant accepts that there is some similarity in the nature of the issues with which the Court of Criminal Appeal was concerned and those that arise for determination in these proceedings (given that the evidential framework within which the legal issues arise are intrinsically linked), there are also material and significant differences.
After the pleadings are subjected to the necessary close, focused and rigorous analysis that application of the doctrine of issue estoppel requires, I am not persuaded that issue estoppel attaches to any of what the plaintiff contends in the Reply are the factual "findings" or "conclusions" in the appeal judgment (or any mixed findings of fact and law), there being no sufficiently precise or certain identity of any ultimate issue of fact or law between the criminal appeal proceedings and these proceedings that the plaintiff has identified.

[13]

The identity of parties

Having resolved to the view that there is no identity of issue to which the plaintiff's claim for issue estoppel could attach, or none that the plaintiff has identified in the pleadings with anything approaching sufficient precision or certainty, I do not intend to deal at length with the competing submissions of the parties as to whether there is an identity of parties. Although the resolution of that question is not free from doubt, I am inclined to the view that the plaintiff has not made good his submission that that element, as the second of two elements essential to making out his claim in issue estoppel, is also proved.
It was common ground in this case that the defendant in these proceedings is the Crown in right of New South Wales, the plaintiff's claim that he was maliciously prosecuted being brought against the defendant under the title "State of New South Wales" according to ss 3 and 5 of the Crown Proceedings Act. It is the plaintiff's case that the parties to the proceedings (as to which he contends an issue estoppel attaches) are identical since the proceedings on indictment (for murder) were prosecuted on behalf of, and in the name of, "the Crown" according to s 8 of the Criminal Procedure Act and the challenge to that conviction also brought against the Crown.
In the plaintiff's submission, the fact that the criminal proceedings were conducted by the Director of Public Prosecutions who, in accordance with s 9(4) of the Director of Public Prosecutions Act 1986 (NSW) is deemed to be a prosecutor with respect to those proceedings, does not change the fundamental fact that it is the Crown who was party to the criminal proceedings, both on indictment and as respondent to the proceedings brought by the plaintiff in challenging his conviction under the Criminal Appeal Act.
The plaintiff advances the further submission that although Pts 3 and 4 of the Vicarious Liability Act operate so as to abolish the requirement for proof of tortious conduct on behalf of prosecutors acting in the service of the Crown and who would, but for its operation, be personally liable as tortfeasors, that is irrelevant to the question at issue here, namely the proper identification of the parties to both sets of proceedings (namely, these proceedings and those brought under the Criminal Appeal Act).
It is the defendant's submission that the operation of the Vicarious Liability Act does have a direct bearing on the question since s 8(1) of that Act makes clear that Mr Tedeschi was not the "Crown" at the plaintiff's trial but was acting as a delegate for the statutory entity who prosecuted the charge on behalf of the Crown, namely the Director or Public Prosecutions (see s 7(1)(a) of the Director of Public Prosecutions Act and s 5(1)(a) of the Crown Prosecutors Act 1986 (NSW).
The defendant submitted that the role of the Director of Public Prosecutions in exercise of his statutory duties is analogous to the role of the Attorney General who may seek to enforce a public right or liberty by representing Her Majesty's subjects, not the body politic of the government in which he or she holds office, thus emphasising the Attorney's separate role even though they appear by the same counsel as the State. [1] In the defendant's submission, the Director of Public Prosecutions, in exercising a statutory function in prosecuting an indictable offence on behalf of the Crown (and in representing the interests of the Crown in that capacity when proceedings are brought in the Court of Criminal Appeal under the Criminal Appeal Act) does so perforce his independent statutory office, not by representing the Crown in the right of New South Wales. I accept that submission.
As seminal authority provides, the clearest expression of it being Ramsay v Pigram, it is for the party asserting an issue estoppel to satisfy the separate requirement that the parties are identical, as well as emphasising the requirement that there be a precise identity of issue.
In the defendant's further submission, in this case, as in Ramsay v Pigram, the only class of privy is that of a "privy in interest", the basic requirement of which being that the privy must claim under or through the person of whom he is said to be a privy. Although Ramsay v Pigram, on its facts, does not bear any relevant comparison to the facts in issue here, in the defendant's submission the case illustrates why the defendant State cannot be the privy of Mr Tedeschi (or any of the other putative prosecutors) merely because the State might be vicariously liable for such tortious conduct as they might be held responsible for as prosecutors in the service of the Crown. In the defendant's submission, the State is not, by that relationship, constituted as their (or, in the case of Mr Tedeschi, his) privy.

[14]

Conclusion on the question of issue estoppel

It is hardly surprising that the facts, assertions of fact or conclusions particularised in par 16 of the FASC under the heading of "Malice" and repeated in par 17 under the heading "Absence of Reasonable and Probable Cause" are expressed in similar terms to the appeal judgment since they are in large part extracted from McClellan CJ at CL's reasons for judgment. However, the mere similarity in the issues that presented for determination in the appeal proceedings and the issues raised by the pleadings in these proceedings does not satisfy the requirement that there be an identity of ultimate issues of facts (or mixed fact and law) between the appeal proceedings, in which it is said the ultimate issues were determined, and these proceedings in which the issue estoppel is said to arise. The plaintiff's claim for issue estoppel fails. I am also of the view that the plaintiff's claim that it would be an abuse of process for the defendant to seek to answer the case mounted against it should be rejected. I accept the defendant's submission that Rogers is authority for the proposition that no issue estoppel attaches to criminal proceedings and that the appeal judgment is so characterised.
The question of issue estoppel having been settled adverse to the plaintiff, to the extent that any of my findings of fact are consistent with the findings of McClellan CJ at CL, Latham J or Rothman J in their treatment of the plaintiff's grounds of appeal, my findings are predicated on the evidence that has been tendered and adduced by the parties in these proceedings. These proceedings are not concerned with the plaintiff's guilt or the sufficiency of the evidence at his trial to prove it. That question has been resolved conclusively in his favour by his acquittal. These proceedings are concerned with the evidence before me (including the evidence of each of the alleged prosecutors) and what that evidence proves or fails to prove about the elements of the tort of malicious prosecution that are in issue and, if liability for that tort is made out against one or more of the prosecutors for whom the defendant is vicariously liable, what the evidence proves or fails to prove about the plaintiff's entitlement to damages and their assessment.

[16]

The identity of the alleged prosecutors

The plaintiff makes his claim for damages against three alleged prosecutors (Det Insp Jacob, A/Prof Cross and Mr Tedeschi), each of whom he submits were, at different stages and at different times between about 1996 and 2008, involved in the institution and maintenance of the criminal proceedings against him for Ms Byrne's murder, maliciously and without reasonable and probable cause.
A claim, made for the first time in final submissions, that Mr Tedeschi, A/Prof Cross and Det Insp Jacob were "jointly and severally liable" in damages for the tort of malicious prosecution (the FASC making no such allegation) was not ultimately pressed. In the plaintiff's submissions in reply it was made clear that it was no part of his case that either of Mr Tedeschi, Det Insp Jacob or A/Prof Cross agreed, either expressly or impliedly, to prosecute him maliciously and without reasonable and probable cause. Accordingly, in determining whether the tort has been established against any of the three prosecutors, the acts said to constitute the tortious conduct of one putative prosecutor must be considered separately from the acts alleged against the other two.
Det Insp Jacob was the officer who had carriage of the continuing investigation into Ms Byrne's death under the rubric "Strike Force Irondale" over three successive phases from 18 June 1998. He is also the author of a Sufficiency of Evidence Report dated 8 January 2004, furnished initially to Det Sgt Berry of the State Crime Command, Operational Legal Support Division, for his opinion as to whether advice should be sought from the Director of Public Prosecutions that the available evidence supported a prosecution of the plaintiff for murder. In the Sufficiency of Evidence Report Det Insp Jacob expressed his concluded view that there was "a cogent circumstantial prima facie case" against the plaintiff for murder.
In March 2004, the administrative approval of Det Sgt Berry having been obtained for the referral of the case to the Office of the Director of Public Prosecutions (ODPP), the Sufficiency of Evidence Report and the accompanying brief of evidence was furnished to the ODPP. As the Senior Crown Prosecutor of New South Wales, Mr Tedeschi was assigned the task of furnishing an advice to Mr Cowdery in his statutory role as the Director of Public Prosecutions as to the sufficiency of the evidence to prosecute the plaintiff for Ms Byrne's murder. The Sufficiency of Evidence Report was fully indexed to an accompanying brief of evidence. It was tendered in these proceedings. Mr Tedeschi's advice was not produced, legal professional privilege having been claimed. The plaintiff did not challenge that claim.
Between March 2004 and February 2006, Det Insp Jacob was the officer responsible for liaising with the ODPP and answering requisitions from Mr Tedeschi, and his instructing solicitors, in advance of Mr Tedeschi furnishing the advice sought by the Director. Det Insp Jacob continued in a liaising role throughout the course of the preparations for committal and the preparations for trial and during the course of the trial.
On 28 February 2006, Mr Tedeschi furnished his written advice to Mr Cowdery that the available evidence was, in his opinion, sufficient to commence proceedings against the plaintiff for Ms Byrne's murder. It is the plaintiff's case that Mr Tedeschi became a prosecutor for the purposes of the tort of malicious prosecution as and from the date upon which that advice was furnished.
The advice Mr Tedeschi furnished to Mr Cowdery was provided pursuant to s 5(1)(c) of the Crown Prosecutors Act. Pursuant to s 5(1)(a) Mr Tedeschi also appeared on the Director's behalf as senior prosecuting counsel in the committal proceedings and, following the plaintiff's committal for trial to this Court, Mr Tedeschi appeared as senior prosecuting counsel at the plaintiff's trial. He conducted those proceedings in that capacity through to verdict.
On 1 March 2006, Det Insp Jacob was advised of Mr Cowdery's determination that there was sufficient evidence to support a charge of murder, and of his further undertaking that the ODPP would prosecute the plaintiff for that offence were he to be extradited from the United Kingdom to New South Wales.
On 3 March 2006, Ms Turner, a solicitor in the ODPP, after discussions with Mr Tedeschi, advised Det Insp Jacob that the plaintiff's solicitor should be contacted to see if he was prepared to return to Australia voluntarily. On 7 March 2006, Det Insp Jacob recommended to State Crime Command that Mr Tedeschi's advice not be followed and that an arrest warrant should be applied for to support the plaintiff's extradition from the United Kingdom. That proposal was supported by the Commander, Homicide Squad State Crime Command and the Manager, Operations Coordination State Crime Command.
On 24 March 2006, Det Insp Jacob applied for the issue of a Court Attendance Notice and a warrant for the plaintiff's arrest. The arrest warrant was executed in London on 3 April 2006. The plaintiff did not oppose his extradition. On his return to New South Wales on 3 May 2006 he was formally charged with Ms Byrne's murder.
It is the plaintiff's case that by that conduct Det Insp Jacob became a prosecutor for the purposes of the tort of malicious prosecution.
In September 2003, at a time when Strike Force Irondale had been current for some years, A/Prof Cross was formally retained by the New South Wales Police Service (at Det Insp Jacob's request) to advise as to the likely circumstances in which Ms Byrne descended to her death from the cliffs at the Gap. In about 1997 or 1998, Det Insp Wyver had sought informal oral advice from A/Prof Cross as to whether it was possible for Ms Byrne to have jumped from the cliff edge at the Gap, based on what was at that time believed to be the point from where her body was recovered, a location at the base of the cliffs which came to be referred to in the evidence at trial as "Hole B". On the basis of the distances quoted to him (namely a point of impact 9 metres from the base of a vertical cliff about 30 metres high - measurements which Sgt Powderly, the police officer who retrieved her body, estimated in his evidence at the inquest in November 1997), A/Prof Cross's advice was that Ms Byrne could have jumped to Hole B, but that she could not have been pushed over the cliff to have first impacted on the rocks at that point.
A/Prof Cross's advice in that respect was not the subject of a written report. No expert evidence was adduced at the inquest directed to the likelihood or not of Ms Byrne having jumped to her death.
A/Prof Cross's written opinion was initially sought by Det Insp Jacob in September 2003 referable to what were identified by him in his letter of instruction as the competing likelihood of a range of scenarios in which Ms Byrne might have descended to her death, including slipping, falling, jumping from a standing position, taking a running jump or being pushed or thrown. The opinions A/Prof Cross expressed in his first report were based upon Sgt Powderly's evidence at the inquest that Hole B was the point of recovery, together with a Terrestrial Photogrammetry Plan prepared by Snr Cst Streatfield on 2 March 1999 referable to that evidence.
In his first report dated 19 November 2003 ("the first Cross report"), A/Prof Cross concluded that the most likely cause of death was that Ms Byrne ran over the edge of the cliff in the dark at a point about 8m south of the safety fence where there was a 20m long approach from the west on the southern rock ledge which is flat and level and relatively free of any obstructions. He considered it a less likely possibility that she was thrown by one or two people, given that a throw speed of at least 4.34 metres per second was required to reach what he then understood to be the landing point, a scenario which A/Prof Cross considered was unlikely for a number of stated reasons.
The first Cross report was available to Det Insp Jacob as material upon which he based his conclusions in the Sufficiency of Evidence Report. The first Cross report was not included in the brief of evidence supplied with the Report, although its existence was referred to under the heading of "Miscellaneous Issues" where Det Insp Jacob noted as follows: Professor Rod CROSS - (Witness No 57) Professor Rod Cross is continuing his investigations into this matter in that he is attempting identify with a greater degree of certainty the point from which Caroline Byrne left the cliff top by closely examining the landing point and the positions/angles of the rocks at that location. Any further product will be provided in a supplementary report and provided as soon as practicable for consideration. Sen Const Michael Streatfield, Witness No 54 of the Incident Reconstruction Unit, is assisting him. Again any product generated will be provided as soon as practicable. [2]
To assist Mr Tedeschi in both formulating his advice to Mr Cowdery and then later in the course of preparing the matter for trial, Det Insp Jacob arranged, at Mr Tedeschi's request, for A/Prof Cross to furnish further expert advice both in writing and in conference. In the result, A/Prof Cross provided six further reports between July 2004 and April 2008, four of which pre-dated Mr Tedeschi's advice of 28 February 2006 that there was sufficient evidence to prosecute the plaintiff for Ms Byrne's murder.
The second Cross report, dated 26 July 2004, was furnished after the Sufficiency of Evidence Report was forwarded by Det Insp Jacob to the Director of Public Prosecutions but before Mr Tedeschi's advice to Mr Cowdery. It was furnished after new information suggested that Sgt Powderly had been mistaken and the Coroner had been misled as to the point of impact or the point of recovery of Ms Byrne's body after which Sgt Powderly nominated Hole A, 4 metres north east of Hole B, as the correct point of recovery.
In the second report, A/Prof Cross also proposed a different launch site from the cliff edge as the only possible launch site having regard to what he described as the "revised landing spot". [3] In his view, the new data was consistent with only two possible conclusions as to the circumstances in which Ms Byrne descended to her death, the most likely being that she was "spear thrown" at high speed by one or two adult males from a small ledge to the north of the landing spot. This became known as "the northern ledge". [4] He considered it a less likely possibility that Ms Byrne could have jumped from the northern ledge after a short run-up of no more than 5 metres, and only then if she had the athletic ability to execute the jump and land head first at Hole A.
It will be necessary to refer in detail to the first Cross Report and the circumstances in which it was sought and provided, the circumstances in which the six further reports were also sought and provided, and the contents of those reports, it being the plaintiff's case that A/Prof Cross's conduct as a forensic consultant renders him a prosecutor for the purposes of the tort. It will not be necessary to consider at length the circumstances in which the point of recovery/point of impact was reappointed from Hole B to Hole A, given the plaintiff's ultimate submissions on the subject. That said, reference to the process by which the landing point was reappointed is unavoidable.
That process, including what is said by the plaintiff to be A/Prof Cross's involvement in it, is also material to an assessment of the plaintiff's submission that from at least September 2003 A/Prof Cross became progressively embedded in the police investigation into Ms Byrne's death in such a way as to constitute himself a "de facto police officer" acting in the service of the Crown; a factual finding fundamental to the plaintiff's claim that the defendant is vicariously liable for his tortious conduct as a prosecutor (see s 8 of the Vicarious Liability Act). That issue only arises if the plaintiff makes good his primary case that A/Prof Cross is a prosecutor.

[18]

The appointment of Hole B as the point of recovery

At 4:40am on 8 June 1995, after an extensive search of the cliff face and the rocks at the base of the cliff by Sgt Powderly as the senior officer of the Police Rescue Unit, using specialist light sources, Ms Byrne's body was found with her head and upper torso (including her shoulders and arms) wedged between some large rocks some distance from the base of the cliff. Her legs and feet were extended at an angle towards the cliff face. Rigor mortis was advanced. [5] The retrieval of her body was hampered by the prevailing weather conditions, including the rising tide and gathering swell and by the extent to which her body was wedged in the rocks.
Immediately upon her body being extracted it was placed in a body bag, sealed, secured on a stokes litter and lifted from the base of the cliff to the cliff top from where it was transported by government contractors to the morgue. No photographs were taken or notes made of the process of recovery or the precise position (between the rocks) at the base of the cliffs from where Ms Byrne's body was recovered. No measurements were taken at that time (or in the days and weeks that followed) of the distance from the recovery point to the base of the cliffs, or the distance from that position to the cliff top. No photographs were taken of the area in daylight and no contemporaneous statement was taken from Sgt Powderly, or the other officers who assisted him, that may have served to appoint the recovery point with precision. [6]
It was not until 29 May 1996 that a video reconstruction of the process of recovery was filmed, which included Sgt Powderly's appointment of Hole B as the crevice in the rocks where Ms Byrne's body was wedged. [7] This was also the crevice Sgt Powderly nominated in his evidence at the inquest in November 1997 as the point of recovery. [8]
Det Insp Wyver gave evidence in these proceedings that in May 1996, when he was allocated the reinvestigation into the death of Ms Byrne at the Coroner's request before the inquest and at the direction of Det Insp Kennedy of the Homicide Unit South Region, he requested Sgt Powderly and other members of the Police Rescue Squad to conduct a re-enactment of the recovery of Ms Byrne's body with the intention that this would generate media interest in the investigation.
He gave evidence that his purpose at that time was twofold: to prepare the matter for the inquest and to identify the two fishermen who had spoken to police at Watsons Bay in the early hours of 8 June 1995 without any police officer taking their details or making a note of the information they provided. The two fishermen, Mr Wano and Mr Brunetta, identified themselves to police as a result of the broadcast of the re-enactment.
Although Sgt Powderly gave evidence at the inquest, no questions were asked of him directed to interrogating the accuracy of his appointment of the place from where the body was recovered, a position appointed by him and confirmed by Cst Camden who was present and assisted him in the creation of the video reconstruction of the process of the recovery of the body. Neither were there questions asked of him to test the reliability of his opinion as to the position on the cliff edge where he considered Ms Byrne was likely to have launched herself, or to have been launched from, to have impacted head first into the rocks below at Hole B. It is useful to set out his evidence in full at this stage.

[19]

Sgt Powderly's evidence at the inquest

Sgt Powderly was a member of the Police Rescue Squad. As at the date of the inquest he had held that position for 16 years. He gave evidence of the training involved in executing cliff rescues from heights and depths which he described as fairly extensive. He said he had carried out in the vicinity of 40 to 50 major cliff rescues, 15 or 16 of which were at the Gap at Watsons Bay. [9]
He gave detailed evidence of the light sources that were used to search for Ms Byrne's body at the base of the cliff. Put simply, the light which comprised a series of optical lenses enabled a defined circle or square of light to be focused in a way that does not dissipate over distance. This operates in contrast to a thousand watt ordinary torch light which, even if mounted at height, dissipates over distance, losing continuity of focus in the process. Sgt Powderly also gave evidence that although the Lifesaver One helicopter was deployed in the course of the search, it was not the light shone from that aircraft that served to locate Ms Byrne's body because the extent of mist also had the effect of dissipating the aircraft's light over distance. [10]
Sgt Powderly gave detailed evidence of the process of "sweep[ing]" the cliff the cliff wall with the specialist light that were undertaken. He described the rock formations at the bottom of the cliff in what he described as the "northern area" as covered with growth which tends to darken the colour of the rocks to dark brown or black. It was against that contrast that he eventually detected what he described as a "discolouration" through the lens of the optical device. He confirmed with the helicopter pilot by radio that they should back away from the area so that he could focus on the discolouration which, after he positioned himself at what was described as the "optimum point" on the cliff top to focus on that area, he ultimately came to identify as the soles of a pair of shoes. He had already scaled the safety fence with the light when he made that first identification which as he moved into a different position enabled him to take a "side on view". [11] He then saw what he described as: [A] part of the leg, a small part beneath the bottom of the black pants that she was wearing, and the white shoes, and the white shoes stood out quite clearly. [12]
He was emphatic in his evidence at the inquest that neither Ms Byrne's shoes nor legs were discernible from the cliff top by using other than a specialised light source. He said even the police Maglite torches which had been sent down to him by rope dissipated into the mist at the bottom of the cliffs, even at close range.
He confirmed that he was at the base of the cliffs for a period of 45 minutes where he undertook a preliminary examination of Ms Byrne confirming that she was deceased. [13] He said he examined her legs as they were the only part of her body that he could see (her head and shoulders being wedged between the rocks). He said there did not appear to be any injuries from her waist to her feet. He said there was nothing in the area of her body of a "personal nature" and he checked it very carefully. He said: There were some body markings on the rock at the start of the crevice, one of the side rocks of the crevice. [14]
He made his assessment and formed the opinion that the first landing was as Ms Byrne had gone "into the crevice". [15] He said: There [were] no other indications - things I examined were torn clothing, any body injuries … that may have suggested bouncing off the rocks, there was no indication on other rocks. [16]
He said that while he was at the base of the cliff he looked at the top of the cliff in order to make an approximation of the point from which she fell. He formed the opinion that Ms Byrne had: [C]ome from a corner point at the top of the cliffs at the northern end of the Gap as it starts to break away to head around towards the Gap bluff. [17]
He said that point was proximate to the point where he stood on the cliff ledge on the seaside of the safety fence with the light source when he identified Ms Byrne's shoes, then her legs and pants.
Sgt Powderly made it clear in his evidence that it was only when he returned to the Gap on 29 May 1996 with members of the police video unit that he undertook the task of approximating the distance from the base of the cliff to what he described as the point of first landing and the point from which her body was recovered. Even at that stage, no actual measurement was taken but he estimated it to be approximately nine to ten metres. [18] He was asked whether in his opinion there was anything unusual about that distance, as to which he said as follows: My opinion is that it's a long way out. I am not into the physics of long jumps and that type of thing and I don't know whether we could follow that up but it seems because of her light frame, the narrow area where I formed the opinion that she had come off the top of the cliffs, I would have felt that a sufficient run-up may have been required to get that far. [19]
The Coroner asked Sgt Powderly whether he could estimate, having retrieved a lot of bodies from the Gap in other "jumping cases", what the likely or average distance from a building or cliff that a body is found. He said: [I]t is hard to answer, sir, and I base it this way, that we've had people go to cliff areas and buildings that can step straight off and go. There is a natural trajectory and if any sort of forward movement is produced, the person is not going to fall stone straight down, they will go out in a trajectory. Having a look at the distance of this, and I indicated in the video and in my evidence it's a sheer cliff face there at that part of the Gap, we found it a little bit hard to conceive at the time that somebody with her light frame and with an off-shore breeze blowing in could project some 30 feet out. [20]
The Coroner then asked if that was possible with a decent run-up, to which Powderly said: It'd want to be a good run-up, sir, yes, but again I can't comment on the physics of that type of thing. [21]
The Coroner then asked the following: Q: Assume for a moment rather than take a run at it she was thrown over, wouldn't it be just as hard to achieve that type of distance out. A: It's not inconceivable that that couldn't happen and again, like with the running, I can't really comment - Q: Either way, to you it's difficult to see how she got so far out? A: Yeah. I have done previous rescues, say in the centre of the Gap where I first stood doing that interview with the video and where I first commenced the search, and I have found people there and the distance out to the water's only about 6 or 7 metres and I've found people 4 or 5 feet out from the base of the cliff. [22]
The Coroner then volunteered that he had spoken to a forensic pathologist about it, who had reported back to him that he believed it was possible. So far as the possibility that Ms Byrne was thrown to her death, the Coroner ventured the view with which Sgt Powderly agreed, that "it'd be a decent sort of a heave". [23]

[20]

The plaintiff's position on the Hole A/Hole B issue in these proceedings

To the extent that there is a continuing controversy between the parties for the purpose of these proceedings as to which of the two crevices or holes is the correct location as a matter of objective fact, the plaintiff did not invite the Court to resolve whether, on the balance of probabilities (or referable to some other standard of proof), Hole A or Hole B was the correct cavity.
The plaintiff submitted that the continuing significance of the controversy is relevant only to whether he has discharged the onus of establishing that the proceedings were initiated and maintained in the absence of reasonable and probable cause. The plaintiff does not seek to make a case that the change of recovery location from Hole B to Hole A in mid-2004 of itself establishes malice, in the sense that it is not alleged that there was any conspiratorial agreement between A/Prof Cross, Sgt Powderly, or anyone else for that matter, to deliberately change the point of recovery, or even that there might have been any subtle suggestions to that end. Instead, it is plaintiff's case that it was not open to the Crown at trial to make its case that Ms Byrne was thrown to her death in a "spear throw" from the northern ledge on the basis that Hole A was the actual point of recovery, or for the Crown to rely upon Sgt Powderly's evidence as to the circumstances in which he recovered Ms Byrne's body to confirm Hole A as the actual point of recovery. The plaintiff submits that with the identification of Hole A not occurring until January 2004 at the earliest, and April 2004 at the latest, and with the process of identification of the point of recovery (or the landing point) at that time from the cliff top as inherently unreliable, there remains the reasonable possibility that the actual point of recovery was a different location on the rock floor altogether, necessarily raising doubts about the location of the point of first landing. The plaintiff submitted elsewhere in his final submissions that the Crown could not in any event disprove the reasonable possibility that Ms Byrne's body became wedged in the rocks (either Hole A or Hole B) as a result of wave activity, thereby raising the real possibility that she jumped to her death from a standing position somewhere on the edge of the cliff in the horseshoe shaped topography of the Gap and that an objective absence of reasonable and probable cause for murder proceedings to have been initiated and maintained for that reason is established.
The plaintiff submitted that the change in the appointment of the point of recovery from Hole B to Hole A is also illustrative of the inadequacies in the police investigation and, in that way, the issue is also relevant to proof of the absence of reasonable and probable cause, together with what are said to be doubts about the truthfulness of various witnesses as to the circumstances in which the change of recovery location was identified and disclosed which is said to be, in some unspecified way, relevant to the issue of malice. I note this was a submission advanced in writing during the course of the proceedings although how A/Prof Cross, Det Insp Jacob or Mr Tedeschi's evidence on the question is said to lack veracity was not at that time made clear nor was it addressed in final submissions.
It was in the course of the plaintiff developing in his submissions in reply how liability is said to attach to Det Insp Jacob and A/Prof Cross as prosecutors that the circumstances in which Hole A became appointed as the "correct cavity" was revisited. Of course, in the event that neither Det Insp Jacob nor A/Prof Cross is found to be a prosecutor, that question becomes somewhat academic since it is not suggested that Mr Tedeschi played any role in the circumstances in which Hole A was nominated as the point of recovery. As Mr Tedeschi made clear in his evidence, and as is obvious from the transcript of the trial proceedings, as the Crown Prosecutor he was concerned to establish that Ms Byrne could not have jumped or dived to her death in order to have ended up wedged head first and waist deep into a rocky crevice on the rock floor, a situation that obtained irrespective of whether her body was recovered from Hole A or Hole B. It was Mr Tedeschi's evidence in these proceedings that the preponderance of evidence established that Ms Byrne's body was recovered from, and indeed first impacted on the rock floor at Hole A. Mr Tedeschi gave evidence in re-examination as to the basis upon which he assessed the sufficiency of the evidence to establish that fact: Q. Did you understand in the context of the evidence that Mr Duval was explaining he and Mr Wood would alternate in doing series of bench presses? A. Yes, that was my understanding of his evidence. Q. Did you consider that evidence to be a sufficient basis for you in your closing address to the jury to submit to them, in effect, that Mr Wood could easily lift 100 kilos? A. Yes. Q. I don't think you ever suggested that Mr Wood could lift 120 kilos? A. I don't think I did. Q. In relation to the caption on the photograph figure 17 I showed you in your evidence-in-chief, the one which showed an aerial photo of the northern ledge and the caption I'm not quoting verbatim but, relevantly, it said the photo was taken in about 1996, did you ever have any reason to doubt the correctness of that caption during the period of the trial? A. No, I had no reason to doubt it and nothing had been communicated to me to suggest that it was in any way inaccurate. It was not in any way challenged by the defence at the trial. I had no reason to doubt that it was taken in about 1996 and, based on the evidence of Mr Bird, it showed the condition of the northern rock ledge as at 1995. Q. My learned friend put to you accurately that you had asked Professor Cross in chief in relation to photos that you tendered that there would be evidence the photos were taken in 1995; do you recall that? A. I'm not sure if I put to him that they were taken in - that it was taken in 1995 or that it showed the condition of the ledge in 1995. I can't recall. Q. If I ask you to assume that the question was framed in the context, "There will be evidence that photos were taken in 1995" just for the purpose of my question. A. Yes. Q. The next assumption I'll ask you to make is so far as is known there were no photos taken in 1995 of the northern ledge-- A. Yes. Q. --that the prosecution had. A. Yes. Q. Were you attempting to mislead or misrepresent the evidence? A. No, I wasn't. I think what I had in mind is that I was of the view that the photographs showed the condition of the northern rock ledge as at 1995 and I was going to be calling evidence of that. Q. When you were calling evidence in chief from Professor Cross did you make any intentional or deliberate decision to call his evidence in a way that would tailor it so as to conceal from the jury any difficulty with his evidence that you recognised in your mind could be a real problem for the prosecution case? A. No, I didn't. Q. You've said to her Honour why it was that the Crown position from your opening address on what I'll refer to generically as the state physically of Ms Byrne at the time she went over the edge of The Gap differed from the submission you put to the jury on that matter in your closing address and you have given an explanation about that matter. What I want to ask you is this. Your position having changed on that particular matter was that connected with a change in the evidence that was not available to you at the time of your opening address as compared with at the time of your closing address? A. I don't think it was a change in the evidence that was available to me, Mr Neil. I think it was more that when you're in a criminal trial for as long as that one went for, for three months, during the course of the trial you necessarily get a greater awareness of the significance of different parts of the evidence. You become so familiar with the material that I think you have an understanding of it that's more developed than when you're merely preparing for trial, and I think that what happened, looking at my submission to the jury in my closing address, what happened is that during the course of the evidence I formed the view that based upon my developing understanding of the evidence it was more likely that she was unconscious or incapacitated when she went over the cliff. So it wasn't a change in the evidence, it was more a, a development of my understanding of it. Q. I'd ask you to assume - and if you want to look at it I can show it to you - that among the reasons for the change you gave to the jury in your closing address was certain evidence of Dr Duflou, D U F L O U, who had been called by the defendant. A. Yes. I think he gave evidence of some defensive injuries, didn't he? Q. He said there were some injuries that might be consistent with defensive injuries but if I could take you, please, to page 11198 and I'm taking you to the answer that begins at about line 10 but directing your particular attention to the last sentence commencing at line 18 or perhaps the sentence that commences, "For that matter as well almost certainly if a person goes down head first." Do you see that material? A. "A person goes down head first" that part? Q. That part to the end of that answer. A. Yes. Yes. Q. Do you remember you refer to that evidence, in fact, in your closing address? A. Your memory of it is better than mine. Q. I've got the document more or less in front of me. A. If I, if I mentioned that as one of the reasons why it was more likely that she was unconscious or incapacitated, then that certainly played a role in the evolution of my thinking and looking at the evidence now what Dr Duflou seems to be saying is that for anybody going down head first in those situations if they're conscious and able to move there's a reflex of putting out of the hands and he would expect there to be severe hand injuries and arm injuries which, in her case, was lacking so, yes, that - I accept that that was part of the evidence that I referred to when I addressed the jury as to why it was more likely that she was unconscious or incapacitated. [24]
Even were there some residual doubt attending that question, leaving open the possibility that Ms Byrne may have been recovered from Hole B (a doubt which I do not have), Mr Tedeschi gave evidence that it was his view that even then suicide had been disproved, and beyond reasonable doubt, given the "core findings" of A/Prof Cross which he considered valid and supportable.
Leaving to one side, for the moment, consideration of the plaintiff's claim that in the period before 28 February 2006 (the date of Mr Tedeschi's advice to Mr Cowdery) A/Prof Cross dishonestly and intentionally misled Mr Tedeschi (and/or Det Insp Jacob) intending that they would commence a prosecution against the plaintiff for Ms Byrne's murder, conduct which the plaintiff submitted is, as a matter of law, sufficient for A/Prof Cross to be a prosecutor for the purposes of the tort of malicious prosecution (as to which see later), the plaintiff advanced his claim in malicious prosecution against Det Insp Jacob and against Mr Tedeschi as prosecutors on two bases.

[22]

Det Insp Jacob

As noted above, it is the plaintiff's case that Det Insp Jacob's application for the issue of the Court Attendance Notice on 24 March 2006 charging the plaintiff with Ms Byrne's murder, and the application for the issue of a warrant for his arrest and extradition from the United Kingdom on that charge, coupled with the execution of that warrant and the plaintiff being charged with murder on 3 May 2006, is conduct which constitutes him as a prosecutor. The plaintiff submitted that Det Insp Jacob does not avoid liability for the tort of malicious prosecution for the role he played in the initiation of the criminal proceedings against the plaintiff for Ms Byrne's murder simply because, by 24 March 2004, Mr Tedeschi had advised Mr Cowdery that a charge of murder should be laid, and that Mr Tedeschi became a prosecutor for the purposes of the tort as and from that date.
The plaintiff submitted that, having been arrested and charged with Ms Byrne's murder by Det Insp Jacob and with his knowledge of the brief of evidence upon which the charge of murder was based, including six of the seven report of A/Prof Cross that had been furnished by that date and which the plaintiff submitted the Court would find was Det Insp Jacob's knowledge of A/Prof Cross's deceptive and dishonest conduct in furnishing those reports, he should be regarded as a prosecutor.
The plaintiff submitted that the brief of evidence compiled by Det Insp Jacob and which accompanied the Sufficiency of Evidence Report provided to the ODPP in January 2004, and the available inferences that ought be drawn from that body of material, also establishes (objectively) an absence of reasonable and probable cause for Det Insp Jacob to have initiated criminal proceedings against him for Ms Byrne's murder. The plaintiff further submitted that the Court would be satisfied that Det Insp Jacob had no subjective belief that the evidence warranted him being prosecuted for murder and, that being the case, the Court would make the further finding that he was prosecuted by Det Insp Jacob for an ulterior or improper purpose amounting to malice.

[23]

Mr Tedeschi

The plaintiff submitted that since Mr Tedeschi's advice to Mr Cowdery on 28 February 2006 that proceedings for murder should be commenced was based upon the brief of evidence compiled by Det Insp Jacob furnished with the Sufficiency of Evidence Report, including the requisitions Mr Tedeschi made of the investigating police before furnishing that advice and his conferences with A/Prof Cross both at that time and during his preparations for trial, the Court would also find Mr Tedeschi had no subjective belief that a criminal prosecution of the plaintiff for murder was warranted. Additionally, even were the Court not persuaded that the plaintiff had established that Mr Tedeschi lacked a genuine belief that a prosecution for murder was warranted, the plaintiff submitted there was such a demonstrable absence of reasonable and probable cause in that material that malice should be imputed to Mr Tedeschi as prosecutor for that reason.
The plaintiff further submitted that the defendant is liable for Mr Tedeschi maintaining the prosecution of him for murder through to his conviction. In attributing liability as a prosecutor to Mr Tedeschi in that capacity, the plaintiff submitted that the evidence that Mr Tedeschi adduced at trial, including the manner in which it was adduced, establishes either or both an objective absence of reasonable and probable cause in the maintenance of the proceedings or Mr Tedeschi's lack of any genuine or honest belief that the evidence, as assembled, warranted the maintenance of the prosecution. The plaintiff relied upon the inferences that he contends can be drawn from the developing state of the Crown brief of evidence prior to the trial, and from a range of contemporaneous documents, including the trial transcript (coupled with what he contends are the adverse inferences arising from Mr Tedeschi's evidence in these proceedings) to make good his claim that Mr Tedeschi maintained the proceedings against him maliciously and without reasonable and probable cause
One of the issues raised by the plaintiff's case insofar as it involves Mr Tedeschi as prosecutor is the role of the prosecutor at law and the legal duties by which a prosecutor is bound, including the prosecutor's role in deciding the evidence that will be adduced in proof of the allegation that a person has committed a crime; how that evidence should be adduced; and the submissions that may legitimately be put in advancing the Crown case that a verdict of guilty should be returned.
It is the plaintiff's case as pleaded and particularised in par 16 of the FASC that Mr Tedeschi breached his obligations as a prosecutor in a number of defined respects, breaches which in some respects mirror the findings of the Court of Criminal Appeal that he misconducted himself as a prosecutor causing the trial to miscarry. Mr Tedeschi's misconduct (being conduct the plaintiff submitted this Court would find proved independently of the adverse findings made by the Court of Criminal Appeal) is relied upon by the plaintiff in these proceedings, both to establish Mr Tedeschi's lack of a genuine belief in the sufficiency of the evidence to support a case of murder and as evidence of his malice in prosecuting the plaintiff through to verdict on that charge.

[27]

A/Prof Cross as a prosecutor

The defendant submitted, however, that even were the plaintiff successful in establishing that A/Prof Cross was a prosecutor, which was denied, the Court would not be satisfied that he was at any relevant time acting in the service of the Crown (as required by s 8(1) of the Vicarious Liability Act) and that, for that reason, it is not liable for any tortious conduct that may be attributed to him. In the defendant's submission, the Court would comfortably find that A/Prof Cross was at all relevant times acting in a private capacity and, further, that in his capacity as an expert witness called by the Crown at trial, and by the preparatory steps he took in furnishing expert reports at the behest of NSW Police, he is immune from suit according to the principle of witness immunity, irrespective of whether his evidence was false or misleading (see Cabassi v Vila (1940) 64 CLR 130 at 141; D'Orta-Ekenaike v Victorian Legal Aid (2005) 223 CLR 1; [2005] HCA 12 at 39).
As noted above, in the course of the police investigation into Ms Byrne's murder under the command of Det Insp Jacob, and thereafter in Mr Tedeschi's preparations for trial, A/Prof Cross furnished six reports in which he variously expressed his opinion about the speed with which Ms Byrne's body was launched from the cliff top at the Gap to the rock floor. The plaintiff accepts that in applying that calculus, based as it is upon Newton's Laws of Motion, the opinions he expressed were within the legitimate reach of his expertise as a physicist. It is also apparent from a reading of the various reports of A/Prof Cross (albeit with differing degrees of obviousness from the subtle to the stark) that he proffered a range of opinions and views about matters bearing upon Ms Byrne's death that far exceeded his expertise, with some opinions being based upon nothing other than bare conjecture, surmise and expressed with hyperbole. The defendant does not contend otherwise.
Other issues upon which A/Prof Cross was either invited to express an opinion in the reports that were furnished and served (or upon which he volunteered his views) were said by the defendant to be based upon his qualifications as a "de facto" expert in the physics of sport, including biomechanics, and an "ad hoc" expert in female anatomy. The defendant submitted that A/Prof Cross's evidence about a range of matters across this spectrum of experience was admissible in the committal hearing and at trial on this basis. The defendant also submitted that these same opinions and conclusions were material upon which Det Insp Jacob and Mr Tedeschi were entitled to rely in making their assessment of the weight of the evidence to support a charge of murder.
The defendant submitted that Det Insp Jacob was also entitled to consider the first Cross report, in the context of the results of his own wide ranging investigations as the officer in charge of Strike Force Irondale, to support the decision he made that the plaintiff should be charged with murder and the administrative and legal steps to affect that decision.
The plaintiff submitted that the concept of a temporary "ad hoc" expert is not encountered in the Evidence Act and is unknown to the common law and that adoption of the concept would render obsolete the strict rules of admissibility in Part 3.3 of the Evidence Act that apply in determining whether someone is qualified to give expert evidence. To the extent that Mr Tedeschi attempted in his evidence to align the notion of a temporary expert with the "ad hoc" expert recognised in Butera v DPP (Vic) (1987) 164 CLR 180; [1987] HCA 58 (the issue there concerning voice identification), what is certain is that the category is neither open ended nor expanding. In my view, whatever else A/Prof Cross might have been permitted to venture a view about in his furnished reports beyond his expertise as a physicist, it was not open to Mr Tedeschi to justify utilising A/Prof Cross at trial as a source of evidence about the average shoulder width of an average female.
The plaintiff also submitted that a fair reading of all of the reports of A/Prof Cross would lead a cautious and prudent prosecutor to realise that A/Prof Cross had failed to comply with the Expert Witness Code of Conduct and that he ought not to have been relied upon as a Crown witness in a murder trial for that reason, quite apart from questions about his credibility and reliability as an expert witness upon whose evidence the Crown case depended.
It was common ground in these proceedings that Mr Tedeschi reached agreement with defence counsel, Mr Terracini QC, that large parts of the Cross reports, including the opinions he volunteered about a range of matters that exceeded his expertise, would not be adduced by the Crown at the trial. In the result, no objection was taken at the committal or at trial to the Crown leading evidence from A/Prof Cross as a qualified physicist (albeit with his primary area of expertise as a plasma physicist) that, on the assumption that the point of recovery of Ms Byrne's body was from Hole A, and that the first point of impact as Ms Byrne's body descended from the cliff was when she hit the large pointed rock known as "Pyramid Rock" and then slid head first into the crevice created by that rock and rock, forming Hole A (the Crown case at trial), that on the application of incontrovertible Newtonian laws (as to which A/Prof Cross was qualified to apply and from which he was qualified to reason) she must have left the cliff (whether she jumped or dived to her death) at a minimum launch speed of 4.3 m/s or, if she was thrown, at a minimum launch speed of 4.4 m/s.
In addition, no objection was taken in the committal or at trial to A/Prof Cross expressing opinions beyond his formal qualifications, in spite of the fact that it must have been obvious that significant and important aspects of his evidence concerned biomechanics - a specialist field of learning in which he neither had, nor claimed to have, any formal expertise, qualifications or training. These opinions included the capacity of a female of Ms Byrne's age, height, weight and athleticism to launch herself from the cliff top at the Gap and to arrive head first into Hole A, and the capacity of a male of the plaintiff's weight and assessed athleticism to "spear throw" Ms Byrne to arrive at the same location. On the assumption that Hole A was the point of impact/recovery (which, as I have noted, was an issue of considerable controversy at trial but which I am satisfied in these proceedings was essentially settled) the only challenge mounted by the plaintiff at his trial to the admissibility of A/Prof Cross's evidence was to him expressing an opinion about the injuries likely to have been sustained as Ms Byrne fell from a 30 metre height and then hit the rocks below. A/Prof Cross was also permitted, without objection at trial, to give evidence of a number of poolside tests where a conscious and compliant female was thrown by a male of the plaintiff's height into a swimming pool to support the conclusions he reached.
One of the substantive grounds of appeal the plaintiff advanced on his conviction appeal was that the evidence of A/Prof Cross and the opinions he expressed about a variety of matters caused the trial to miscarry. The criticisms the Court made of A/Prof Cross's evidence included that his evidence was based upon a series of unproved assumptions, the most critical being that no allowance had been made in his calculations for Ms Byrne to have been unconscious or incapacitated when she was raised at the plaintiff's shoulder height and "spear thrown" to her death. The length of the run-up to the ledge that A/Prof Cross nominated as the only launch site was also, in the view of the Court, likely to have been wrongly calculated at 4 metres and not 5 metres which, in turn, directly impacted on the possibility that Ms Byrne might have arrived at Hole A by running and jumping, assuming she had a high level of athleticism. These, amongst a number of criticisms in the approach A/Prof Cross was shown to have taken to his role as an expert witness, coupled with what the Court described as the "progressive development of [A/Prof Cross's] experiments and refinements of his theory" to support the conclusion that Ms Byrne had been thrown to her death, and what the fresh evidence adduced on the appeal revealed about his credibility, resulted in the Court concluding that his evidence was entitled to very little, if any, weight on any controversial issue. The strength of the Crown case suffered irremediably as a consequence.
Notwithstanding the approach taken by defence counsel to the admissibility of A/Prof Cross's evidence at trial, it is the plaintiff's case in these proceedings that in the phase before the criminal proceedings where initiated (respectively by Mr Tedeschi on 28 February 2004 and Det Insp Jacob on 1 March 2006), A/Prof Cross volunteered information, and supplied his opinion and advice concerning the question of how Ms Byrne descended to her death to both Mr Tedeschi and Det Insp Jacob that he knew was false or misleading, and that he did so dishonestly with the intention that they would prosecute the plaintiff for Ms Byrne's murder. The plaintiff submitted that it is that conduct the Court would be satisfied establishes that A/Prof Cross played an active role in instituting the criminal proceedings against him as a prosecutor and that, as a separate question, the Court would conclude that in so doing he acted maliciously and without reasonable and probable cause. The plaintiff relies principally on Commonwealth Life Assurance Society Ltd v Brain (1935) 53 CLR 343 as a source of authority for the attribution of liability to A/Prof Cross in this way. The plaintiff does not seek to make the case that A/Prof Cross "maintained" the proceedings maliciously and without reasonable and probable cause, but rather that his involvement after 28 February 2006 (the date of Mr Tedeschi's advice to Mr Cowdery) and throughout his involvement in the curial trial process is relevant to proof of his having acted before that date maliciously and without reasonable and probable cause.
Such conduct of A/Prof Cross's that postdates the formal commencement of the proceedings on 3 May 2006, when the plaintiff was charged by Det Insp Jacob with Ms Byrne's murder, includes his involvement with Mr Tedeschi and Det Insp Jacob in the preparation for trial and during the course of the trial; his evidence at trial; his authoring of a book entitled "Evidence for Murder: How Physics Convicted a Killer", published after the trial; his cross-examination in the Court of Criminal Appeal; and his evidence under cross-examination in these proceedings where each of the aforementioned matters was the subject of considerable scrutiny.
The plaintiff submitted that the adverse credit findings the Court would make of A/Prof Cross as a witness in these proceedings are relevant not only to proving that he acted dishonestly in his dealings with the police and Mr Tedeschi, but also if he is found to be a prosecutor in that those same adverse credit findings are relevant in proof of the fact that he had no subjective belief that the evidence (such as he was aware of it) warranted the initiation of a prosecution of the plaintiff for murder, and that he was actuated by malice in intentionally misleading police and Mr Tedeschi to that end.
Finally, the plaintiff submitted that the Court would also find that A/Prof Cross was not an independent witness acting on his own account in a business, enterprise, undertaking or activity such as to attract the exception in s 8(1)(b) of the Vicarious Liability Act, and the Court would not be satisfied that the principle of expert witness immunity is available to the defendant in this case (see D'Orta-Ekenaike). The plaintiff submitted that the role given by Det Insp Jacob to A/Prof Cross (or the role that Det Insp Jacob permitted him to assume) as a "de facto police officer" rendered his role one of being "in the service of the Crown" and that the defendant is vicariously liable for his tortious conduct pursuant to s 8(1)(a) of the Vicarious Liability Act for that reason.
The defendant submitted that the plaintiff's attempt to distinguish A/Prof Cross's role from that of the expert advisor/witness to whom immunity attaches is specious since it is self-evident that it was A/Prof Cross's expertise as a physicist, not a police officer (de facto or otherwise), that was foundational to the opinions he expressed in the corpus of his reports, each of which were furnished at a time when he is said to be liable as a prosecutor as a "de facto police officer". The defendant submitted further that his opinions are directly connected with the way the Crown prosecuted its case at the plaintiff's trial, as to which witness immunity attaches. The defendant submitted that the plaintiff cannot ignore the reality that the claims made and raised against A/Prof Cross in these proceedings are directly connected to statements he made in the course of (or in preparation for) judicial proceedings, being the opinions proffered in relation to the trial of the plaintiff for murder and, that being the case, the immunity attaches to them.

[29]

What constitutes malice?

As the High Court in A v NSW recognised, a prosecutor who has an honest belief based on reasonable grounds in the guilt of a person suspected of committing a criminal offence at the time when the decision is made to initiate proceedings, and thereafter when those proceedings are maintained, may nevertheless be shown to have been motivated to pursue the prosecution out of spite or animus, or another motive that may not be capable of precise discernment but which the plaintiff can demonstrate, by inference from the prosecutor's conduct, was (or must have been) for some illegitimate or oblique motive (see A v NSW at [95]). Proof of malice in that sense would not be sufficient for the plaintiff to succeed in his action for malicious prosecution if the prosecutor's state of persuasion about his guilt warranted setting the processes of the criminal law in motion and the evidence was otherwise capable of satisfying an objective test of sufficiency.
On the other hand, if it can be shown that one or more of the three putative prosecutors had no actual belief in the guilt of the plaintiff (that is, no honest belief that the plaintiff was probably guilty based upon grounds which a reasonable person would accept as supporting that belief) it might be more readily inferred that his sole or dominant motive in initiating and maintaining the proceedings was improper, illegitimate or oblique and, in that way, ulterior to the purposes associated with the proper invocation of the criminal law.
Further, even if the plaintiff proves that in initiating and maintaining the proceedings against him, one or more of his putative prosecutors was motivated by reason extraneous to carrying the law into effect, that will not establish malice unless that extra-curial purpose is, or probably was, the primary or dominant reason the prosecution was instituted and maintained by the prosecutor whose conduct is in question (A v NSW at [91]).
On the question of what constitutes malice, the High Court in A v NSW said: [89] Fleming rightly said that "'[m]alice' has proved a slippery word in the law of torts". It will be recalled that Lord Davey, in the passage of his speech in Allen v Flood set out earlier in these reasons, had spoken of the law giving protection to prosecutors even where there is no reasonable and probable cause for the prosecution, but losing that protection "if the person abuses his privilege for the indulgence of his personal spite". To the same general effect, Fleming said, of the use of the word "malice" in relation to this tort that: "At the root of it is the notion that the only proper purpose for the institution of criminal proceedings is to bring an offender to justice and thereby aid in the enforcement of the law, and that a prosecutor who is primarily animated by a different aim steps outside the pale, if the proceedings also happen to be destitute of reasonable cause." "Malice" in malicious prosecution is a separate element of the tort. It is to be contrasted with "malice in law" - what Kitto J described, citing Shearer v Shields, as "the unlawful intent which is present whenever an injurious act is done intentionally and without just cause or excuse". [90] No little difficulty arises, however, if attempts are made to relate what will suffice to prove malice to what will suffice to demonstrate absence of reasonable and probable cause. In particular, attempts to reduce that relationship to an aphorism - like, absence of reasonable cause is evidence of malice, but malice is never evidence of want of reasonable cause - may very well mislead. Proof of particular facts may supply evidence of both elements. For example, if the plaintiff demonstrates that a prosecution was launched on obviously insufficient material, the insufficiency of the material may support an inference of malice as well as demonstrate the absence of reasonable and probable cause. No universal rule relating proof of the separate elements can or should be stated. [91] What is clear is that, to constitute malice, the dominant purpose of the prosecutor must be a purpose other than the proper invocation of the criminal law - an "illegitimate or oblique motive". That improper purpose must be the sole or dominant purpose actuating the prosecutor. [92] Purposes held to be capable of constituting malice (other than spite or ill will) have included to punish the defendant and to stop a civil action brought by the accused against the prosecutor. But because there is no limit to the kinds of other purposes that may move one person to prosecute another, malice can be defined only by a negative proposition: a purpose other than a proper purpose. And as with absence of reasonable and probable cause, to attempt to identify exhaustively when the processes of the criminal law may properly be invoked (beyond the general proposition that they should be invoked with reasonable and probable cause) would direct attention away from what it is that the plaintiff has to prove in order to establish malice in an action for malicious prosecution - a purpose other than a proper purpose. [93] Two further observations should be made about the element of malice. First, its proof will often be a matter of inference. But it is proof that is required, not conjecture or suspicion. Secondly, the reference to "purposes other than a proper purpose" might be thought to bring into this realm of discourse principles applied in the law of defamation or in judicial review of administrative action. No doubt some parallels could be drawn with the principles applied in those areas. But drawing those parallels should not be permitted to obscure the distinctive character of the element of malice in this tort. It is an element that focuses upon the dominant purpose of the prosecutor and requires the identification of a purpose other than the proper invocation of the criminal law.
No universal rule relating to proof of the separate elements of the tort of malicious prosecution can or should be stated (see Bailey v Director General, Department of Natural Resources [2014] NSWSC 1012 at [357]). As the High Court cautioned in A v NSW at [90], attempts to relate the question of what will suffice to prove malice to what will suffice to demonstrate an absence of reasonable and probable cause, or attempts to reduce that relationship to an aphorism - such as absence of reasonable cause is evidence of malice or that malice is never evidence of a want of reasonable cause - are apt to mislead. That said, it is accepted that if the plaintiff demonstrates that he was prosecuted on patently insufficient evidence, that may support an inference of malice as well as demonstrating an absence of reasonable and probable cause.
While proof of malice may often be a matter of inference, as the High Court emphasised in A v NSW at [93]: [I]t is proof [of malice] that is required not conjecture or suspicion. … It is an element that focuses upon the dominant purpose of the prosecutor and requires the identification of a purpose other than the proper invocation of the criminal law.
Leaving to one side the question whether the plaintiff has established that, as a matter of fact and law, A/Prof Cross should be regarded as a prosecutor for the purposes of the tort, the defendant submitted that despite the pleading at par 18 of the FASC that the prosecution was commenced and maintained for the predominant purpose of harming the plaintiff, this was not put to Mr Tedeschi in cross-examination; neither was it put to Det Insp Jacob or A/Prof Cross in cross-examination. No other oblique or ulterior motive for the prosecution was identified or put to any of the alleged prosecutors as the reason for their prosecution of the plaintiff. The defendant submitted this is fatal to proof of malice.
In the submissions in reply the plaintiff addressed that submission. First, it was submitted that the plaintiff was not obliged to put to any of the prosecutors a specific ulterior or improper motive and that the rule in Browne v Dunn does not require it. In any event, it was submitted that motive was the subject of specific questioning of each of the prosecutors. Secondly it was submitted that the defendant's submission misstates the principle in any event. Reference was made to a passage in Trobridge v Hardy (1955) 94 CLR 147 at 164 where Kitto J said the following: If so, they may legitimately make a finding of malice, even though they may not feel able to say precisely what the malicious motive was. Thus the issue is found, not by the direct persuasion of the primary facts proved, but by the indirect persuasion of the presumption that there must be some rational explanation to account for the acts complained of plus the proved unlikelihood of the defendant's having acted from a proper motive.
The defendant submitted that were the Court to find that the prosecution was initiated and maintained in the absence of reasonable and probable cause by one or more of the putative prosecutors, in order to be satisfied that the separate element of malice was also established by inference from that finding, the insufficiency of the evidence must have been "stark, indeed unarguable" and obvious to a prosecutor of ordinary competence. The defendant submitted that the Crown's circumstantial case was both complex and comprised of diverse categories of evidence, each having relative strengths and weaknesses but which, in combination, and most importantly when viewed at the time the prosecution was initiated and thereafter as it was maintained to verdict, was capable of proving the elements of the charge of murder as they presented for determination by the jury in the way the Crown put its case.
As Basten JA noted in Bailey v Director-General, Department of Natural Resources NSW [2015] NSWCA 318 at [17], while practical considerations in a particular case may affect the order in which the third and fourth elements of the tort of malicious prosecution are approached, the convention is to approach the question whether the plaintiff has established that the prosecutor initiated or maintained the proceedings without reasonable and probable cause before considering whether the plaintiff has also established that, in so doing, the prosecutor acted maliciously. I propose to take that approach.

[30]

The tests for proof of a want of reasonable and probable cause

In the context of this case, as in every case where an action for damages for malicious prosecution is brought, an enquiry about reasonable and probable cause has two aspects: first, what the prosecutor made of the material available to support the prosecution of the plaintiff and, second, what the prosecutor should have made of that material. The first enquiry imposes a subjective test and the second an objective test. An absence of reasonable and probable cause may be established by application of either or both tests.
In this case, it follows that to prove a subjective absence of reasonable and probable cause the plaintiff must establish either that at the time the proceedings were instituted or maintained against him for murder one or more of the putative prosecutors did not (honestly) know, believe or conclude that there were reasonable grounds to justify him being prosecuted for Ms Byrne's murder. In essence, this enquiry involves an examination of the prosecutor's subjective state of persuasion about the sufficiency of the evidence that was considered (by him) as warranting setting the criminal process against the plaintiff in motion or, whether the prosecutor (whose conduct is being considered) honestly believed in the sufficiency of the evidence to initiate a criminal prosecution. More precisely, it obliges the plaintiff to prove the prosecutor had no such belief.
The objective test for an absence of reasonable and probable cause will be met where, in the Court's assessment, a prudent and cautious prosecutor in the prosecutor's position would not have come to that view, there being insufficient grounds for it.
As the High Court in A v NSW pointed out at [58], to limit the enquiry into whether the material assessed objectively would have warranted the commencement or maintenance of the prosecution would deny relief to a plaintiff who was prosecuted maliciously by a prosecutor who is not shown to have actually formed the view that the material warranted prosecution. Conversely, to ask only what the prosecutor made of the material would favour the incompetent or careless prosecutor over the competent and careful.
Further still, as the High Court in A v NSW observed at [78], the content of the question whether the prosecutor believed in the case that was instituted or maintained is not altered if the word "honestly" is added. The Court went on to say: Nonetheless, the qualitative element of the contention that the defendant prosecutor acted without reasonable and probable cause may often be captured best by the word "honesty". In most cases, honesty, or more accurately, the allegation of lack of honesty, will require consideration of what the prosecutor knew, believed, or concluded, about some aspect of the material. If the prosecutor's knowledge or belief must be considered, honesty will add nothing to the inquiry. But it will not always be necessary or appropriate to look only at what the prosecutor knew or believed. Not least will that be so where the prosecutor's knowledge or belief is confined to knowledge or belief of what others have said or done.
At [61] in A v NSW the High Court observed: Because the absence of reasonable and probable cause is understood as containing both subjective and objective elements, one of the chief forensic difficulties confronting a plaintiff is how to establish what the prosecutor (the defendant in the civil proceeding) had in his or her mind when instituting or maintaining the prosecution. Absent some admission by the defendant, the plaintiff must make the case by inference and, if the defendant gives evidence, by cross-examination. The shape of the forensic contest in the particular case will inevitably dictate the way in which the plaintiff puts the argument that absence of reasonable and probable cause is established. In particular, what, if anything, the defendant prosecutor says in court, or has said out of court, about why he or she launched the prosecution, will loom very large in the plaintiff's contentions about absence of reasonable and probable cause. It must be recognised that much of what is said in the decided cases about want of reasonable and probable cause is moulded by the nature of the forensic contest in the particular case.
As the High Court said in A at [80], in cases where the prosecutor acted on material provided by third parties (as was clearly the case here, so far as the liability of Mr Tedeschi and Det Insp Jacob is concerned) a relevant question will be whether the prosecutor is shown not to have honestly concluded that such material warranted setting the processes of the criminal law in motion. This is a separate question from the objective sufficiency of the material. As to that question, at [82] in A v NSW, the High Court said: It is convenient to deal at this point with the objective aspect of an allegation of absence of reasonable and probable cause. As Dixon J said in Brain, if there is no dispute that a prosecutor "believed in the truth of the charge, or considered its truth so likely that a prosecution ought to take place" and no question arises as to the materials upon which the opinion was founded, there remains the question, for the Court to decide, "whether the grounds which actuated [the prosecutor] suffice to constitute reasonable and probable cause."
But unless the prosecutor is shown either not to have honestly formed the view that there was a proper case for prosecution, or to have formed that view on an objectively insufficient basis, the absence of reasonable and probable cause is not established. Further, at [81], the Court observed that the expression "proper case for prosecution" is not susceptible of exhaustive definition without obscuring the importance of the burden on the plaintiff of proving the absence of reasonable and probable cause in the variety of factual and forensic circumstances in which that question may arise.
The question whether the evidence establishes that the prosecutor (whether that be Mr Tedeschi alone or Mr Tedeschi and either or both Det Insp Jacob and A/Prof Cross) has been shown not to have concluded honestly that the material was such as to warrant a prosecution, requires an examination of the assessment the putative prosecutors made of the available material which, in turn, requires an examination of their state of persuasion about the material considered by them and its sufficiency. The plaintiff submitted that each of the three putative prosecutors was cross-examined on this basis and that I would reject as untrue the claims they each made to having honestly formed the view, on a reasoned assessment of the available material, that it was sufficient to warrant the plaintiff being prosecuted for murder.
It is the defendant's submission that I would find each of the three putative prosecutors credible witnesses and that no basis has been established in the evidence, or by inference from the evidence they gave, for the Court to arrive at any contrary view. It remains to be considered whether the defendant's submission that in important respects, in the cross-examination of each of A/Prof Cross, Det Insp Jacob and Mr Tedeschi, there was a failure to comply with the rule in Browne v Dunn, a rule of fairness which the defendant submitted was to be strictly observed in this case where the plaintiff invites adverse credit findings against each of the three putative prosecutors.

[31]

The temporal question

In considering the objective aspects of an absence of reasonable and probable cause it is clear that the focus of the Court's enquiry is on the sufficiency of the information available to the prosecutor(s) at the time proceedings were commenced or maintained, in light of all the facts of the particular case assessed according to an objective standard.
The plaintiff's case is, essentially, that there was insufficient evidence both at the time the proceedings were instituted and throughout the maintenance of the prosecution through to verdict to disprove the reasonable possibility of suicide, and insufficient evidence to contradict the plaintiff's account to police (a case which mirrored his case at trial) that he had no knowledge of the movements or whereabouts of Ms Byrne on 7 June 1995 after he left her in bed at around 1pm and his outright denial that he was at Watsons Bay at any time that day or anywhere near the cliffs when she descended to her death. The plaintiff also submitted that there was insufficient evidence to establish the manner of death on the case the Crown advanced and the plaintiff's role and conduct as the person who murdered her.
The authorities recognise that the resolution of the question whether there is an objective absence of reasonable and probable cause will most often depend upon identifying what it is that the plaintiff asserts is deficient about the material on which the prosecutor acted in instituting or maintaining the prosecution.
In an action for malicious prosecution the need for a close focus on what are contended to be deficiencies in the evidence is allied with the importance of recognising the temporal dimension to that enquiry. An enquiry into the question of the absence of reasonable and probable cause directs attention to the state of affairs that obtained when the prosecution was commenced or when it is alleged the prosecution was maintained. Moreover, as the High Court observed at [59] in A v NSW, the enquiry necessarily directs attention to the material the prosecutor had available for consideration when deciding whether to commence or maintain the prosecution, not any material that may have come to light thereafter.
The defendant, in its submissions, complains that the plaintiff's submissions are replete with "hindsight reasoning" and that the case, as pleaded, betrays that fundamental flaw. As the defendant pointed out, much of what is particularised as malice in par 16 of the FASC, and repeated in par 17 as the facts from which an absence of reasonable and probable cause is established, are drawn from the appeal judgment of the Court of Criminal Appeal. As I have already discussed when dealing with the plaintiff's claim in issue estoppel, it is self-evident that in exercising its appellate jurisdiction under the Criminal Appeal Act, the Court of Criminal Appeal was not concerned with the adequacy or sufficiency of the material available to the prosecutor when the proceedings were initiated and maintained, but whether on the basis of the evidence adduced at the trial the jury ought to have a reasonable doubt about the plaintiff's guilt. The defendant submitted that when this Court disregards the plaintiff's submissions that employ "hindsight reasoning", as it must, it will be apparent that the plaintiff has failed to prove that the criminal proceedings were instituted and maintained without reasonable and probable cause against any one of the alleged prosecutors applying either an objective or subjective test for proof of that element.
In his submissions in reply the plaintiff rejects the submission that he has approached proof of his case by employing impermissible reasoning or that his approach is flawed in any respect. The plaintiff invites the Court to make its assessment of the state of the evidence when the prosecution was commenced (be it in February 2004 when Mr Tedeschi advised Mr Cowdery that the evidence was sufficient to warrant prosecution of the plaintiff, or in March 2006 when Det Insp Jacob sought the issue of a Court Attendance Notice and an arrest warrant effectively setting the criminal process in motion) and when the Court makes its own assessment both of what the prosecutor made of the available material at that time and/or what the prosecutor should have made of it, the Court will not engage in hindsight reasoning and has not been invited by the plaintiff to do so.

[33]

The manner and cause of Ms Byrne's death and the approach of this Court to that question

I emphasised in the course of the hearing that in determining the plaintiff's claim for damages I would not be making any ultimate factual finding as to the circumstances in which Ms Byrne's body came to be found at the base of the cliffs at Watsons Bay, including whether she was thrown from the cliff or whether she jumped or ran and dived to her death. These proceedings are not concerned with determining the manner and cause of Ms Byrne's death. They are concerned with whether the plaintiff has discharged the onus of establishing that one or more of the three people he nominates as prosecutors acted maliciously and without reasonable and probable cause in instituting and maintaining the criminal proceedings against him for her murder, and whether the defendant is vicariously liable for the conduct of one or more of them entitling him to an award in damages.
In final submissions Mr McClintock urged me to find as a fact that on the evidence adduced in these proceedings Ms Byrne probably took her own life by jumping or running and diving to her death. He also submitted that I would be satisfied that was the state of the evidence at the time the criminal proceedings were instituted and maintained and, that being the case, it follows that when the material upon which the prosecutor(s) relied is objectively assessed, the plaintiff will necessarily have established that his prosecution for her murder (by one or more of them) was instituted and maintained without reasonable and probable. He also submitted that this is also an available basis upon which to find that the prosecutor(s) acted maliciously.
Although the question whether at the time the proceedings were instituted and maintained there was evidence capable of excluding suicide beyond reasonable doubt was addressed in final submissions by both parties (an unsurprising state of affairs given the significance of that question to the plaintiff's case that he was prosecuted for her murder without reasonable and probable cause, whether assessed objectively or referable to the subjective belief of the prosecutor(s)), that does not translate into an obligation that the Court must find as a fact the precise circumstances in which Ms Byrne died.
Despite a police investigation into Ms Byrne's death which extended over many years, both before and after the inquest in 1997/1998 and up to and including the trial proceedings in 2008, and despite the fresh evidence adduced in the proceedings on appeal in 2011 that presage these proceedings, controversy persists about a number of issues concerning the manner and cause of death. I should emphasise that continuing controversy must not be taken to undermine the decision of the Court of Criminal Appeal that the plaintiff's conviction for murder was not supportable or that a verdict of acquittal should not have been entered.
The issues relating to the manner and cause of Ms Byrne's death include when she left the cliff edge and descended to her death and the place on the cliff edge from where she made that descent. While it was the Crown case at trial that Ms Byrne left the cliff edge at or about 11:30pm on 7 June 1995 (co-ordinate with the time two fisherman heard a woman scream followed by silence), proof of that fact depended upon the jury being satisfied that it was Ms Byrne who was in the company of two men from about 8pm until 10:30pm that evening when those three people were seen to walk from Watsons Bay shopping village towards the Gap, and that the plaintiff was one of those men.
The Crown case also depended on the quality and sufficiency of A/Prof Cross's evidence that Ms Byrne must have been thrown from the cliff top or cliff edge head first in "a spear-like throw" to her death to have impacted at or in Hole A (or Hole B). It was what was said to be the weight of that evidence in combination with other evidence to the effect that Ms Byrne would have been unlikely to have committed suicide that permitted the Crown to advance the case at trial that there was no reasonable possibility that Ms Byrne intentionality jumped to her death.
It is by now uncontroversial that it was doubts about the reliability of the evidence which the Crown relied upon to establish these two interrelated but separate facts, together with the doubts and questions about the sufficiency of other evidence adduced by the Crown in support of the plaintiff's guilt (including what the Crown submitted was the plaintiff's motive in killing Ms Byrne), that resulted in the jury's verdict being quashed by the Court of Criminal Appeal and a verdict of acquittal entered. The critical question in these proceedings is not whether it follows as a fact from the plaintiff's acquittal that I would find Ms Byrne took her own life, but whether the plaintiff can establish that criminal proceedings against him for her murder were instituted and maintained by one or more alleged prosecutors maliciously and without reasonable and probable cause.
That enquiry includes, but is not limited to, an assessment of whether at the time the proceedings were instituted and maintained there was evidence capable of identifying Ms Byrne in the plaintiff's company (and that of another man) for some hours at Watsons Bay on the afternoon of 7 June 1995 or, more critically, whether the evidence was capable of establishing that she was in the plaintiff's company later that evening at Watsons Bay, and in a state of extreme distress, within an hour of two fishermen hearing a woman scream from the general region of the cliff top at the Gap, before her body was discovered at 4am the following day at the base of the cliffs.
It is for the plaintiff to discharge the evidential and persuasive burden of establishing that when the criminal proceedings against him were instituted and maintained, the evidence relied upon by the Crown to identify him at Watsons Bay with Ms Byrne on 7 June 1995 at or around 11:30pm (when, on the Crown case, she descended to her death) was so flawed that a cautious and prudent prosecutor would not have instituted and maintained a criminal prosecution for her murder.
Even if the evidence, assessed for that purpose in these proceedings, is found to have been objectively capable of satisfying a jury that, contrary to the plaintiff's account that he last saw Ms Byrne at midday on 7 June 1995 in their apartment and in bed, he was in fact with her at Watsons Bay in the afternoon and evening of that day, it is still open to the plaintiff to make out his case that the proceedings were initiated and maintained without reasonable and probable cause if he establishes that one or more of the putative prosecutors held no genuine belief that the evidence was capable of proving that fact.
Independent of the plaintiff's challenge to the sufficiency of the evidence relied upon by the Crown to prove that he was at Watsons Bay with Ms Byrne on 7 June 1995, the plaintiff may also make out his case if he is able to discharge the evidential and persuasive burden that at the time the criminal proceedings against him were instituted and maintained, the evidence relied upon by the Crown to disprove suicide was inadequate. That onus will be discharged if the Court's assessment of the evidence relied upon by the Crown to disprove suicide beyond reasonable doubt was flawed in a fundamental respect, or because a reasonable prosecutor would have viewed the evidence as objectively incapable of disproving the reasonable possibility of suicide. Even if the evidence, assessed for that purpose in these proceedings, is found to have been objectively capable of satisfying a jury that Ms Byrne did not take her own life, again, it is still open to the plaintiff to make out his case that the proceedings were initiated and maintained without reasonable and probable cause if he establishes that one or more of the putative prosecutors held no genuine belief that the evidence was capable of disproving suicide as a reasonable possibility.
The Crown at trial relied heavily on the evidence from Ms Byrne's friends, co-workers and family members who were unable to countenance the possibility that Ms Byrne took her own life. This evidence, coupled with the medical evidence from Dr Pan that (absent the plaintiff's account to police and others after her death) Ms Byrne did not have the clinical profile of a person who, as at June 1995, would be vulnerable to suicide, was also evidence which the defendant submitted in these proceedings added persuasive weight to the physical evidence assembled from the crime scene which, with the application of Newtonian physics and the evidence of A/Prof Cross who espoused it, discounted any reasonable possibility of suicide beyond reasonable doubt, or was at least capable of so doing, such as to properly found a prosecution for her murder.
The plaintiff submitted that Ms Byrne's attendance on her doctor within days of her death, and her complaint of feelings of depression in the context of her clinical history of self-harm following her mother's suicide, predisposed her to suicide. The plaintiff submitted that the absence of any explanation for her known or presumed movements on the afternoon of 7 June 1995, and the contemporaneity of the sounds heard by the fishermen of a female screaming after 10:30pm "for a few seconds before it cut out" were readily explained by Ms Byrne being alone for some hours before her death contemplating her demise and then executing that plan. In the plaintiff's submission, while the views of those who knew her and who saw no apparent signs of any mental instability in the days or weeks prior to her death were genuinely held, and understandably so, they should not be treated by the Court as determinative of the question whether in these proceedings the plaintiff has the made out his case that the prosecution of him for Ms Byrne's murder was initiated and maintained without reasonable and probable cause because the reasonable possibility of suicide could not be excluded.
It is in the context of what the Crown has always acknowledged was its obligation of disproving the possibility of suicide beyond reasonable doubt that the involvement of A/Prof Cross looms large. Although Mr Tedeschi gave evidence that he understood that the investigating police (Det Insp Jacob in particular) regarded the evidence of A/Prof Cross as essential to proof that Ms Byrne was murdered, he gave evidence that he did not view the expert evidence that way.
The plaintiff submitted that when Mr Tedeschi closed the Crown case, although he exhorted the jury to use their common sense, A/Prof Cross's evidence remained the primary evidence the Crown relied upon to exclude suicide. The plaintiff submitted that Mr Tedeschi's evidence in these proceedings that he did not regard A/Prof Cross's evidence as critical to proof of the plaintiff's guilt, whether at the time the proceedings were initiated or when they were maintained to verdict, should be rejected.
While it may ultimately be a question of semantics, I regard Mr Tedeschi's evidence that the expert evidence was "very significant", [25] but not crucial, as somewhat disingenuous. In the result, however, given the plethora of facts that are in contest in these proceedings and the inferences that are said by the respective parties to flow from the facts as the Court will ultimately find them to be, whether Mr Tedeschi should or should not be believed on the issue of the relative importance of the evidence of A/Prof Cross, at one time or another, is unlikely to be determinative. That said, and although there is no direct evidence as to the prominence or otherwise of A/Prof Cross's opinion when Mr Tedeschi furnished his advice to Mr Cowdery in February 2006, Mr Tedeschi did give evidence that he considered the full complement of A/Prof Cross's reports (six in number as at the date of his advice) before rendering that advice.
Irrespective of whether or not I accept Mr Tedeschi's evidence that A/Prof Cross was significant, but not crucial, to proof of the Crown case, and irrespective of whether I accept that he genuinely held the view that it was open to a jury to convict the plaintiff of murder even were they to disregard the evidence of A/Prof Cross altogether (as to which I have grave doubts), it cannot be doubted that A/Prof Cross's contribution generally to the investigation was welcomed by Det Insp Jacob, consistent with the way Mr Tedeschi opened the Crown case to the jury. In fact, Mr Tedeschi referred to the expert evidence the Crown relied upon in proof of guilt very early in his opening submissions. It was one of only three categories of evidence to which he did refer. Although A/Prof Cross was not at that time referred to by name, what would be his evidence that Ms Byrne was "spear thrown" from the cliff by a very strong man was emphasised and, as the Crown case unfolded, it was A/Prof Cross's evidence alone that was available to the Crown as an objective source of evidence to exclude the reasonable possibility that Ms Byrne jumped or dived to her death.
Were I to conclude that at the time that proceedings were instituted and maintained (be it in 2004, 2006 or 2008) the identification evidence was incapable of establishing the plaintiff's presence at Watsons Bay at any relevant time on 7 June 1995, and that the criminal proceedings were instituted and maintained without reasonable and probable cause for that reason, then the manner and cause of Ms Byrne's death, including whether the evidence was capable of discounting suicide beyond reasonable doubt, may not feature prominently for determination. It would still be open to the plaintiff to seek to establish that one or more of the putative prosecutors knew that the evidence left open the reasonable possibility of suicide but that they determined to prosecute him for murder notwithstanding, in proof that they prosecuted maliciously. That is a separate question that only arises if the plaintiff proves the proceedings were initiated and maintained without reasonable and probable cause.
If, however, I am satisfied that the body of so-called identification evidence, when taken with all the evidence relied upon by the prosecutor(s) in instituting and maintaining the criminal proceedings against the plaintiff for murder, was sufficient to establish that the plaintiff was at Watsons Bay with Ms Byrne on 7 June 1995 within hours of the scream heard by the fisherman (clearly a central fact underpinning the Crown case) then the sufficiency of the evidence to disprove suicide beyond reasonable doubt might still be in contention.
That approach would, however, depend upon the case the plaintiff has advanced in these proceedings. The plaintiff did not seek to make his case on the basis that even were the evidence capable of establishing that he was at Watsons Bay at a time proximate to Ms Byrne's demise, the proceedings were nonetheless initiated and maintained without reasonable and probable cause because the Crown could not disprove the reasonable possibility that he was with her when she committed suicide. The only case he advanced was on the interrelated basis that the Crown could not disprove the reasonable possibility that Mr Byrne took the unilateral step of travelling to the Gap with the intention of taking her own life after he had last seen her at their apartment in bed during the early afternoon, and that he was at all times ignorant of her intentions.
It was the Crown case at the plaintiff's trial (and the defendant's case for the purposes of these proceedings) that since it was physically impossible for Ms Byrne to have run and dived or jumped to her death and to have landed in Hole A, the inevitable conclusion the Court would reach is that she must have left the cliff edge above that landing spot with the involvement of a third party or third parties, and not by suicide, the defendant submitted that there is nothing in the evidence in these proceedings that would, or could, lead this Court to any different conclusion. That being the case, the defendant submitted it was open to Mr Tedeschi (the only prosecutor on the defendant's case), having regard to all of the available evidence, to advise that the plaintiff be prosecuted for murder and to maintain that prosecution through the verdict, not only because suicide could be excluded beyond reasonable doubt but because the other evidence in the case was sufficiently probative of the plaintiff's guilt to defeat his claim that he was prosecuted without reasonable and probable cause.
While it is legitimate in these proceedings for the defendant to address submissions as to the manner and cause of Ms Byrne's death and to emphasise discrepancies in the plaintiff's various accounts to police (and to others) of his movements after he said he left Ms Byrne sleeping at their home in Potts Point at about 1pm on 7 June 1995 and before he said he found her car parked at Watsons Bay sometime around midnight on 8 June 1995, and even to submit that some of his conduct might still be regarded as inconsistent with having had no knowledge of her whereabouts both during the afternoon and at the base of the cliffs at midnight, it bears repeating that the plaintiff is entitled to the full benefit of the quashing of his conviction for her murder and the verdict of acquittal that was entered (A v NSW at [57]).
All that said, because the plaintiff's claim for damages is dependent on him establishing that he was maliciously prosecuted for Ms Byrne's murder by at least one of the prosecutors for whom he contends the defendant is vicariously liable, it is unavoidable that questions as to the manner and cause of Ms Byrne's death have been re-agitated in these proceedings, even if these proceedings cannot finally resolve that question.

[34]

The Court's approach to the evidence and the issues

In the event that either or both Det Insp Jacob and A/Prof Cross are found to be prosecutors, the further question whether Det Insp Jacob acted maliciously and without reasonable and probable cause at the time proceedings were instituted or maintained by him or, in the case of A/Prof Cross, whether he acted maliciously and without reasonable and probable cause in what are said to be his dishonest dealings with Mr Tedeschi in Mr Tedeschi's role as prosecutor (the refined basis upon which the plaintiff relies in making good his contention that A/Prof Cross is a prosecutor), can only be resolved by first undertaking a detailed examination of the lengthy course of the police investigation, including A/Prof Cross's role in the investigation.
Whether the plaintiff has established that Mr Tedeschi prosecuted him maliciously and without reasonable and probable cause as and from February 2006 when he furnished his advice to Mr Cowdery also necessitates a review of the evidence assembled in the course of the police investigation, since it was the brief of evidence compiled by Det Insp Jacob, including his consideration of the content of the first Cross report, that was the basis upon which Mr Tedeschi furnished his advice to Mr Cowdery, the advice upon which Mr Cowdery relied when he undertook to prosecute the plaintiff for murder upon the plaintiff's extradition from the United Kingdom. What Mr Tedeschi made of this material, or what he should have made of it at the time the proceedings were instituted and maintained, are questions integral to the enquiry into whether the plaintiff has established that Mr Tedeschi prosecuted the plaintiff without reasonable and probable cause. It may also inform the question whether the plaintiff has established that he did so maliciously.
To the extent that this material was supplemented or refined at the time the trial commenced in August 2008, and as the trial progressed to verdict, will also have a direct bearing on both questions. For that reason alone, a review of the course of evidence led at trial is unavoidable. In addition, because the plaintiff's case on malice (as it is attributed to Mr Tedeschi as prosecutor) is based, to a substantial degree, both on what is known about Mr Tedeschi's preparations for trial and in his conduct in the presentation of the Crown case as reflected in the transcript of the proceedings at trial, it will also be necessary to review Mr Tedeschi's opening and closing addresses to the jury in some detail, as it will the way in which some of the evidence in the Crown case was adduced by him and why some evidence available to the Crown was not adduced at all.
A/Prof Cross's involvement in the investigation not only raises the question whether I am persuaded on the plaintiff's case that he acted dishonestly in the provision of advice first to the NSW Police through Det Insp Jacob (that being one of the bases upon which the plaintiff attributes to him the role of a prosecutor). It involves an enquiry into the assessment Det Insp Jacob made of his evidence, it being the plaintiff's case that contrary to his evidence in these proceedings, Det Insp Jacob had no genuine belief in the opinions that A/Prof Cross was volunteering in the course of his dealings with him and in the provision of his various reports, because he knew A/Prof Cross was willing to provide whatever opinion would help prove the plaintiff murdered Ms Byrne.
The assessment Mr Tedeschi made, or should have made, of A/Prof Cross's reliability as an expert witness, including his compliance or the lack of it with the Expert Witness Code of Conduct, presents as a separate question. The role Mr Tedeschi played (if any), first in steering the tenor and content of the reports furnished by A/Prof Cross from July 2004 (his second report) until months before trial (his seventh report), and then in the way A/Prof Cross's evidence was adduced by him at trial is a further question. It is the plaintiff's case that Mr Tedeschi's revealed attitude to A/Prof Cross's evidence goes to proving both his lack of subjective belief in the sufficiency of the evidence to make out the Crown case that the plaintiff threw Ms Byrne to her death, and malice by his attempts to manipulate the evidence to establish that fact.

[35]

Has the plaintiff made out a case that A/Prof Cross is a prosecutor?

Upon receipt of the defendant's submissions challenging the correctness of the plaintiff's primary submission that Commonwealth Life Assurance Society Ltd v Brain is authority for the proposition that A/Prof Cross is "vicariously liable for the tort of malicious prosecution", [26] and that "Det Insp Jacob may alternatively be vicariously liable with [him]", [27] and after apparently accepting the defendant's challenge to the plaintiff's further submission that Det Insp Jacob and A/Prof Cross are "jointly and [severally] liable with Mr Mark Tedeschi", [28] the plaintiff redefined his case on the prosecutor issue. From that I take it that the plaintiff accepts that on a proper reading of the decision in Brain, neither proposition is correct as a matter of law.
Before turning to the plaintiff's redefined or clarified case, it is useful to refer to the facts in Brain which can be shortly stated. The respondent (Mr Brain) sued the appellant company in this Court for maliciously prosecuting him for conspiring with others to cheat and defraud divers shareholders and policy holders of the Commonwealth Life (Amalgamated) Assurance Ltd of divers large sums of money. The appellant company had been given authority to instruct solicitors and counsel and to conduct the prosecution in the name of a police officer as informant. While the filing of a bill of indictment by the Attorney General was pending, Mr Inch (a director and general secretary of the company) told Mr Smith the company, "could stop the prosecution … provided that Smith made a statement that he was the tool of Page, and also induced Corkhill and Brain to make similar statements". A nolle prosequi was subsequently filed and the civil action commenced.
The tension between whether the action brought by the company was a private or public prosecution was obvious. It was explained by Evatt and McTiernan JJ at 400-401 as follows: The decision of the Crown's legal advisers to convert what appeared on the surface to be a police prosecution into a private prosecution is only explicable because those advisers acted upon the information and report of Lawrence; but the decision tends to corroborate the jury's finding that, from first to last, the prosecution was in reality a private, and not a police, prosecution. In our opinion, the jury were entitled to find that the responsibility for the arrest and prosecution of the plaintiff is to be imputed to the defendant company, acting through Inch, its agent. It was not disputed before us that Inch did possess the necessary authority to undertake and continue criminal proceedings against those who, in his judgment, were threatening the interests of the defendant company.
In relation to the question of determining whether the appellant company was correctly identified as prosecutor, Starke J held at 351: It is not enough to say that the prosecution was instituted and conducted by the police. "The mere setting of the law in motion is not the criterion"; the conduct of the appellant "before and after the charge must also be taken into consideration." A person giving information to the police is by no means necessarily a prosecutor. "The question in all cases of this kind must be - Who was the prosecutor? and the answer must depend on the whole circumstances of the case.
Starke J considered two facts of particular significance. First, Mr Inch gave permission to the company to conduct the prosecution on the express condition that neither the police officer, who was the informant, the Commissioner of Police or the Crown was to be liable for any costs, charges or expenses. Further, the chairman of the company had told shareholders in May 1933 that "the recent prosecutions" have: [E]arned us the approbation of the insurance companies of New South Wales. If Governments had done what they should have done, we should not have had the need to do what we did. In the other States I have had nothing but commendation for having placed our solicitors at the disposal of the police.
At 379, in what has become the seminal judgment, Dixon J considered the question of the identity of the prosecutor as follows: The legal standard of liability for a prosecution which is instituted neither by the defendant nor by his servant is open to criticism on the ground of indefiniteness. It is clear that no responsibility is incurred by one who confines himself to bringing before some proper authority information which he does not disbelieve, even although in the hope that a prosecution will be instituted, if it is actually instituted as the result of an independent discretion on the part of that authority. But, if the discretion is misled by false information, or is otherwise practised upon in order to procure the laying of the charge, those who thus brought about the prosecution are responsible. Further, the Privy Council has said in a judgment delivered by Lord Dunedin: - "In any country where, as in India, prosecution is not private an action for malicious prosecution in the most literal sense of the word cannot be raised against any private individual. But giving information to the authorities which naturally leads to prosecution is just the same thing. If that is done and trouble caused an action will lie." Their Lordships, however, held in the case before them that, as the information supplied to the police was ample cause for the initiation of prosecution proceedings, the plaintiff must, in order to succeed in his action, go the whole way of showing that it was false to the defendant's knowledge, a case containing dicta apparently inconsistent with the decision of this Court in Davis v. Gell). The rule appears to be that those who counsel and persuade the actual prosecutor to institute proceedings or procure him to do so by dishonestly prejudicing his judgment are vicariously responsible for the proceedings. If the actual prosecutor acts maliciously and without reasonable and probable cause, those who aid and abet him in doing so are joint wrongdoers with him. (Citations omitted.)
It was Dixon J's reference to "vicarious responsibility" and "joint wrongdoers" that the defendant in these proceedings submitted the plaintiff had misconstrued in seeking to attribute "vicarious" liability as a prosecutor to A/Prof Cross. The plaintiff takes no issue with that criticism in his submissions in reply.
The plaintiff submitted, however, that the attribution of tortious liability to a third party prosecutor is not limited to cases where false information is provided to the person who formally commences the prosecution. The plaintiff submitted that Dixon J described two situations that go beyond the case of a person who "confines himself to bringing before some proper authority information which he does not disbelieve", to include a case where the discretion that vests in the prosecuting authority through an appointed prosecutor is misled by a person who deliberately provides false information and, secondly, where the prosecutor is procured or counselled by improper means by someone to procure the laying of charges.
In the circumstances of this case (questions of vicarious liability under the Vicarious Liability Act aside), the plaintiff accepted that A/Prof Cross will not be a prosecutor as a matter of law unless he establishes that as an expert consultant A/Prof Cross caused Mr Tedeschi's independent discretion as the Senior Crown Prosecutor to miscarry when Mr Tedeschi advised Mr Cowdery that the plaintiff should be prosecuted for murder, and that he did so by intentionally and deliberately misleading Mr Tedeschi. Expressed in another way, the plaintiff accepts that he would need to establish that A/Prof Cross intentionally counselled or procured Mr Tedeschi to commence a prosecution against him for Ms Byrne's murder, and that he did so dishonestly, if he is to be regarded as a prosecutor in these proceedings. The defendant does not take issue with Brain as authority for either proposition.
That being the case, the question of A/Prof Cross's alleged dishonesty and Mr Tedeschi's reliance on what the plaintiff submitted was the knowingly false information he provided in his various reports, are the primary facts in issue on the question whether the plaintiff has established A/Prof Cross is exposed as a prosecutor for the purposes of the tort. The defendant's vicarious liability for any of his tortious conduct in that capacity is a separate question that only arises if the first question is answered in the affirmative.
It is the defendant's case in these proceedings that the plaintiff has failed to prove that A/Prof Cross procured or counselled Mr Tedeschi to prosecute the plaintiff by dishonest conduct, whether by knowingly supplying information and proffering opinions which he knew to be false, or which he knew were objectively unsupportable. The defendant submitted that the principles of third party liability for the tort of malicious prosecution identified in the various authorities to which the Court was referred by the plaintiff need to be applied with caution because, inevitably, these cases involve prosecutions being "virtually compelled" by information provided by complainants or witnesses without prosecuting authorities being in a position to exercise an independent discretion, or make any objectively informed assessment of the essence or the substance of a complaint of criminal wrongdoing. The defendant emphasised what it submitted was self-evident from the consideration Mr Tedeschi gave to the sufficiency of the evidence in the police brief of evidence, and in the various requisitions made before the advice was furnished to Mr Cowdery, and then ultimately in the presentation of the Crown case, namely that the core or central premise of the views expressed by A/Prof Cross were independently verified, and numerous aspects of the Crown case were also the subject of expert evidence in relation to which A/Prof Cross had no role or expertise. The evidence given by Prof Elliott is said by the defendant to figure prominently in that connection. The defendant submitted, correctly, that it is not to the point that witnesses called by defence, including Dr Duflou, Prof Hilton or Prof Pandy, disagreed with some or even all of the opinions of the experts called in the Crown case since, for the purposes of these proceedings, the focus is what the prosecutor actually made of the evidence, including the expert evidence, or what he should have made of that evidence, at the time the proceedings were instituted or maintained.
The parties are at issue as to whether the plaintiff must also establish that A/Prof Cross's opinions "virtually compelled" Mr Tedeschi to initiate the proceedings in order for the Court to find that in advising that the plaintiff be prosecuted for murder, Mr Tedeschi's discretion miscarried. The plaintiff accepted that if Mr Tedeschi's decision to prosecute was otherwise based on objectively sufficient evidence, then A/Prof Cross's evidence, even if it is found to be misleading or false, will not have been shown to have caused Mr Tedeschi's discretion to prosecute to miscarry. The plaintiff submitted, however, that is not what occurred. The plaintiff submitted the Court would be satisfied that without the opinions expressed in A/Prof Cross's second and subsequent reports there was insufficient evidence to support his prosecution for murder despite Mr Tedeschi's evidence in these proceedings to the contrary. In the alternative, the plaintiff submitted that it would be sufficient for the Court to be satisfied that A/Prof Cross's dishonest conduct materially affected Mr Tedeschi's decision to prosecute the plaintiff or, to the extent that Det Insp Jacob is also taken to be a prosecutor, to have materially affected the decision he made to charge the plaintiff with murder.
The question of third party liability for the tort of malicious prosecution has been most recently considered by this Court in Sahade v Bischoff [2015] NSWCA 418, an appeal involving a neighbourhood dispute which erupted into physical violence as a result of which the appellants were charged with criminal assault. Mr Sahade and Mr Smith (the appellants) sued Mr and Mrs Bischoff (the respondents) for malicious prosecution. The Bischoffs denied they were prosecutors. This was an issue on appeal. At first instance, the trial judge found neither Mr nor Mrs Bischoff were substantially and sufficiently involved in the procurement, institution and/or maintenance of the criminal charges against Mr Sahade and Mr Smith to become prosecutors, since it was the police who decided to charge them, relying partly on statements from Mr and Mrs Bischoff but also relying upon CCTV footage of the incident.
At [113] Gleeson JA noted: In A v State of New South Wales at [34], the High Court pointed out that "[t]he identification of the appropriate defendant in a case of malicious prosecution is not always straightforward." The joint judgment continued: [t]o incur liability, the defendant must play an active role in the conduct of the proceedings, as by 'instigating' or setting them in motion" (citing John G Fleming, The Law of Torts, (9th ed 1998, Law Book Company Information Services) at 676). Their Honours referred at [35] to Martin v Watson [1996] AC 74, a case involving a complaint made to the police: In Martin v Watson, a woman made an allegation that her neighbour had indecently exposed himself to her whilst standing on a ladder in his garden. She went to a police station and complained. A detective constable laid an information against the neighbour. At a hearing before the Magistrates' Court, the Crown Prosecution Service offered no evidence, and the charge was dismissed. The House of Lords held that, since the facts relating to the alleged offence were solely within the complainant's knowledge, and that as a practical matter the police officer who laid the information could not have exercised any independent discretion, the complainant could be sued for malicious prosecution, and upheld an award of damages against her. The complainant had 'in substance procured the prosecution' [at 89]. The police officer to whom the complaint was made had no way of testing the truthfulness of the accusation [at 89]. Lord Keith of Kinkel quoted with approval a statement by McMullin J in the Court of Appeal of New Zealand [Commercial Union Assurance Co of New Zealand Ltd v Lamont [1989] 3 NZLR 187 at 207-208], that a person may be regarded as the prosecutor if he puts the police in possession of information which virtually compels an officer to bring a charge.
Gleeson JA then referred to Brain in the following connection: [114] Earlier Dixon J in Commonwealth Life Assurance Society Ltd v Brain [1935] HCA 56; 53 CLR 343 at 379, in a passage which was referred to by Lord Keith in Martin v Watson at 81, referred to the criteria by which a complainant to the police may be said to have instigated the prosecution: It is clear that no responsibility is incurred by one who confines himself to bringing before some proper authority information which he does not disbelieve, even although in the hope that a prosecution will be instituted, if it is actually instituted as the result of an independent discretion on the part of that authority … . But, if the discretion is misled by false information, or is otherwise practised upon in order to procure the laying of the charge, those who thus brought about the prosecution are responsible … . The rule appears to be that those who counsel and persuade the actual prosecutor to institute proceedings or procure him to do so by dishonestly prejudicing his judgment are vicariously responsible for the proceedings. If the actual prosecutor acts maliciously and without reasonable and probable cause, those who aid and abet him in doing so are joint wrongdoers with him. [Citations omitted.] [115] Notwithstanding the reference by Dixon J to "joint wrongdoers" in the passage set out in the preceding paragraph, it is not a necessary condition for the effective pursuit of an action for malicious prosecution that the actual prosecutor himself or herself was party to the wrongdoing: Johnston v Australia & New Zealand Banking Group Ltd [2006] NSWCA 218 at [39]-[40] (Basten JA). His Honour noted that the authorities for this proposition included Commonwealth Life Assurance Society Ltd v Brain at 379 and 381-382 (Dixon J) and Mahon v Rahn (No 2) [2000] 1 WLR 2150 at [255]. [116] In Mahon v Rahn (No 2) at [266], Brooke LJ (Mantell and Laws LJJ agreeing) noted that in Martin v Watson at 84, Lord Keith also relied on the Restatement of the Law, Torts, 2d (American Law Institute, 1977), s 653, which deals with the matter in this way: When a private person gives to a prosecuting officer information that he believes to be true, and the officer in the exercise of his uncontrolled discretion initiates criminal proceedings based upon that information, the informer is not liable under the rule stated in this section even though the information proves to be false and his belief was one that a reasonable man would not entertain. The exercise of the officer's discretion makes the initiation of the prosecution his own and protects from liability the person whose information or accusation has led the officer to initiate the proceedings. If, however, the information is known by the giver to be false, an intelligent exercise of the officer's discretion becomes impossible, and a prosecution based upon it is procured by the person giving the false information. In order to charge a private person with responsibility for the initiation of proceedings by a public official, it must therefore appear that his desire to have the proceedings initiated, expressed by direction, request or pressure of any kind, was the determining factor in the official's decision to commence the prosecution, or that the information furnished by him upon which the official acted was known to be false.
In Johnston v Australia & New Zealand Banking Group Ltd [2006] NSWCA 218 (the case cited by Gleeson JA at [115]), a bank and two other parties (the creditor and his employee) were sued for malicious prosecution. The bank had issued a notice to the appellant and then sought to have him prosecuted for trespass when he entered the land to obtain the notice, the bank, as secured creditor, having taken possession of the land. Basten JA (Giles and Santow JJA agreeing) stated the principles that apply when a private person is sued as a prosecutor at [41]-[43]: [41] The limits to the circumstances in which private citizens will be liable for malicious prosecution, where they have reported possible unlawful activity to the police, will vary, depending upon the particular circumstances of a case. There are conflicting policy considerations: on the one hand, people should be discouraged from using the criminal courts for settling civil disputes or simply as places where old scores may be settled … On the other hand, responsible citizens should not be discouraged from reporting possible unlawful behaviour to the authorities responsible for investigating and prosecuting offences and crimes, by the fear of civil action if a complaint proves to be unfounded. The tension between these policy considerations was helpfully expressed in the American Law Institute, Restatement of the Law, Torts (2nd ed, 1977) at s 653(g): Influencing a public prosecutor. A private person who gives to a public official information of another's supposed criminal misconduct, of which the official is ignorant, obviously causes the institution of such subsequent proceedings as the official may begin on his own initiative, but giving the information or even making an accusation of criminal misconduct does not constitute a procurement of the proceedings initiated by the officer if it is left entirely to this discretion to initiate the proceedings or not. When a private person gives to a prosecuting officer information that he believes to be true, and the officer in the exercise of his uncontrolled discretion initiates criminal proceedings based upon that information, the informer is not liable under the rule stated in this Section even though the information proves to be false and his belief was one that a reasonable man would not entertain. The exercise of the officer's discretion makes the initiation of the prosecution his own and protects from liability the person whose information or accusation has led the officer to initiate the proceedings. If however, the information is known by the giver to be false, an intelligent exercise of the officer's discretion becomes impossible, and a prosecution based upon it is procured by the person with responsibility for the initiation of proceedings by a public official, it must therefore appear that his desire to have proceedings initiated, expressed by direction, request or pressure of any kind, was the determining factor in the official's decision to commence the prosecution, or that the information furnished by him upon which the official acted was known to be false. … [42] In circumstances where there is little by way of investigation of the facts to be undertaken by the police, the provision of false evidence by the complainant will readily support an action for malicious prosecution, even though the police may make the necessary inquiries, obtain a denial from the prospective defendant, and are then faced with conflicting stories. … [43] It follows that whether or not a complainant will be found liable in circumstances where a charge was laid and proceedings undertaken by the police, will depend upon the extent to which responsibility for setting the criminal process in train can properly be sheeted home to the complainant. But an independent exercise of discretion by the police could only be relied on as a defence where it is shown that the decision-making process was not materially tainted by false evidence provided by, or misleading conduct on the part of, the complainant.
Gleeson JA did not consider it necessary to decide whether a conclusion reached by Richardson J in Commercial Union Assurance Co of New Zealand Ltd v Lamont [1989] 3 NZLR 187 at [199] that because of the independent discretion exercised by official prosecutors, the circumstances in which private persons are to be regarded as having instigated a prosecution should be "rare and exceptional" ought be adopted by this Court as a matter of principle. Gleeson JA was of the view, however, that for the purposes of the appeal it was sufficient to note the distinction Brooke LJ drew in Mahon v Rahn (No 2) [2000] 1 WLR 2150 at [268] between a "simple" case involving a complaint to the police and more complex cases in which the prosecuting authority is in receipt of evidence from a variety of sources and has to decide in the exercise of its discretion whether it is in possession of sufficient evidence to justify setting the law in motion. His Honour also acknowledged, at [120], that encouraging third parties to assist police in the function of investigating and prosecuting breaches of the criminal law, without fear of being harassed by actions of malicious prosecution, reflected public policy considerations.
The defendant in these proceedings submitted that analogous policy considerations ought apply to forensic and other experts across a range of disciplines who are commonly retained by investigators and by prosecuting authorities to give informed opinion evidence bearing upon the infinite range of facts that frequently present as facts in issue in a criminal trial, and that the community and courts ought not be deprived of their opinions for fear of tortious or civil proceedings being commenced against them.
Ultimately, the Court in Sahade held (Basten JA and Beech-Jones J agreeing with Gleeson JA) that the respondents, Mr and Mrs Bischoff, did not instigate the prosecution of the appellants, nor did they maintain the prosecution of them because, inter alia, the relevant facts were not so exclusively within their knowledge that it was "virtually impossible for the police to exercise any independent discretion to prosecute the appellants" without them.
The Court stated at [138]: The present case is distinguishable from cases such as State of New South Wales v Abed [2014] NSWCA 419 where the only person who could directly testify about the alleged incident (an alleged break and entry into the complaint's home and an assault) was the complainant herself. Here the police were able to test the truthfulness of the information in the Bischoffs' statements against the CCTV footage.
In order for the plaintiff to make his case against A/Prof Cross, he must first establish the positive proposition that the information supplied by A/Prof Cross on or before 8 February 2006 when Mr Tedeschi's advice was furnished to Mr Cowdery was false and he knew it to be so. This is plain from the passage in Brain cited by Gleeson JA in Sahade in which Dixon J stated at 379 that, "no responsibility is incurred by one who confines himself to bringing before some proper authority information which he does not disbelieve". A/Prof Cross maintained in his evidence (a position adopted by the defendant as a complete answer to the plaintiff's case that A/Prof Cross is a prosecutor) he could not "will an experimental result … The experimental results speak for themselves regardless of what I want to happen or what anybody else wants to happen, an experimental result is what it is and it speaks for itself". [29]

[37]

The initial involvement of A/Prof Cross with the investigation into Ms Byrne's death

By way of background, the first contact with A/Prof Cross by anyone involved in Ms Byrne's death was by Det Insp Wyver in 1998 during the second phase of the police investigation and, it would seem, at the suggestion of Deputy State Coroner Abernathy with whom A/Prof Cross had some previous dealings in the coronial enquiry into the 1998 Sydney to Hobart yacht race.
It also seems to be common ground that Det Insp Wyver's initial contact was to seek A/Prof Cross's opinion as to whether, having regard to the distance Ms Byrne was found from the base of the 30-metre vertical cliff at Watsons Bay, she could have jumped or whether she must have been pushed. A/Prof Cross informed Det Insp Wyver (although apparently no note was made of it in police records at any time by anyone) that the distances quoted were consistent with a jump but not consistent with a push. A/Prof Cross's working notes where he addressed that issue were the first document in Ex 108(1). [30]
A review of the evidence obtained during the course of the inquest relevant to how Ms Byrne came to be found deceased on the rocks at the base of the cliff (such as it was) was included in Det Insp Jacob's letter to A/Prof Cross sent (by email) on 23 September 2003. [31] On that date, Det Insp Jacob recorded [32] in e@gle.i that he had initiated contact with A/Prof Cross in December 2002 as a result of A/Prof Cross contacting the Coroner's Court and complaining that he had not been paid for the professional services he provided in the course of the inquest. Det Insp Jacob reported that he spoke with A/Prof Cross, apologised for the lack of communication and said that he would make arrangements for him to formalise his opinion by way of a written report and that he would attend to satisfying his outstanding invoice promptly. No record of that contact was included in the police progress reports (separately tendered as Ex 98A), although nothing appears to turn on that.
A/Prof Cross was cross-examined in these proceedings about his motivations in making contact with the Coroner in December 2002, and the assertion in his book published in 2009 that he wrote to the Coroner because he was concerned that police were not "interested in measurements and calculations" [33] and that: [I]t could be useful to - for the coroner, or the police, to, to take measurements to see whether it was possible for Caroline Byrne to have jumped the distance or have been thrown. [34]
He went on to say that he raised with the Coroner that he had not been paid for the advice that he gave to Det Insp Wyver.

[38]

The reliance, if any, of A/Prof Cross's motivations in offering to assist

Both in the cross-examination of A/Prof Cross and in final submissions, the plaintiff sought to make much of what was alleged to be A/Prof Cross's pecuniary motivations in forging a relationship with the police investigating Ms Byrne's death, evidenced, so it was submitted, not only by his unsolicited correspondence with the Coroner, but also by the numerous unsolicited emails with Det Insp Jacob both before and after he was formally retained as an expert forensic consultant on 25 September 2003 [35] , and his frequent suggestions thereafter that he be engaged (for a fee) to conduct various experiments to be styled by him. The plaintiff also sought to establish that A/Prof Cross's unilateral contact with the media, including the producers of the "60 Minutes" program, was evidence of the lengths to which he went to promote himself, hoping to utilise the high profile investigation into Ms Byrne's death to advance his career as a forensic expert within law enforcement and to attract media attention as a consequence. This, in turn, was said to be evidence of his malice as a prosecutor.
It will only be necessary to refer further to A/Prof Cross's alleged pecuniary motives or the plaintiff's contention that he was motivated to advance his profile as a forensic expert if I am satisfied that he should be treated as a prosecutor as a matter of law. Those considerations do not inform whether he should be so regarded. Were I satisfied he was a prosecutor (which, as I make clear later, I am not), such pecuniary motivations as might be established by the evidence, and other motives ulterior to invoking the processes of the criminal law, would be relevant to the issue of malice.
The submissions the parties have directed to the issue of A/Prof Cross's motivations in accepting the role of an expert forensic consultant, and his engagement in that capacity first by Det Insp Jacob and then as a Crown witness will also only be relevant in the event that the plaintiff establishes that he is a prosecutor as a matter of law. Importantly, there were no submissions advanced by the plaintiff that the Court would find relevant dishonesty in A/Prof Cross's dealings with Mr Tedeschi and/or Det Insp Jacob because his motivations were venal or to advance his career as a forensic consultant.
To the extent that A/Prof Cross has represented in journal articles and in his evidence that he was disinterested in receiving any payment for his oral advice to Dep Insp Wyver, and that he had no contact at all with NSW Police after providing that preliminary oral advice before he was next contacted by Det Insp Jacob, he is contradicted both by the entry in e@gle.i and in his book. The plaintiff relies upon that fact, amongst a range of other matters, as reflecting adversely on A/Prof Cross's credit. Issues of credibility have some significance on the question of whether the plaintiff has proved that A/Prof Cross should be found to have the status as a prosecutor, although that question is unlikely to be resolved by reference to issues of credibility alone.
On 16 September 2003 [36] , prior to sending the formal instructing letter to A/Prof Cross on 25 September 2003, Det Insp Jacob sent an email and, after apologising for the initial contact with NSW Police through Det Insp Wyver not being dealt with appropriately, he undertook to meet A/Prof Cross's fees promptly. Det Insp Jacob asked that he express his findings in a report "in order that they may be presented to the Coroner's Court through the brief of evidence". [37] It is clear that, as at September 2003, all Det Insp Jacob was seeking from A/Prof Cross was a written report of the results of the inquiry Det Insp Wyver had made of him in 1998 concerning the issue of the distance Ms Byrne's body was located from the cliff which was thought (it seems by the Coroner) to be suspicious. (I note there was no expert evidence adduced at the inquest to address that issue. Assuming Det Insp Wyver reported to the Coroner the oral advice from A/Prof Cross, it was not reproduced in the transcript of the public hearing.)
A/Prof Cross responded by email the following day. [38] He asked whether Det Insp Jacob wished him to include his "physics calculations" or whether a summary of the results was sufficient. He went on to say: I could write a better report if it was backed up by some measurements but no one has ever done these measurements as far as I know. I suspect that the New York or San Francisco forensic people would have lots of statistics on people jumping or being pushed off cliffs and building, in terms of distances and types of injuries. Do you have access to this type of information? I don't. [39]
Det Insp Jacob responded by email [40] and advised A/Prof Cross of the existence of a photogrammetry plan (which the evidence established was prepared in 1999) which he offered to deliver. He also offered to meet the costs of any additional work done referable to the plans. Det Insp Jacob apologised again for not seeking the written report many years earlier which he attributed to staff movements and the matter simply "slipping through the cracks". [41] He concluded by welcoming the fact that the matter had come to light and that A/Prof Cross was willing to resolve it by furnishing the report as requested. He also welcomed the inclusion of A/Prof Cross's calculations, together with a summary of his opinion based on those calculations. I note that in the information provided to him by Det Insp Wyver in 1998, A/Prof Cross was invited to consider that: (a) Ms Byrne's body landed 9 metres from the base of a cliff that was 30 metres high; and (b) there was a fence at the top that prevented her taking a running jump directly outwards, on the basis of which he calculated that it would take 2.47 seconds to descend at a horizontal speed of 3.6 m/s, which he considered was consistent with a jump but not a push. The launch speed varied considerably in the reports A/Prof Cross furnished between 2003 and 2008.
Within approximately half an hour of receiving Det Insp Jacob's email of 18 September 2003, A/Prof Cross responded, volunteering his services for a series of "simple pushing and jumping experiments" [42] which he suggested might address what he described as "possible variations" [43] on the conclusions he reached in his oral advice to Det Insp Wyver. He said in the email: I did not investigate things such as two people lifting or swinging or throwing or running along the top of the cliff. I took the simplest model that she either jumped out or was pushed out by a single person, and the cliff was essentially vertical. That's all I was asked to do in 1998. [44]
He went on to offer experiments of various kinds for what he considered: [C]ould be done to make better or more convincing conclusions, ranging from something that might take one hour (eg push a heavy object over …) to something that might take a few days and involve a tall building or cliff. It depends on whether you have time, interest, money etc. I would need to be guided by your thoughts as to whether such experiments might be useful to you. … It would seem worth while spending say $3,000 on some simple pushing and jumping experiments. [45]
Three hours later A/Prof Cross sent a further (unsolicited) email to Det Insp Jacob: Just a thought. It would be of interest to film someone jumping and being pushed off a diving board into a pool. Not quite the same thing, but the numbers would help me in my calculations. It would be more realistic than pushing a vertical 50 kg steel column on the floor. [46]
On 23 September 2003, A/Prof Cross sent a further (unsolicited) email to Det Insp Jacob in which he queried whether he was right to assume that the cliff face was vertical as a "non-vertical, outwards slope near the top would act like a slippery dip" [47] and stated if the photogrammetry plan showed an outward slope of that kind he would re-do his calculations.
It is clear that it was A/Prof Cross's largely unsolicited emails raising issues and concerns about the thoroughness of his oral report to Det Insp Wyver that precipitated the lengthy letter sent by Det Insp Jacob (by email) on 23 September 2003 in which, in my assessment, his response (or lack of response) to the unsolicited and volunteered thoughts and offers of experiments of various kinds is measured, perhaps even deferential in tone, but firm. That assessment is supported by an e@gle.i entry by Det Insp Jacob of the same date where he recorded the consideration he had given to sanctioning the experiments that A/Prof Cross had proposed, concluding: [I]t is not in the interests of advancing this inquiry that such experiments or tests be carried out … The possible variables involved are too great for this investigation to benefit from such experiments. [48]
It is instructive to set out the letter of 23 September 2003 in full: Dear Professor, Thanks for the emails. I've read them and put my mind the issues you raise and this aspect of the inquiry. During the course of the Coronial Inquest, evidence of the distance Caroline Byrne's body was recovered from rocks, approximately 9 meters [sic] out from the top of the cliff, which was approximately 30 meters high, was presented. The cliff is essentially vertical, but undercuts part way down. The attending officers noted a slight on shore breeze present at the time of their presence at The Gap, that being the early hours of the 8/6/95. At post mortem the deceased was found to weigh 57 kilograms and was 1.74 meters tall. There was no evidence, either presented as injuries upon the deceased or evidence upon the cliff face that the deceased came into contact with it after leaving the top, examination for such evidence was a focus of the specialist police attending. The evidence was that the first point of contact for the deceased was at the rocks where her body was recovered. The distance issue was a significant one during the Coronial Inquest. (As I recall this distance was similar to the width of the Coroners Court room and seemed an awfully long way). The impression left was that 'she must have been thrown to get that distance.' But without expert evidence on the 'physics' involved this aspect could only be taken so far. Thereafter and as you've rightly recalled Detective Sergeant Wyver's request to you was simply to address this distance issue. This you have clearly done. The exact 'way' in which Caroline Byrne left the top of the cliff may never be known. There are numerous possibilities, which include but of course are not limited to: • Simply allowed herself to fall from the clifftop. • Jumping or stepping off the clifftop • Falling backwards off the clifftop • Left the top accidentally (through some type of misadventure) • Been pushed or thrown by one or two persons and her motion interrupted by either a fence, distance, a struggle, efforts to protect herself or otherwise. • Running from or moving away from a danger Of course, it would be tremendous to know which way Caroline Byrne left the clifftop but we don't. And in my view, even with the execution of the detailed comprehensive tests that you've described, this will not answer that question because of the numerous possible variables. Because we may never know the exact way she went from the clifftop we have looked extensively from an investigative perspective to all of the circumstances surrounding this incident, the deceased and others both before and after her death, in order to examine the likelihood or otherwise of suspicious circumstances or criminal behaviour being involved. Suffice to say that your work thus far has cleared up the significant issue that was unresolved during the Inquest on this distance issue. That being, excluding the possibility that 'she must have been thrown to get that far'. Therefore at this stage, in my view and in the absence of anything more specific arising, the original request by Detective Sergeant Wyver should remain the focus of our attention at this time. Of course in the event that information comes to hand which can focus our knowledge of the circumstances further then it would be appropriate to re-visit this aspect. For the record, although I do not feel the need to say this but it being raised in your email, this is not a decision that has been affected by [imitations of time, interest or money I still believe that it would be an advantage that you examine the 'Photogrammetry Plan' in order that more precis [sic] measurements are available to you. I can have that delivered to you at your convenience, if so please advise where you would like it delivered to. There are also photographs of that area available if you feel that may assist you. As indicated in the email sent on the 18/09/03 I think it would be appropriate to include in your report the physics calculations together with a summary of the results. Only if possible, could that include an estimate of the possible speed that she left the top of the cliff having regard to the distance from the clifftop she was ultimately located. It would then be a matter for the Coroner to determine, if possible, the circumstances of how the deceased left the top of the cliff (jumped or otherwise) having regard to the totality of all of the evidence presented to him. When your report is completed I will have it collected, along with your invoice, which will be addressed promptly. Please advise if the examination of the 'Photogrammetry Plan', involves any additional professional costs. I will be at the Kincumber Police Station for a short time this afternoon and also all day Thursday (25/9/03) and would be happy to discuss anything arising with you over the telephone. Just let me know which number you'll be on and the most convenient time to call you. Thank you for your attention to this matter. Regards, (by email) Paul Jacob [49]
The defendant submitted that it is abundantly clear from Det Insp Jacob's letter that, as he saw it, any opinions A/Prof Cross had expressed to that date, including his oral report to Det Insp Wyver during the inquest, had been made on an incomplete basis, in the sense that they were not based on the photogrammetry plan or such photographs as were available, such that his opinion that the speed of descent was consistent with a jump but not a push must be taken as provisional only, given that he did not provide a written report in which that opinion was expressed as a concluded and considered view.
The defendant submitted that it is also clear from the text of the letter that the investigation into Ms Byrne's death was continuing and that engaging A/Prof Cross as an appropriately qualified physicist, at a time when the investigation was drawing to a close, was also appropriate, as was Det Insp Jacob's primary focus on the coronial jurisdiction. The defendant submitted, that being the case, and having regard to the nature of Det Insp Jacob's communications with A/Prof Cross which preceded the letter, the plaintiff's contention that Det Insp Jacob was intent on using A/Prof Cross as the mainstay of a case that Ms Byrne had been murdered, irrespective of the validity of his views, cannot be supported. I accept that submission.
A/Prof Cross responded to Det Insp Jacob's letter of 23 September 2003 addressing each of the non-exclusive possibilities to which Det Insp Jacob had referred seriatim in dot point. He did that (as the text of the letter makes clear) not because Det Insp Jacob invited a response structured in that way. What Det Insp Jacob requested was a report consistent with the views A/Prof Cross had expressed to Det Insp Wyver in 1998, Det Insp Jacob having politely declined A/Prof Cross's offer of further investigations and experiments. Nonetheless, A/Prof Cross responded as follows: Jumping or stepping off the cliff top - jumping yes, stepping no. Falling backwards off the cliff top - no, too slow Left the top accidentally (through some type of misadventure) - slip or fall, no Been pushed or thrown by one or two persons and her motion interrupted by either a fence, distance, a struggle, efforts to protect herself or otherwise. - pushed no, but thrown by two people maybe. I'd need to video two people swinging a substantial weight then throwing to estimate the release speed. Can do that in one morning and charge an extra $300. Running from or moving away from a danger - unlikely, 3.6 m/s is pretty fast and straight out, not at an angle. [50]
Contrary to Det Insp Jacob's expressed view that from a police perspective that there was no way of knowing how Ms Byrne left the cliff top, A/Prof Cross volunteered the opinion that he could see only two possibilities: "Jump or being thrown by 2 people" [51] . He went on to say that he estimated (he used the word "guessed") the throw speed to be at a maximum of 2 m/s; a matter susceptible, in his view, to simple measurement, before volunteering the comment: "I can barely lift 50 kg let alone throw it, but I'm 60 years old" [52] .
He then said that having regard to the distance from the cliff top to where Ms Byrne's body was found (being 9m), and the height of the cliff (being 30m), that a simple calculation of the speed that Ms Byrne left the cliff top was "between 3.5 and 3.7 m/s" [53] .
The following day, in a further unsolicited email [54] , A/Prof Cross shared his thoughts concerning the launch speed after having asked some tennis players he was filming to throw a 27kg punching bag held end to end after swinging the bag back and forth a few times.
He said the bag was tossed at about 3.3 m/s (he did not make clear whether this was a measured or estimated speed). He went on to say [55] : I would prefer to do this again, more carefully, and also take measurements of jumping speeds etc but in my view this is the sort of test that needs to be done to figure out how the launch speed got to be as high as 3.6 m/s. That launch speed is absolutely clear from the 9m and 30m distances. What is not completely clear is how it got to be 3.6 m/s. I can think of only two ways. A jump or a swing and toss. Pushing gives a launch speed of only about 1 m/s. Female swimmers jump off the block at about 4 m/s, but that's with toes over the edge to get a good horizontal push. Male swimmers jump a bit faster. Was Caroline Byrne a good swimmer?
In a series of handwritten notes (which A/Prof Cross gave evidence were recorded by him in his "Blue Log Book 1" as "comments" which Det Insp Jacob had made in the course of a telephone call to discuss the requesting letter of 23 September 2003) he recorded the following: [56] Paul Jacob called. Said Wood (a) took police next am to Gap and pointed to where [Ms Byrne's body] was, even though no-one could see more than 10 feet through thick fog and (b) went to Morgue and asked to see her chest (as if he had picked her up around chest, thrown her, and wanted to see if there was any tell-tale bruising), (c) took them to spot where fence was closest to edge of cliff.
It was put to A/Prof Cross in cross-examination that from these comments he understood that Det Insp Jacob was "strongly suggesting" that the plaintiff may have thrown Ms Byrne off the Gap. A/Prof Cross agreed that he interpreted that information as a suggestion that the plaintiff may have killed Ms Byrne, but only as one of what he understood to be a number of scenarios the police considered as possibilities. He went on to say that when Det Insp Jacob told him about the so-called "tell-tale bruising" around Ms Byrne's chest, Det Insp Jacob said he did not know what it meant. A/Prof Cross said he did not know what it meant either. He said that they were simply discussing what the so-called bruising could have meant in the context of Det Insp Jacob relating to him a few facts, amongst what A/Prof Cross considered must have been hundreds of facts known to Det Insp Jacob as the officer in charge of the investigation. After he gave that evidence, I asked the following questions: Q. Did that information provide you with a context within which to conduct some experiments on the possibility of Ms Byrne being thrown, by picking her up and holding her around the chest area? A. That was a suggestion that either he made to me or I made to him, just exploring possibilities. It was, there was nothing definite about that. It was a fact of the case that neither of us could really use in terms of, of, of reliable evidence of one sort or the other. Q. But was that the basis or the context in which you conducted the experiments that I saw played on the monitor, where the two men were picking up women, holding them at shoulder height, with a hand it seemed to me somewhere around the chest and throwing the women into the swimming pool? A. In, in terms of the spear throw technique, I thought about the physics of that, and the important part was to throw in line with the centre of mass, in other words through the hips, to gain maximum possible throw speed, but that's only possible if the woman is supported somehow, grabbing hold of the neck or the, or the chest or the shoulders somehow. But that, that technique had absolutely nothing to do - that was totally independent of this business that I've written down here on the 25th of the nine. It, that didn't even occur to me when I was thinking about the spear throw technique. [57]
The content of the conversation in the Blue Log Book 1 extracted above was pleaded at pars 16.22.1-16.22.5 of the FASC as a particular both of Det Insp Jacob's malice and as evidence of his lack of subjective belief in the sufficiency of the evidence to establish the plaintiff's guilt. The plaintiff submitted that the information Det Insp Jacob provided to A/Prof Cross was both irrelevant and prejudicial and ought not have been disclosed or discussed by Det Insp Jacob when engaging a purportedly independent expert to offer an opinion as to how Ms Byrne's body could have reached the location where it was found. Det Insp Jacob responded to that allegation in his evidence by denying that the issues or matters A/Prof Cross noted following a conversation with him were either irrelevant or prejudicial. He said: I have a limited ability to evaluate what precisely will be needed to any given expert in providing their opinion. In particular I have no special ability or training that would permit me to know what a physicist asked to provide an opinion would be assisted by. In part I am guided by the expert as to what further material might be required, but at the outset I had limited means of knowing what was required. [58]
Det Insp Jacob was cross-examined on the content of that note in the proceedings, as to which he gave the following explanation and justification for having shared that information: A. Well I can't recall actually specifically telling him that … Q. His role was to provide scientific evidence about mechanisms by which was or was not possible for Caroline Byrne to land in the place that you thought she landed at the bottom of the cliff, that's correct, isn't it? A. It certainly evolved to that but initially in my dealings with him it was about the mechanics and the speed at which someone would need to leave the cliff top to be about 9 metres out, as given - evidence given in the Coroner's Court. … we evolved over time to that area that you're talking about there. [59]
Even if it might have been unwise or ill-advised to have shared this information informally with an expert witness (a view which I hold), particularly given A/Prof Cross's tendency, as revealed by his subsequent dealings with Det Insp Jacob, to ruminate and speculate as to the circumstances contextual to Ms Byrne's death and to volunteer views about the plaintiff's guilt, since none of the information was false (or known to Det Insp Jacob to be false), disclosing it to A/Prof Cross does not advance the plaintiff's case that Det Insp Jacob should be regarded as a prosecutor, the primary proposition the plaintiff needs to establish before inviting the Court to consider whether his conduct as a prosecutor was tortious.
After Det Insp Jacob had obviously read and given consideration to A/Prof Cross's comments on the various hypotheses he had advanced in his requesting email as to how Ms Byrne left the cliff top, on 25 September 2003 (erroneously recorded in e@gle.i as 25 November 2003) Det Insp Jacob made a further entry in e@gle.i [60] . From that entry it is clear that Det Insp Jacob apparently accepted that Ms Byrne could not have simply allowed herself to fall from the cliff top because she travelled at 3.6 m/s, and could not have stepped or fallen backwards for the same reason and that the further investigations proposed by A/Prof Cross to support his conclusion that she either jumped or was thrown should now be pursued. Det Insp Jacob also recorded in e@gle.i his intention to prepare a formal "consultancy document", together with briefed materials, and to request that A/Prof Cross answer a series of specific questions in a written report.
In a follow up e@gle.i entry on 26 September 2003, [61] Det Insp Jacob confirmed the necessity, as he saw it, for A/Prof Cross to conduct a limited number of experiments to assist in producing his report. He also noted that authority to proceed with the experiments on a consultancy basis was sought and later confirmed by Senior Command.

[39]

The formal requesting letter from Det Insp Jacob to A/Prof Cross

On 25 September 2003 a three page letter [62] was sent to A/Prof Cross in which the matters that had been discussed by the exchange of emails with Det Insp Jacob were reformulated and a formal expert consultancy report requested. By way of introduction the letter included the following: During the course of the Coronial Inquest, Sergeant Mark Powderly of the Police Rescue Squad gave evidence of the recovery of Caroline Byrne's body. The distance issue was a significant one during the Coronial Inquest. [63]
The letter went on to specifically include Sgt Powderly's five page statement of 13 June 1996 together with a video reconstruction of the recovery filmed on 29 May 1996 and transcripts of Sgt Powderly's evidence at the inquest. A photogrammetry plan prepared by Snr Cst Streatfield on 2 March 1999 was included, together with what was described as "three photographs of the relevant areas at the Gap". [64] One of the three photographs was captioned as showing a general view looking to the rock floor from the Gap which was marked with an arrow captioned as showing what was later referred to as Hole B. The photogrammetry plans were also prepared referable to the assumption that Hole B was the cavity from which Ms Byrne's body was recovered.
The letter went on to make the following formal request for expert advice: 1) Can you given an accurate estimation of the speed at which Caroline Byrne was traveling at the time she left the cliff top? 2) Is the distance of approximately 9 meters out from the cliff top, an excessive distance having regard to the other circumstances of this matter? 3) Is the position as indicated, where the body of Caroline Byrne was recovered, consistent with her leaving the cliff top at the approximate point described by Sergeant Powderly (at the bend in the fence where it is closest to the clifftop)? 4) What is the likelihood or otherwise that Caroline Byrne was involved in any or either of these alternative hypotheses: a) Slipped off the edge of the cliff top? b) Fell backwards off the clifftop or from a sitting position off the fence in that area? c) Allowing herself to simply fall from the cliff top? d) Jumping from a standing position from the cliff top? e) Running jump from the clifftop? f) Running from or moving away from a danger? g) Being pushed by a strong single male or two strong males from the cliff top? h) Being thrown by a strong single male or two strong males from the cliff top? i) Being swung by the arm(s) by a strong single male or two strong males from the cliff top? j) By a strong male person (facing her) lifting her from the ground in the area of her chest, whilst moving in a forward motion pushing/throwing her over the cliff top? k) Would you please consider any other reasonable hypotheses during the course of your investigations? [65]
I note that despite the allegation pleaded in par 16.21 of the FASC that Det Insp Jacob declined to formally engage A/Prof Cross until he expressed the opinion that "there are only two possibilities, jump or being thrown by two people", that was not put to Det Insp Jacob in cross-examination, and since the plaintiff did not prepare final submissions referable to the specific pleadings, I shall proceed on the basis that allegation was pressed. In Det Insp Jacob's statement of 28 September 2016, however, he deals with that allegation in a narrative denial. Those denials ought, in my view, be set out in full. They serve to underscore what I am satisfied were Det Insp Jacob's genuine endeavours to maintain an appropriate professional distance in his dealings with A/Prof Cross, despite A/Prof Cross's tendency to volunteer his unsolicited thoughts and ideas about a range of matters and, at times, to seemingly steer the terms upon which he was retained to consult to suit an approach to the issue that he wished to formulate. Det Insp Jacob said: 60. I deny this allegation. I did not at any time decline to continue or extend the retainer of Associate Professor Cross on any conditions, let alone the ones alleged. I did not at any time make any ultimatum or even any suggestion to Associate Professor Cross as to what his opinion ought to be. On 25 September 2003, I sent a request for expert consultancy to Associate Professor Cross. A copy of that letter dated 25 September 2003 appears at tab 16 of PJ-3. 61. I understood that Associate Professor Cross had already been engaged into the investigation of the death of Caroline Byrne by Detective Sergeant Wyver in 1998. 62. In September 2003 I commenced further dialogue with Associate Professor Cross. I understood that he had been asked by Detective Sergeant Wyver in 1998, inter alia to provide an opinion as to whether Caroline Byrne jumped or was pushed, that she had been located about 9 metres from the base of a vertical cliff about 30 metres high. He advised, inter alia, that the distances quoted were consistent with a jump but not consistent with a push. 63. On the 16 September 2003 I communicated with Associate Professor Cross. I had become aware that his professional fees had not been satisfied for the opinion provided to Detective Wyver. In my commination, I sought to resolve the issue of his fees and secure his opinion into a report for production into the brief of evidence. 64. A copy of the email contact between myself and Associate Professor Cross between the 16 September 2003 and 29 September 2003 appears at tab 17 of PJ-3. 65. At that point, September 2003, I did not understand precisely what potential evidence could be provided by an examination of the physics involved in the death of Caroline Byrne. 66. In fact as indicated in earlier answers, my position was that the brief of evidence as it stood at the end of 2003/2004 was that, "Strike Force IRONDALE have concluded that the evidence and information collected by them and referenced within this report and annexures and detailed in the accompanying brief of evidence supports the view that there is a cogent circumstantial prima facie case against Gordon WOOD upon the indictment of the murder of Caroline Therese BYRNE at The Gap, Watsons Bay on or about the 7 June 1995." 67. This was my strong position and that position included the original opinion of Associate Professor Cross. 68. I was not aware of any previous case where the New South Wales Police Homicide Squad, had relied on physics to provide information on the circumstances surrounding a suspicious death. My lack of appreciation of the potential for physics to impact on this investigation is clearly evident in the email/report I forwarded to Associate Professor Cross on the 23 September 2003 at 4.34pm, within which I posit, inter alia, The exact way in which Caroline Byrne left the top of the cliff may never be known, I then give a number of possible alternatives. 69. Associate Professor Cross provided a response to this email/report that same day at 5.14pm. 70. I was open to the possibility that the final or further opinions of A/ Professor Cross could be contrary to the possibility of murder. So much is clear from page 318 of the sufficiency of evidence report in which A/ Professor Cross is listed as one of the witnesses whose "outstanding statements may impact considerations". [66] (Emphasis in original.)
On 26 September 2003 A/Prof Cross sent an email [67] to Det Insp Jacob reporting that he had purchased two 40kg sandbags which he proposed to have a "strong student" throw from rest or after taking a short run. He also observed that caber throwers in Scotland can throw 60kg and Olympic athletes can throw a 7kg shotput with one hand at 13 m/s, being, as he assessed it, twice the kinetic energy needed to throw a 57kg person at 3.6 m/s. He concluded that it "seem[ed] certain that a strong guy could toss a 57kg person at the right speed on his own". He proposed undertaking some filming that afternoon.
The plaintiff relied upon this email, amongst others, as illustrative of A/Prof Cross seeing it as his role to obtain evidence to prove that Ms Byrne was murdered and that the plaintiff had killed her. The plaintiff submitted as follows: The plaintiff submits that A/Prof Cross knew from the five years that he waited to be contacted again by Strike Force Irondale and Det Insp Jacobs letter dated 23 September 2003, his change of mind after Cross nominated a throw as one of only two possibilities, and the information he received about the plaintiff on 25 September 2003 that the scope and length of his role in the investigation was dependent on proving the plaintiff killed Ms Byrne. Cross was desperate to be involved in this case and on and from 25 September 2003 he knew he could only have a continued involvement in this case by proving that the plaintiff killed Ms Byrne. [68]
In the plaintiff's submissions in reply, that submission was maintained on the additional basis that over the course of A/Prof Cross's involvement in the investigation as a prosecutor - that is, on the plaintiff's case, from September 2003 to the date of Mr Tedeschi's advice to Mr Cowdery in February 2006 - the Court would conclude the experiments he conducted and the opinions he proffered "only ever point in one direction".
Irrespective of what is said by the plaintiff to be A/Prof Cross's desperation to be involved in the investigation and the plaintiff's further submission that his conclusions were only ever oriented to a throw as the explanation for Ms Byrne travelling the distance from the cliff top to the point where she landed on the rock floor, that, of itself, has no bearing on whether A/Prof Cross is a prosecutor as a matter of law unless the plaintiff establishes that in proffering those opinions he intended deliberately to mislead Mr Tedeschi and/or Det Insp Jacob knowing that his proffered conclusion that she was thrown to her death was either not open or not objectively supportable or both.
The defendant submitted that there is no proper basis on the evidence for the plaintiff to advance the submission that A/Prof Cross was either "desperate" to ingratiate himself or that he was other than open to considering a range of possible explanations for how Ms Byrne descended to her death. The defendant also submitted that the numerous reports authored by A/Prof Cross that followed upon his first report of 19 November 2003, [69] including, in particular, the second report in June 2004 after the point of recovery had been re-appointed from Hole B to Hole A, showed his willingness, upon receipt of further information, to abandon or modify his earlier opinions or conclusions including the results he derived from the experiments he conducted and his detailed description of how the results were achieved. The defendant submitted this counters against the submission that A/Prof Cross was desperate to be involved in the case, and determined to prove Ms Byrne was murdered, to ensure his continued involvement in the investigation and the trial and even less that he intended to dishonestly mislead Mr Tedeschi. The defendant also emphasised that in the draft report sent by email at 12:40pm on 29 September 2003 [70] (as to which see [345] below), A/Prof Cross's view that there was nothing "in the physics of the problem" to allow him to distinguish "between a jump or a throw" is hardly the opinion of an expert said to be desperate to prove a murder.

[40]

The draft of the first Cross report

The allegation put to A/Prof Cross in cross-examination that he deliberately deleted from his computer records the first report sent in draft to Det Insp Jacob by email on 29 September 2003 when he answered a subpoena calling for the production of all email correspondence with the investigating police at the plaintiff's trial would also, if proved, be relevant only to proof of the elements of the tort of malicious prosecution. The plaintiff did not advance the submission that the deletion of the draft report, either of itself or in combination with other evidence, establishes the dishonesty that is fundamental to the plaintiff's case that A/Prof Cross is a prosecutor at law. That also follows since the alleged deletion of the draft first report and parts of the emails that followed occurred, if it occurred at all, in 2008 which is after the time, on the plaintiff's case, that he acted as a prosecutor. Additionally, since the draft report and the full text of the emails were received and retained by Det Insp Jacob, any suggestion that it was A/Prof Cross's intention to mislead Det Insp Jacob by the views he expressed in those emails is neutralised.
Notwithstanding, the plaintiff maintained the submission that the draft first report and the related emails were deleted or deliberately edited by A/Prof Cross to conceal from the plaintiff's lawyers that he had undertaken no relevant experiments to support the proposition in the first report that a 57kg woman could be thrown faster than she could jump, and to conceal his lack of expertise generally in formulating any appropriate experiments to test that proposition. This was said to reflect adversely on his credit generally. I have already observed that adverse credit findings are unlikely to be determinative of the question whether A/Prof Cross should be regarded as a prosecutor.
The defendant submitted that the draft report does not exclude suicide as a possibility but, rather, that A/Prof Cross was unable to distinguish from what he called "the physics of the problem" between a deliberate jump and a deliberate throw. This undercuts the plaintiff's attribution of a motive to A/Prof Cross to deliberately delete the draft report when obliged to produce it under subpoena. In the draft report, A/Prof Cross concluded, and in categorical terms, that Ms Byrne did not trip or accidentally fall and neither was she pushed, each of which would have generated a low launch speed in circumstances where the launch speed he calculated was 3.8 m/s or greater.
The defendant also submitted that A/Prof Cross has proffered in his evidence in these proceedings a reasonable account of the circumstances in which the emails were incomplete when he sought to retrieve them to answer the subpoena (namely as a result of a computer malfunction) and the difficulties he encountered in rebuilding lost data. The defendant submitted this evidence would deprive the Court of any reasoned basis for finding that A/Prof Cross deliberately deleted materials so as to deflect the plaintiff's forensic enquiries at trial into the provenance of his ultimate opinion that Ms Byrne was thrown to her death.
While A/Prof Cross's explanation for the deletion of the draft report is an available explanation, I am by no means persuaded that it is the only explanation for what I suspect might well have been his deliberate manipulation of the full complement of materials he was obliged to produce to the Court at the plaintiff's trial. In his evidence he admitted to acting "dishonourably" when served with a subpoena: Q. You received a subpoena and then you, as you say in your book, attempted to obtain $30,000 to produce the documents, didn't you? A. I did say that but as a matter of fact the - all the material requested was presented to the Supreme Court six weeks before the trial started. Q. You're talking about the CD that it was on, weren't you? A. All the material that was requested-- Q. It was on a compact disc, wasn't it? A. No, there was, there was a whole bunch of material, including video film, copies of logbook material and emails. And the emails I had to rescue from a crashed disc and I put them on a floppy disc and included that with the rest of the material which I handed into the Supreme Court six weeks before the trial started. Q. You put them in a format that you knew Mr Bowe wouldn't be able to read or access, didn't you? A. No, no, I didn't. I, I thought he might have difficulty because-- Q. You thought he might have difficulty reading them? A. I, I used only Macintosh computers throughout my career and I figured that most legal people use PCs and they may not be able to read it if they didn't have a Macintosh but I since discovered that's no longer a problem. Q. But you see, you did, as you say in the book, in an attempt to get more money from Mr Bowe so that he'd get a readable copy, didn't you? A. Not more money, any money at all. Q. But you see, what you're saying is you put them in a format that you thought Mr Bowe might have trouble reading so that you could get a payment? A. I'd get a - sorry, get a-- Q. A payment? Money? Cash? A. Yes. Q. Did you think that was an honourable thing to do? A. I explained it all-- Q. As an - please, let me add this. As an independent impartial expert, did you think that was an honourable thing to do? A. I've explained it in the letter that was subpoenaed-- HER HONOUR … Q. ... Could you answer counsel's question, please? The question is did you consider that an honourable thing to do given your role as an independent expert bound by the Expert's Code of Conduct? It's a simple question, can you answer it please? A. I understand what you're asking. It's not particularly honourable, I'm not particularly proud of it. [71]
I am also unable to see how the material allegedly deleted has relevance to the question whether A/Prof Cross deliberately and dishonestly misled Mr Tedeschi or Det Insp Jacob such as to cause their discretion as prosecutors to miscarry. The position might be otherwise were the draft report different in material respects from the opinions expressed in the settled and served first report. Upon a comparative reading of the close-typed seven pages of the draft report with the close-typed twenty pages of the furnished report, I am unable to see any relevant point of contrast or contradiction between them, particularly given the experiments A/Prof Cross undertook before providing the settled first report, experiments which he considered provided a more reliable means of assessing launch speeds by throwing volunteers into a swimming pool.
The day after sending the draft report by email, A/Prof Cross sent an email in which he said, having reflected on his draft report, he wished to add the following: It is unlikely that Caroline Byrne was picked up and thrown over the fence in a vertical position since her legs would not have cleared the fence. Also unlikely is a horizontal swing holding the arms and legs since that would involve a high launch angle to clear the fence, and hence a low horizontal launch speed. The most obvious throwing method, from a safe position behind the fence, would involve a throw from shoulder height with one person holding the chest area and the other holding the upper legs. [72]
Within approximately half an hour, Det Insp Jacob responded to that email, acknowledging receipt of the draft report together with the additional opinion in the immediately preceding email which he understood was to be read with the draft report. Det Insp Jacob proposed that the settled report include, as a matter of structure only, a summary at the beginning of the report referable to the questions which were raised in his formal requesting letter. Det Insp Jacob concluded the email by thanking A/Prof Cross and indicating that he would place a telephone call to him over the forthcoming days.
This puts to rest any suggestion that Det Insp Jacob was misled by what were A/Prof Cross's views as at 30 September 2003 upon reading the draft report, since those views ultimately found further expression in the settled form of the report.
In his evidence in these proceedings, I invited A/Prof Cross to explain what experiments involving the throwing of dummies and volunteers added to the "physics of the problem" as he described it in his email of 30 September 2003 that were not obvious to him before any poolside experiments were conducted. He gave the following evidence: [73] Q. What can you tell me added to the physics of the problem, as you describe it in your email, when you did undertake the experiments of throwing the women into the pool? What did you learn that was-- A. I understand the question. Q. --not obvious to you beforehand? A. My, my initial experiments were throwing a dummy obtained from the Fire Brigade. It turned out that the dummies were made of canvas, they were short and stumpy, the legs were short, and they were slippery, it was difficult to hold onto them, sorry, and the I didn't think the results were particularly reliable, but it gave me a good indication of possible throwing speed, and after that I realised it was essentially to study to throw a real person rather than a heavy weight-- Q. What did you learn from throwing real people that-- A. That real people bend when in the arms and legs if you push them on their arms and legs. Q. What did that state of realisation add to the physics of the problem, as you describe it? A. Okay. Q. Self-evidently real people are malleable and canvas dolls are not, but what did that add to the physics of the problems, using your turn of phrase? A. I understand. If you throw a person by pushing them on the arms or the legs then clearly the arms and the legs bend and the, the arms and the legs are not representative, on their own, of the whole weight of the person, and so a thrower cannot exert maximum force on a person by pushing on the arms or the legs. In order to exert maximum force to get maximum throw speed the thrower would have to exert a force through the centre of mass. Throwing a, a dummy, on the other hand, is easy to exert a force through the centre of mass and, and get maximum throw speed. So throwing a person showed me that very low speeds might be obtained if the thrower pushed purely on the arms or the legs, and that became clear and obvious once I did those-- Q. Was that the early evolution of the spear throw technique? A. Correct. Q. Which was your favoured conclusion? A. Correct. MCCLINTOCK Q. All those things would have been obvious to you when you wrote the email on 30 September, wouldn't they? A. In 2003? Q. That is, a dummy is different from a human. A. No, additionally when I started the experiments I thought it would be sufficient to throw a dummy and, and I discovered when I, when I did those experiments that the results were misleading in terms of throwing a, a real person. Q. The reason you thought that was that you had absolutely no expertise in this area at all, did you? A. I had not previously undertaken experiments on throwing people, no. [74]
This evidence is significant for what it does not reveal about the limitations on the poolside experiments. While humans might well perform differently to moulded "dummies" when thrown (as A/Prof Cross predicated), his experiments did not (because they could not) simulate throwing a struggling person and failed (as I will later discuss) to adequately validate how an unconscious and limp woman could be thrown to achieve the necessary launch speed to reach either Hole A or Hole B.

[41]

Email correspondence between A/Prof Cross and Det Insp Jacob following service of the first draft report

By successive emails on 2, 3, and 8 October 2003, [75] A/Prof Cross requested additional information, including time of death and rates of advancement of rigor mortis. He also proposed that further investigations be undertaken, including an assessment of the degree of ambient light at the cliff edge at the Gap to assess its impact on the possibility, or not, of anyone seeing the edge of the cliff. In an email of 2 October 2003 [76] he volunteered his thoughts that a run and a jump might be impossible in the dark as it would also make it difficult for a person to throw someone over a fence. These queries culminated in him expressing the view in an email on 14 October 2003 that if he were in a pitch black environment, there is no way he would run or jump (presumably off a cliff). Det Insp Jacob did not respond to these emails.
In the same email sent on 14 October 2003, A/Prof Cross said: The question about visibility of the fence bothers me the most. And whether it took one or two people to throw her the distance, I can't see him picking her up vertically and heaving since her feet would not clear the fence (as required for a high speed throw). [77]
A/Prof Cross's musings continued to be expressed in a further email of 21 October 2003 when he enquired about the degree of moonlight. He said: Am I barking up the wrong tree or do you think it is worth while taking a look? Maybe you know the answers already. I don't need to go there myself. I just need someone to tell me if they can see the ground 2 hours after sunset or is it pitch black? Last night I stayed 3/4 hr after sunset and I could still see the ground in the twilight. Then I had to go home. [78]
Receipt of these three emails were noted by Det Insp Jacob in an e@gle.i entry [79] of 25 November 2003, albeit without commentary.
Det Insp Jacob did however arrange for the poolside experiments which A/Prof Cross proposed be conducted. In corresponding with the various female volunteers (all police officers) who had agreed to participate in the experiments Det Insp Jacob said: From our perspective the goal is simply to assist the Professor in determining the range of launch speeds possible when throwing (in a number of different ways) a person of similar weight to Caroline Byrne from the side of the pool. … the results of which will form part of his final report … You should be [sic] follow his directions. [80]
On 23 October 2003 the results of the throw tests were reported by A/Prof Cross in an email to Det Insp Jacob: The throw speeds today were all too low (17 throws). We need a launch speed of 3.8 m/s or more. Most of the throws were around 2.6 to 3.1 m/s Highest speed = 3.81 m/s was actually a running dive by Camille on her own. The next highest speed was 3.68 m/s which was a throw by one person who took a bit of a run before throwing. Two people swinging back and forth, holding wrists and ankles got 2.73 m/s Two people throwing from chest height got 3.33 m/s Camille doing a standing dive on her own got 3.35 m/s We need to try two more types of throw: 1. A mannequin throw where one hand is right up between the legs to get a firm and solid part of the body to throw (the legs are too floppy). 2. A cartwheel type of throw by one person holding onto one wrist and one ankle and swinging around one full circle before release. It turned out that a hammer throw by one person holding around the chest was not possible. [81]
The fact of the experiments having been conducted was also reported by Det Insp Jacob in e@gle.i. [82]
After reviewing the video recording of these tests, A/Prof Cross indicated in an email [83] to Det Insp Jacob on 27 October 2003 that the fastest throw (of 3.68 m/s) was where the volunteer's weight was taken on the shoulders of the thrower so that her arms were free to project herself forwards horizontally at maximum speed. He also reported that the volunteer was pushed from one hip, and in the middle of her body to avoid rotation around her centre of mass and a loss of energy in rotation. (This would appear to be the genesis of the spear throw.)
The plaintiff submitted that A/Prof Cross's state of mind in conducting these experiments is revealed by him also reporting on 23 October to Det Insp Jacob that: The throw speeds today were all too low (17 throws). We need a launch speed of 3.8 m/s or more. [84] (Emphasis added.)
In the plaintiff's submission it is at least implicit that A/Prof Cross had predetermined the outcome he hoped to demonstrate from the poolside experiments, because he used concepts such as throw speeds that were "too low" and "needing a launch speed of 3.8 m/s or more". In the defendant's submission, that language, whilst suggestive of the conduct of an experiment designed to prove a particular proposition, on closer analysis indicates nothing more than an experiment directed to whether a particular situation (namely a greater launch speed) was possible. In short, the defendant submitted that there was nothing to support the submission that A/Prof Cross's approach to the first raft of poolside experiments was either unscientific or that he set out by experimentation to prove a predetermined conclusion. The integrity of the experiments and the environment in which they were conducted will be analysed later.
By email on 3 November 2003, A/Prof Cross advised Det Insp Jacob that he was close to finalising his calculations and measurements for inclusion in the final settled report. He offered his conclusions and invited Det Insp Jacob's comments: If Caroline Byrne was thrown from a point just inside the safety fence, then it was not by one person. The throw speed required is about 4.53 m/s. Throwing measurements revealed that the throw speed for a strong male throwing a female of about the same weight as Caroline Byrne (57 kg) was typically about 2.8 m/s, with a maximum throw speed of 3.68 m/s. A maximum throw speed of 4.69 m/s was measured using a 34 kg dummy. If Caroline Byrne was launched from the point on the cliff edge closest to the landing point [at that time believed to be Hole B], then the launch speed required is about 3.88 m/s. Only elite athletes can jump or dive from a standing start at a speed greater than 3.8 m/s. A running jump or dive would also have been very difficult under the circumstances, given that cliff top is uneven, uphill, the night in question was very dark and a typical female running dive speed is about 3.8 m/s under ideal conditions. These calculations and measurements suggest either that Caroline Byrne was thrown by two people or that she accidently ran over the edge. [85]
Further throw tests conducted on 7 November 2003 [86] , this time with a 57kg dummy, resulted in a hypothetical throw from inside the safety fence at the Gap of 4.5 metres per second or more, and a throw or jump from the cliff edge closest to the landing point (Hole B) of 3.8 metres per second. In A/Prof Cross's view, this ruled out a throw by one person, irrespective of the launch point, as it did a throw from behind the safety fence even with two people, unless the people were "much stronger" than the throwers he used in the experiments.
Variations on the "throw experiments" were the subject of ongoing commentary and report by A/Prof Cross by email to Det Insp Jacob, none of which Det Insp Jacob responded to, but which were noted in an e@gle.i report of 25 November 2003 in summary. [87] It is also clear that A/Prof Cross attended at the Gap during this period. On one occasion, A/Prof Cross indicated that he would benefit from a "profile of the slope at the top platform area of the Gap cliff top" [88] . Det Insp Jacob noted that arrangements were to be made for Det Streatfield to liaise directly with A/Prof Cross on that issue.

[42]

The (settled) first Cross report: 19 November 2003

It is clear from an email that A/Prof Cross sent after furnishing his first report dated 19 November 2003, [89] that in concluding that the most likely cause of death was as a result of Ms Byrne running over the edge of the cliff in the dark, and a less likely possibility that she was thrown by one or two people, he not only proceeded on the understanding that Hole B was the point of landing, but ignored the configuration of her body on landing. So much is clear, not only from the emails he sent after service of the first report but from the further experiments he proposed be undertaken in order to take account of those objective facts.
It would also appear that it was as a result of A/Prof Cross's further consideration of the configuration of Ms Byrne's body on impact that Det Insp Jacob alerted those to whom the Sufficiency of Evidence Report was delivered that a supplementary report from A/Prof Cross would be provided as soon as it was available.
That said, throughout the Sufficiency of Evidence Report, including in the Executive Summary, Det Insp Jacob cited reliance upon A/Prof Cross's first report to discount what Det Insp Jacob described as: [A]ny accidental trip, fall, slip, tumble or other low trajectory method of leaving the cliff top. [90]
In Det Insp Jacob's analysis of all of the evidence available to Strike Force Irondale by the date of its termination in January 2004, any inference that Ms Byrne's death was an accident or misadventure was in his view capable of being excluded beyond reasonable doubt. The case which he considered it was open to establish (again where A/Prof Cross's first report was cited as the source) was as follows: Strike Force Irondale alleged that about 11.30pm [on the evening of 7 June 1995] the argument heard [by Mr Doherty] culminated into Gordon Wood, alone or in the company of the second male, violently attacking Caroline Byrne and as a result she was forced to run from the cliff top to avoid danger or she was thrown from that point. Either way this resulted in her death after impacting upon the rocks below The Gap. Strike Force Irondale assert that Caroline could not have left the clifftop through accident or misadventure either by a slip, trip, fall, tumble over the edge, or by allowing herself to simply fall or leave the clifftop in any other manner which involved a low trajectory launch. [91]
In an e@gle.i report of 25 November 2003, [92] Det Insp Jacob recorded that he met with A/Prof Cross on 19 November 2003 to discuss the report and any other concerns that A/Prof Cross may have had. That meeting was noted in A/Prof Cross's Blue Log Book. It was the subject of the cross-examination of Det Insp Jacob in the proceedings, A/Prof Cross having attributed to him in a notebook entry views about the strength of the case which Det Insp Jacob said were neither his views nor views expressed by him.
The views attributed to Det Insp Jacob by A/Prof Cross were as follows: Will put case to DPP in a few months but he expects case is not strong enough so it will then go to coroner where any evidence at all is admissible, unlike actual court case where rules are much stricter. [93]
Det Insp Jacob disagreed that he was ever of that view or that he said what A/Prof Cross attributed to him. Det Insp Jacob gave evidence that it was not a matter he would discuss with a consultant expert in any event. He said his firm view as at 19 November 2003 (as evidenced in the Sufficiency of Evidence Report submitted in January 2004) was that "the case" was sufficient to support the laying of charges. He went on to say, however, that whether a prosecution would ultimately be initiated was always a live issue given that the second phase of the investigation was under the direction of the Coroner and, in the event that legal advice from the Legal Operational Service and/or from the ODPP did not support the laying of a murder charge after the work done by Strike Force Irondale, it may revert to the Coroner for his further consideration. I accept that Det Insp Jacob's actual opinion as at 19 November 2003 was as he explained in his evidence. I am unable to resolve with any certainty whether he expressed himself to A/Prof Cross as A/Prof Cross claims he did, or whether A/Prof Cross has misinterpreted something said to him. Either way, I do not see that it advances the plaintiff's case that Det Insp Jacob should be regarded as a prosecutor or, even were I of that concluded view, that it is of any particular weight in establishing either of the elements of the tortious conduct the plaintiff seeks to attribute to him.
It was also put to Det Insp Jacob in cross-examination that by 19 November 2003, up to the date of his submission of the Sufficiency of Evidence Report on 8 January 2004, he had all of the significant evidence ultimately relied upon to charge the plaintiff with murder; the exceptions being the resolution of what emerged as the change in the landing place from Hole B to Hole A in the second to fifth reports of A/Prof Cross, variously furnished between July 2004 and March 2006. Det Insp Jacob disagreed with that assessment identifying what he described as "a considerable body of material" [94] in addition to the reports of A/Prof Cross which was assembled after January 2004, including the reports of Prof Elliott and Prof Fulde, as well as a number of other clarifying statements from witnesses who had earlier provided statements to officers of Strike Force Irondale.
The plaintiff invited the Court to reject Det Insp Jacob's evidence and to accept A/Prof Cross's notes of 19 November 2003 as a reliable contemporaneous record of Det Insp Jacob's actual assessment of the strength of the prosecution case as at 19 November 2003. The plaintiff further submitted that the only reason the matter was being referred to the ODPP at all was to deflect political and media pressure from the NSW Police. The plaintiff submitted that attitude (supported in a sense by A/Prof Cross's note) evidences a subjective want of reasonable or probable cause on the part of Det Insp Jacob as a prosecutor, a position that the plaintiff submitted did not materially change from 2004 when the brief of evidence was assembled, to 2006 when Det Insp Jacob charged the plaintiff with murder.
That submission is squarely contradicted by the detail given in Det Insp Jacob's statement of the number of reports and statements that were obtained in 2004 and following, as it is by the detailed analysis of the results of the three phase investigation in the Sufficiency of Evidence Report. Further, I reject the plaintiff's submission that Det Insp Jacob's referral of the matter to the ODPP was to deflect political and media pressure. The course of the investigation by Strike Force Irondale under Det Insp Jacob's command, together with what I regard as his conscientious and cautious approach as a senior investigator, including having to contend with an expert in the manner and persuasion of A/Prof Cross, satisfies me that his motivation, at all times, was to thoroughly investigate the sufficiency of the evidence that had been assembled by Strike Force Irondale to support a charge of murder against the plaintiff - a person who he considered was involved in the death of Ms Byrne and a suspicion which he regarded as warranting close consideration by the prosecuting authorities.

[44]

Deletion of the word "accidentally" from the first report

In cross-examination of both Det Insp Jacob and A/Prof Cross a great deal of attention was directed to the deletion of the word "accidentally" from the draft report in the final version at Det Insp Jacob's suggestion. It seems to me, however, that it is at least reasonable to assume that this was not an attempt by Det Insp Jacob to manipulate or skew the conclusions which were A/Prof Cross's to express, but rather to ensure that A/Prof Cross did not trespass into volunteering views that were based on nothing other than supposition. Given the content of A/Prof Cross's emails to which I have referred above (many of which, as I have noted, include unsolicited musings and volunteered thoughts of no conceivable relevance to the furnishing of the opinion of an expert), it is also reasonable to assume that Det Insp Jacob's concern was to ensure that the (final) first report was consistent with the basis upon which A/Prof Cross was retained as a forensic consultant, and that he did not venture into areas that were not his to be concerned with. Importantly, and of potentially greater significance, is the e@gle.i report of the meeting of 19 November 2003 [97] which records Det Insp Jacob's discussion about the inclusion or deletion of the word "accidentally" in the summary conclusions expressed on the first page of the report, and that the issue was discussed and resolved with the word "accidentally" being deleted due to the possibility of it "leaving a false premise".
In cross-examination, A/Prof Cross accepted that it was at Det Insp Jacob's suggestion the word "accidentally" should be deleted from the first report. When asked in cross-examination as to what he considered Det Insp Jacob might have meant when he described the inclusion of the word "accidentally" as leaving a "possible false premise", he said: It may have been that she could have deliberately run over the edge, so if I used the word "accidentally" then I'm implying it wasn't deliberate, so I think Detective Jacob was correcting me there. [98]
When Det Insp Jacob was cross-examined about the same issue, he said: Reflecting back on it, I can't recall what was going through my mind at the time, but the word "accidentally" assumes all sorts of things and I don't think it was an appropriate word to use in that report. [99]
He was then asked: Q. It's the sort of word that would suggest that my client had nothing to do with Caroline Byrne's death. That's right, isn't it? A. It would fall into the category of what the coroner found either accident, suicide or homicide. [100]
On one analysis, the deletion of the word "accidentally" in the passage of the first report extracted above does not skew the conclusion from a possible suicide. To the contrary. With the word "accidentally" left in, A/Prof Cross's conclusion that Ms Byrne either ran and jumped off the cliff, or was thrown, cannot follow. It is hardly conceivable that she "accidentally" ran off the cliff at such velocity so as to achieve the launch speed required to reach Hole B, the landing point considered by A/Prof Cross when submitting his first report, both in draft and final form. That being the case, it is difficult to sensibly attribute mala fides to Det Insp Jacob proposing the word "accidentally" be deleted, or to A/Prof Cross in accepting that it should be deleted. While this analysis was not proffered by either the plaintiff or the defendant in final submissions, I consider it is an available analysis.
The fact that it was only in the process of discovery in these proceedings that it became clear the word "accidentally" was removed does not alter my finding. Having recorded both the fact of the discussion with A/Prof Cross and the basis for the recommended removal of the word "accidentally" in the e@gle.i database, an official record of the ongoing investigation, is further evidence, in my view, of a lack of mala fides on the part of Det Insp Jacob.
In final submissions the plaintiff submitted that the meeting on 19 November 2003 was illustrative of the state of mind of both Det Insp Jacob and A/Prof Cross. It was submitted that the Court would draw the conclusion from Det Insp Jacob's implied insistence that "accidentally" be removed that he intended that the report would be consistent with murder and that it would exclude any hypotheses other than murder. I am satisfied that nothing contained in the record of the meeting is capable of supporting that submission.
Further, that there might have been a discussion about the comparative processes of a coronial inquiry and trial procedure at the meeting on 19 November 2003 as the plaintiff submitted is a wholly inadequate basis upon which to conclude (as urged by the plaintiff) that A/Prof Cross knew, from what he was told by Det Insp Jacob, that the case would not proceed further unless he provided an opinion which would exclude the possibility of suicide. A/Prof Cross's view, expressed in the first report, that the most likely cause of death was that Ms Byrne ran over the cliff to her death, is contrary to what the plaintiff contends was the effect of the meeting on 19 November 2003, since A/Prof Cross has clearly not done what it is alleged Det Insp Jacob asked of him, namely, provide a report which excluded suicide. Notwithstanding that analysis, the plaintiff maintained the submission that the content of the first report establishes that the objective of his consultancy (presumably as A/Prof Cross interpreted it) was to prove Ms Byrne was murdered. The plaintiff submitted that was a conclusion the Court would draw for the following reasons: First, a single moderate speed running dive was performed. The first result got the required velocity and no further experiments were conducted. This result however was used with other factors like slope, uneven surface, and lighting conditions to state that a jump would be difficult. Almost all the initial experiments were to determine if someone could be thrown to the recovery location. Despite none of the single person throws making the required speed for any location this was left "as a less likely possibility" in the report. [101]
The plaintiff went further to submit that by assessing the possibility that Ms Byrne's death resulted from her running over the edge of the cliff in the dark, but failing to consider the position in which she impacted with the rocks below, namely head first and wedged into a rock formation waist deep, is a further illustration of A/Prof Cross's lack of expertise to express the opinion in the first report illustrating that he "selectively relied upon qualifications to express the opinions he wanted, and he knew Det Insp Jacob and the police wanted". [102]
In his submissions in reply, the plaintiff maintained the submission that Det Insp Jacob's objective in retaining A/Prof Cross as a consultant, and A/Prof Cross's purpose in providing his first report in that capacity, was to prove Ms Byrne was murdered. The plaintiff submitted that conclusion is mandated when account is taken of the reasons why running experiments were commenced after throwing experiments failed to give the desired result; the failure in the first report to exclude throwing as a possibility despite the experimental results which were inadequate to make out the case that she might have been thrown; repeating results on jump speeds despite having conducted a single successful test of a jump speed in excess of 3.8 metres per second; and Det Insp Jacob's use of the report as part of the evidence on which he relied in expressing the views he expressed in the Sufficiency of Evidence Report that suicide could be excluded beyond reasonable doubt.
In considering that submission, account must be fairly taken of the series of propositions put to A/Prof Cross in cross-examination and his answers: Q. I want to go to something to conclude my cross-examination of you. I want to make some suggestions to you. First, from September 2003 when you came into this you saw it as your role to provide the police and the prosecutors with opinions that would prove Ms Byrne was murdered by my client, didn't you? A. Totally incorrect. Q. You certainly yourself came to believe, didn't you, that he'd murdered Ms Byrne? A. Or, or some other person. Yes. Sorry, some other male had, had thrown Caroline Byrne, yes. Q. You saw it as your role in the investigation and prosecution of my client for murder from September 2003 to investigation yourself and confirm the factual assumptions on which you were providing your opinions, didn't you? A. No, I, I only - I had one objective in mind and that was to determine - essentially determine - how Caroline Byrne landed so far out from the cliff and, and the two possibilities were either a, a jump or a throw and I wanted to undertake measurements to see if I could tell the difference. Q. You conducted the factual investigations in question such as the measurements to support your opinion that Ms Byrne was murdered, didn't you? A. No, I came into the investigation knowing what I'd already told Detective Wyver that she'd probably jumped. So - and at, and at, and at the end of my first investigation I still believed that she had jumped. So I undertook measurements and let the measurements stand by themselves. Q. In fact, at the end of the first report you believed she'd run off the cliff, didn't you, not jumped? A. Correct. … Q. You deliberately slanted the experiments you did to support a conclusion that Ms Byrne was murdered, didn't you? A. No, no, I disagree with that. If, if you read my reports carefully, I, I think you're presenting a very biased view of my experiments. … Q. You deliberately placed interpretations on the results that supported a conclusion that Ms Byrne was murdered, didn't you? A. Sorry, what's, what's that? Q. You interpreted the results you came(as said) in such a way intentionally to support a conclusion that Ms Byrne was murdered? A. No, the results indicated that a woman of average athletic ability would not have been able to dive into hole A, whereas a strong man would have been able to throw Ms Byrne into hole A, that was my essential conclusion. [That ultimately was not ultimately expressed until the 5th report which followed the 4th report which reposition the point of recovery from hole B to hole A] [103] .
For his part, in the e@gle.i report of 25 November 2003, [104] Det Insp Jacob emphasised that the report of A/Prof Cross should be read in full to ensure an appreciation of alternate hypotheses which are discussed or discounted. He noted that issues such as trajectory, speed, possible jumping distances, pushing measurements, throwing speed and energy, throwing measurements, running measurements, and a concluding summary and appendix were also discussed and described in detail. I do not regard this entry as supporting the plaintiff's submission that Det Insp Jacob only retained A/Prof Cross to "prove" Ms Byrne was murdered. The submission is also contradicted by the terms of the formal consultancy letter and the reasons that A/Prof Cross was retained (as discussed earlier).
For reasons which I can only attribute to the way in which A/Prof Cross came to be retained as a consultant on 25 September 2003, in the preparation of his first report he did not take into account the physical presentation of Ms Byrne's body wedged in a crevice of rocks at the base of the cliff. This much is clear from the emails of 24 and 25 November 2003 [105] where A/Prof Cross raised, apparently for the first time, the "head first" landing into the crevice as having a bearing upon the mechanism of her descent. As will be obvious from what follows, it appears that it was A/Prof Cross's continued musings over the significance of that factor, and his reconsideration of the place on the cliff edge from which he had assumed she was launched, that ultimately led to a site visit at the Gap being convened on 6 January 2004, attended by Sgt Powderly and other specialist police officers.
On 24 November 2003 [106] , Det Insp Jacob received another unsolicited email from A/Prof Cross with the subject heading "Head first" in which he recorded his view (not expressed in the first report) that Ms Byrne landing head first into the crevice was inconsistent with her being thrown. He said, essentially, that all the throws undertaken in the poolside experiments were with the body of the volunteer or dummy launched from a horizontal position, travelling side on through the air and landing side on. He surmised that if Ms Byrne ran over the edge: [T]he last forwards thrust was from her back foot. That would cause her to rotate forwards since her front foot landed in thin air. ... Landing on the head is one of several possibilities depending on the rate of rotation. [107]
To address these concerns he proposed undertaking further experiments (at additional cost). Det Insp Jacob responded, [108] noting that the inclusion of Ms Byrne's head first landing might be by way of an addendum to his final report, but that he did not consider further experimentation would advance the issue.
On 26 November 2003, [109] A/Prof Cross sent an email to Det Insp Jacob. After noting there were no abrasions below Ms Byrne's knees (presumably because he had accessed the autopsy report), he considered it difficult to explain how she landed head first (into the crevice), if she landed head first. He went on to say: The easy way out is to assume it was a dive rather than a run. It would be nice to film or just watch someone running off the edge of a high diving board into a pool. Would [Ms Comina] oblige? Can you ask your kids to have a go? Or someone else's kids? A belly flop from a large height might not be a good idea though. [110]
Det Insp Jacob did not respond to that email.
On 5 December 2003, in A/Prof Cross's Blue Log Book [111] under a heading "Entry Angle", he summarises various sources of information (as he understood them to be) as to how Ms Byrne was found head first in a crevice at the base of the rocks. It would seem from his notes that he then set out, unilaterally, to consider the entry angle or angle of trajectory (from the cliff top) to account for Ms Byrne being positioned as she was found. Of critical significance is the entry in the log book which accompanied a two-dimensional line drawing of a crevice between rocks, presumably by reference to a photograph of the landing point that had been provided to him with the requesting letter of 25 September 2003 where Hole B was marked as the landing point. That was not a photograph taken in the early morning of 8 June 1995 because no photographs were taken, but a photograph taken at a later time for the purposes of preparing his report. He records in his log book that entry from some angles and not others are both "OK" [112] and "Not OK", [113] apparently a reflection of his own thoughts after reading Sgt Powderly's statements.
On 6 December 2003 his "thoughts" are transcribed into an email to Det Insp Jacob. After summarising his understanding of Sgt Powderly's evidence at the inquest, he invited Det Insp Jacob to ask Sgt Powderly two questions: 1. Could she have actually come from the rock platform to the south [that is a direction other than where Sgt Powderly had suggested] and then ended up with her legs and/or body pointing in a different direction? 2. Does the shape of the crevice allow for a head-first entry from the rock platform? For example, if the crevice slopes upwards to the north then an entry from the south might be impossible. [114]
He went on to say: I estimate that she came from the south platform head first, like in a head first dive, with the body at an angle about 14 degrees away from the vertical. For this to happen, the opening in the crevice needs to have a wall on the south side that is more than 14 degrees away from the vertical. Or the gap must be wide enough to allow for such an entry. [115]
In an email sent on 19 December 2003, A/Prof Cross said that he had considered the video he had been sent (clearly the 1996 reconstruction video in which Sgt Powderly participated) but said he could not get a good impression of the "shape of the crevice". He went on to say the matter was: [N]ot urgent, but if someone happens to go down there, maybe you could ask them to take some photos of the crevice, preferably with someone or something in there to get an idea of the scale. [116]
On 7 December 2003, Det Insp Jacob contacted Sgt Powderly by email. He summarised the questions which he said had been posed by "a professor of physics" [117] and suggested that Sgt Powderly might think it easier to speak to him directly. Det Insp Jacob offered to provide contact details.
It would appear that Sgt Powderly first contacted A/Prof Cross by telephone on 18 December 2003 [118] but without leaving a telephone number, motivating A/Prof Cross to contact Det Insp Jacob to ask for the number. A/Prof Cross was ultimately advised that Sgt Powderly would contact him when he was available [119] . Det Insp Jacob also indicated in an email of 19 December 2003 [120] that Sgt Powderly may have some photos of the crevice, but, if not, they could be supplied. That prompted a response from A/Prof Cross in the following terms: The point of the exercise would be to determine if entry from the south was possible or not possible. If not possible, then the only alternative is a throw from near the corner post. [121]
That analysis of the course of correspondence between A/Prof Cross and Det Insp Jacob after A/Prof Cross furnished his first report and before Det Insp Jacob furnished the Sufficiency of Evidence Report (although it appears that the preparation of the Report was well under way by this time) runs directly counter to the plaintiff's unqualified submission that after finalising the first report A/Prof Cross continued his investigations with the assistance and consent of Det Insp Jacob, since it fails to account for the contact being at A/Prof Cross's initiation after he realised the significance (or potential significance) of the position of Ms Byrne's body to the views he had reported upon. That submission was, in turn, advanced to support the further submission that A/Prof Cross was acting as a "de facto" police officer. That submission is of relevance to the question whether the defendant is to be liable for any proven tortious conduct by A/Prof Cross, not whether he is a prosecutor (who prosecuted the plaintiff maliciously and without reasonable and probable cause).
Despite having no medical or biomechanical qualifications, it is clear enough that A/Prof Cross did set about considering how Ms Byrne could have entered the cavity head first given her injuries and the orientation of her body and that he did so with Det Insp Jacob's consent. While it is clear from the correspondence which is summarised above that Det Insp Jacob encouraged contact between Sgt Powderly and A/Prof Cross, that fact alone does not support the plaintiff's submission, even if only impliedly advanced, that Det Insp Jacob delegated any role or function of an investigator to A/Prof Cross; even less so that he authorised him to undertake further enquiries, save insofar as they were necessary to confirm the views expressed in his first report that the most likely explanation was that Ms Byrne ran and jumped to her death after taking into account the additional feature of her orientation of her body to ensure his opinions were soundly based. In his evidence, Det Insp Jacob said on more than one occasion that he considered A/Prof Cross's engagement by police and his dealings with him as the author of the requesting letters was "absolutely professional". He also said that he did not consider A/Prof Cross was beholden to the police in any way and that he was doing the work asked of him in a professional and thorough way.
There is some force in the submission advanced by the defendant (although essentially a submission to address the plaintiff's submission that A/Prof Cross became a "de facto police officer" in the service of the Crown) that after furnishing the first report, A/Prof Cross's further involvement was primarily the product of his eagerness to understand all of the underlying facts and to ensure that his analysis was thorough and his experimentation was focussed and relevant. In support of that submission, the defendant referred to A/Prof Cross's evidence where he said that he was at all times aware of the difference between his role as a consulting expert and that of an investigating officer, and that he made every attempt to adhere to the Expert Witness Code of Conduct.
At pars 19-24 of A/Prof Cross's statement dated 18 July 2016 he said: 19. I saw the investigation into the death of Caroline Byrne as twofold. There was a police investigation and there was a separate physics investigation where I investigated the physics of the problem. I was only involved in any direct sense in the latter. 20. My investigation took three years. Over this period, I conducted experiments and analysed data, partly with the assistance of the police to organise venues for the experiments and take the necessary measurements at the bottom of the cliff. 21. The purpose of my physics investigation was not to convict the plaintiff. It was to determine, if possible, how Caroline Byrne fell off the cliff. 22. The experiments were conducted with the same rigour and even greater attention to detail than one would normally expect in an experimental physics investigation. My experimental evidence was thoroughly documented for all to see. 23. I prepared my opinions and gave my evidence dispassionately and in terms derived from my expertise and experimentation. I considered this was my role as an expert witness according to the code of conduct. 24. I had no vested interest whatsoever in the outcome and I treated everything that the police told me with a degree of scepticism and verified all facts for myself when I could. I checked everything independently, including the cliff measurements undertaken by forensic imaging, the weight of the dummy supplied by the police, the athletic ability of the subjects tested etc. [122]
I have considerable doubt as to whether, despite his evidence, A/Prof Cross understood, or fully appreciated his obligations under the Expert Witness Code of Conduct or, if he did, whether he adhered to his obligations. In particular, there is every reason to doubt that he was rigorous in ensuring that his opinions and conclusions were qualified, where necessary, by stated assumptions and qualifications both in the reports he furnished to the police and in his evidence at the plaintiff's trial. Further, I doubt that A/Prof Cross maintained an appropriate level of objectivity, by consciously eschewing speculation or conjecture in the process of reasoning to a conclusion of one sort or another, given the content of his reports (in particular, his later reports). However, in considering whether A/Prof Cross should be regarded as a prosecutor for the purpose of these proceedings, it is not to the point that his evidence at committal and at trial was expressed without qualification since, by that time, the way in which he expressed his opinion that Ms Byrne was probably thrown to her death, and the reasoning that supported that opinion, was in the hands of Mr Tedeschi as Crown Prosecutor. It will obviously be necessary to consider A/Prof Cross's evidence at trial in order to review whether the way in which his evidence was adduced by Mr Tedeschi and then presented by him in final submissions establishes a want of reasonable and probable cause and malice in Mr Tedeschi's conduct as prosecutor as contended for by the plaintiff.

[45]

The visit to the Gap in January 2004

On 22 December 2003, A/Prof Cross advised Det Insp Jacob by email [123] that he had been contacted by Sgt Powderly and it was proposed that Sgt Powderly take him to the Gap on 6 January 2004. He went on to say in that email: [Sgt Powderly] is convinced that entry from the south platform was impossible, but I remain to be convinced since she may have entered head first and almost vertical (or 14 degrees from vertical in my estimate). [Sgt Powderly] wants me to go down to the crevice with him but I'm not convinced that is necessary. He has no photos of the crevice but says you have them all. [124]
On 6 January 2004, Det Sgt Quigg recorded in e@gle.i the results of the site meeting at the Gap in the following terms: A number of examinations and measurements were conducted by Professor Rod Cross and Sergeant Mark Powderly … These examinations included the angle from the top of the cliff face to the crevice … where the body of Caroline Byrne was recovered. [125]
During the procedure A/Prof Cross took a total of 84 digital photographs.
Later that afternoon A/Prof Cross reported the results of the site visit to Det Insp Jacob via email [126] . In addressing what he considered was a "complicated problem" that presented because of the position of Ms Byrne's body and the injuries she sustained, he asked for "profile drawings of the cavity showing three cross-sections". [127] At Det Insp Jacob's instigation, A/Prof Cross communicated directly with Det Sgt Streatfield in order that profiles might be prepared.
In an email A/Prof Cross sent to Sgt Streatfield on 7 January 2004 [128] , it is clear that the photographs which he attaches (being some of the photographs taken by him the previous day) are of a crevice formed by a rock that he described as "look[ing] like a pyramid with a white top". [129] (This is the rock referred to throughout the trial and in these proceedings as "Pyramid Rock".) That email puts beyond question that at the site meeting on 6 January 2004 all attention was focussed on that rock as designating the identified point of recovery of those in attendance at that time (including, in particular, Sgt Powderly), ignorant of the fact that a different crevice had been nominated at the inquest referable to the crevice Sgt Powderly had nominated in the 1996 reconstruction video. When the circumstances in which the 1996 video was taken were revisited it ultimately emerged that the explanation for what Sgt Powderly accepted was the wrong appointment by him of the point of recovery in the video reconstruction was because he was on top of the cliffs when he had Cst Camwell filmed at the base of the cliffs, and that he was misled by the rocky topography below.
That there was a controversy between Hole A and Hole B (the so-called correct and incorrect cavities) was only identified on 8 January 2004 when Ms Comina (an analyst employed by NSW Police to assist Strike Force Irondale) identified a discrepancy between two sets of photographs.
I am well satisfied that this was not known to be an issue when Det Insp Jacob furnished the Sufficiency of Evidence Report first to Sgt Berry of the Legal Operational Service for his consideration before the Report and brief of evidence was forwarded to the ODPP. I reject the plaintiff's submission that Det Insp Jacob deliberately withheld A/Prof Cross's first report when he furnished the Sufficiency of Evidence Report, only furnishing it when the site visit was underway and it became clear that the "correct" cavity was Hole A. I do not accept that it was withheld for any ulterior purpose, whether associated with what proved later to be the controversy over Hole A/Hole B, or for any other reason. I accept Det Insp Jacob's account that he did not include A/Prof Cross's first report as he was waiting to receive what might have been an addendum to the report resulting from A/Prof Cross's concern about the "head first orientation" of Ms Byrne's body and its potential to impact upon the conclusions he had arrived at as to how she descended to her death. While it was in the course of his consideration of that question that the site visit to the Gap was convened, it was not convened because there was any reason to doubt that Hole B was the point of recovery.
What is also clear from the email correspondence [130] following the site visit on 6 January 2004 is that A/Prof Cross's continued involvement extended beyond the matters the subject of his consideration in the first report and the terms of his formal consulting letter. It is also clear that Det Insp Jacob did not discourage A/Prof Cross's interrogation of how the injuries Ms Byrne sustained on her descent from the cliff top, as revealed on autopsy, might be explained. While the plaintiff in the proceedings was critical of the nature of his continued engagement (submitting ultimately that A/Prof Cross was an investigator and not an independent consultant), I am also satisfied that it was not apparent to Det Insp Jacob at that time that allowing for A/Prof Cross's continued involvement was either inappropriate or ill-advised, despite the Sufficiency of Evidence Report and the accompanying brief of evidence being by this time in the hands of the Office of the Director of Public Prosecutions.
In fact, in an emailDet Insp Jacob sent to Sgt Streatfield and A/Prof Cross on 9 January 2003, [131] Det Insp Jacob commended them both for the ongoing work and, in particular, for A/Prof Cross's ongoing interrogation of the material, with Det Insp Jacob expressing the view that legal advice can often take some considerable time and that ongoing work should not be deferred if, in the result, as he described it, "the case is presented more thoroughly".

[46]

The evidence of Ms Comina and Det Insp Jacob re the discovery of the Hole A/Hole B controversy

In the exhibited materials, there is nothing raising, recording or noting what the discrepancies in photographs purporting to be the point of recovery Ms Comina had identified, or Det Insp Jacob acknowledging was an apparent discrepancy when she alerted him to it. What is recorded, however, is that arrangements were made for Det Sgt Quigg to undertake measurements and further examinations of the Gap with Sgt Streatfield, and that Det Sgt Quigg was directed by Det Insp Jacob to make arrangements directly with A/Prof Cross to meet with Sgt Powderly and specialist police for a further site visit on 15 April 2004. [132]
On 8 April 2004 there was a conference between Det Insp Jacob and Ms Comina where the following was noted: Inquiries are continuing in relation to the position of the body and the preparation of the photogrammetry plan - there is some indication that the [photogrammetry] plan was based on the word of a police officer other than the guy who is absolutely positive ... Dr Cross based his finding on this plan as well as photos. They will keep me updated. [133]
It would appear, and I accept, that Det Insp Jacob was concerned to make all necessary inquiries into the issue to which he had been first alerted by Ms Comina on 8 January 2004 before coming to the concluded view that the photogrammetry plans, first prepared by Det Streatfield in 1999, and based on what were referred to as the Jubelin photographs, all of which were furnished to A/Prof Cross and upon which he based his first report, were wrong. I also accept that Det Insp Jacob formally advised A/Prof Cross of that fact for the first time on 14 April 2004. [134]
On 16 April 2004 A/Prof Cross recorded in his workbook the provenance of the error referable to the 1996 police video, which he apparently reviewed after he had attended at the Gap with Sgt Powderly and others at the site visit the previous day. [135] A/Prof Cross drew a two-dimensional representation of the rocks surrounding the crevice, particularly Pyramid Rock, and what he described as a double humped rock which Sgt Powderly had identified as the point of recovery when the photographs were taken at the site visit in January 2004. He noted that at the site visit the previous day Sgt Powderly confirmed that what became known as Hole A was the "correct" location as he recalled leaning against Pyramid Rock in the process of the recovery of Ms Byrne's body to protect himself from the wave surge and the prevailing conditions.

[48]

The police request for a further (second) report from A/Prof Cross

On 24 May 2004, a further formal requesting letter was sent to A/Prof Cross (described by Det Insp Jacob as "continuing expert consultancy in relation to the investigation of the death of Caroline Byrne" [137] ) to which he attached the additional statements from Sgt Powderly and others referred to above, together with an amended photogrammetry plan. Det Insp Jacob informed A/Prof Cross that the DPP had asked whether it would be of assistance for A/Prof Cross to go to the site, noting A/Prof Cross's indication to him that was unlikely to be necessary.
By email the following day, A/Prof Cross informed Det Insp Jacob (presumably on the basis of the amended photogrammetry plan) that: [W]e will need to do some more throwing. … The closest distance to [Hole A] is now from the southern tip of the ledge to the north. It's 2 m closer than the distance from the corner fence post. [138]
On 26 May 2004, A/Prof Cross reported by email [139] that he considered that there were three possible ways Ms Byrne descended to her death, namely that she jumped, or ran and jumped, or was thrown, and from two different launch sites, before she impacted with Hole A by either entering the cavity directly or hitting the top of Pyramid Rock and sliding into the cavity. Two of those theoretical possibilities he regarded as "not possible" [140] - being a jump or throw from the corner fence post over a distance of 14.1 metres, because it required a launch speed of 6.1 m/s, and a jump or run or throw from the flat section south of the fence post over a distance of 17.4 metres requiring a launch speed of 7.9 m/s.
He considered the third option, being a jump or throw from a ledge to the north of the corner fence over a horizontal distance of 11.9 metres and requiring a launch speed of 5 metres per second as possible or, if she landed at the top of Pyramid Rock and slid into the cavity, a horizontal distance of 10 metres at a speed of 4.4 metres per second as also possible, with the qualifier that "our top throw speed so far is a bit less than 4.4 m/s". [141] He made the further observation in this email that a throw from the edge of the cliff would be "dangerous". He also queried how Ms Byrne was taken to "that point willingly or even unwillingly", before venturing the further view that "[i]t's a spot that's well hidden so it has some advantages if you don't want to be seen doing something wrong". [142]
Approximately an hour later A/Prof Cross followed up that email with what he advised had to date been the maximum throw speeds by one man of 3.68 metres per second and by two men at 4.15 metres per second. He also noted that a female subject's "run and dive speed" was at a maximum of 3.8 metres per second and an elite female swimming dive from a standing start was 4.0 metres per second. He concluded by saying: None of these get to the 4.4 m/s jump or throw now needed. Hence more throws might help. [143] (Emphasis added.)
Two days later, on 28 May 2004, A/Prof Cross sent an email to Det Insp Jacob referring to an analysis of the drawings and photographs where he designated what he referred to as: [A]n even closer launch point. It is a little rock jutting out [this became known as "the northern ledge"] … A straight line from that point into the cavity gives a better trajectory in terms of hitting the south face of the pyramid [Pyramid Rock] and then sliding straight into the cavity. The feet point straight to that little jutting rock. [144]
The analysis underpinning the content of this email to Det Insp Jacob is set out in detail in A/Prof Cross's log book. It is clear that with the northern ledge proposed by A/Prof Cross as "an even closer launch point" a "run-up" of 4.5 metres is incorporated.
By email on 2 June 2004, A/Prof Cross reported to Det Insp Jacob the results of the additional poolside tests conducted and where the "spear throw" was utilised and "throw speeds" were measured, none of which exceeded a launch speed of 4.37 metres per second. As to this he observed. "we are looking for a throw speed of about 4.2 to 4.5 m/s, or even a bit higher". [145] He described one of the throwers (Male B) as relatively short but who "looks strong even though he claims he doesn't do any weight training". He went on to add: Someone who does do weight training could be expected to throw a bit faster [that is, faster than the highest recorded throw speed of 4.37 m/s]. Also, [the female subject] is 62 kg, not 57 kg. [146]
He advised that no more throwing experiments were necessary since, in his view, the tests that were conducted that day indicated that: The spear throw gets all the force of one arm right behind the centre of mass where it is needed and results in a straight throw without any spinning. [147]
In an email of 3 June 2004, A/Prof Cross raised with Det Insp Jacob whether he wished to be furnished with the revised report (incorporating Hole A) in draft, again observing that Male B was of only average height and build and that he would be: Happy to film someone stronger who works out in a gym. If I could get a throw speed of 5 m/s that would clinch the argument. Or do you prefer to leave that possibility open rather than closed? [148] (Emphasis added.)
Det Insp Jacob did not respond to these emails.

[49]

The (draft) second Cross report: 16 June 2004

A draft second report dated 10 June 2004 (the report A/Prof Cross had referred to as the revised report) was furnished to police in which A/Prof Cross formally reported the results of the swimming pool tests under the subheading "New Throw Measurements". He also elaborated upon the utilisation of the "spear throw" in the following way: Based on previous results, it was decided that a high speed throw might result if the volunteer was "speared" head first in a horizontal direction into a swimming pool, supported at about shoulder height (of the thrower) with one hand on her chest and thrown by the other hand pushing firmly on the buttocks and between the legs. That way, the thrower could take a short run up, and push in line with the centre of mass of the volunteer, thereby avoiding any significant rotation during the throw. This method of throwing also seemed to be more consistent with the fact that Caroline Byrne landed head first on the rocks below the cliff. [149]
After reporting the results of the ten "spear throws", A/Prof Cross went on to report that in all (ten) test throws: [T]here was essentially no body rotation and the volunteer entered the water head first with arms in front in the manner of a normal dive off the side of a pool. ... The male thrower was medium height and weight … and strong in appearance… He had not done any weight training… The female volunteer was tall, like Caroline Byrne, but 62 kg rather than Caroline's 57 kg. My conclusion from these test results is that a slightly stronger person using the same method of throwing would be able to throw a slightly lighter female at a horizontal speed of around 4.5 m/s, and a significantly stronger person would be able to throw her at a speed of around 5.0 m/s or more. One cannot be very precise about these estimates without more extensive tests, but there is no doubt in my mind that Caroline Byrne could have been thrown over the cliff on the day she died, at a horizontal launch speed of around 4.5 to 5.0 m/s. [150]
Under a further subheading, entitled "Theoretical Throw Speeds", A/Prof Cross set out a theoretical analysis supporting the estimate of the launch speed required to reach Hole A. [151]
In the concluding section of the final version of the second report dated 26 July 2004 and headed "Revised Report on Death of Caroline Byrne", A/Prof Cross referred to the fact that in limiting his consideration to "the landing position and orientation of the body" he was unable to distinguish a jump from a throw as the mechanism of descent. He went on to say that the probabilities that Ms Byrne jumped depended almost entirely on her athletic ability. He considered that had she been an Olympic athlete, jumping would have been a more likely explanation than a throw. However, he went on to say that assuming she was of average or below average athletic ability: [T]here is zero probability that she could have run or jumped off the cliff. If she did not run or jump off the cliff, then the only plausible alternative is that she was thrown by one or two strong males. [152]
He went on to volunteer the wholly gratuitous comment that "any other alternative (helicopter drop, sling shot, arrived by sea etc) is ludicrous" and then the additional wholly gratuitous view as to the probability that she was thrown by the plaintiff. He expressed himself in the following way: Given that she was seen arguing with her boyfriend hours before her death, that he was a gym instructor, and that he was the one who later located her body using a torch with a weak battery to penetrate thick fog, the probability that she was thrown by her boyfriend must be rated as very high. If [Ms] Byrne was indeed thrown to her death from the North ledge, it is natural to speculate why she was thrown at such a high speed. A low speed push or throw would also have resulted in almost certain death. I can think of two possible reasons. One is that the thrower was highly charged emotionally, perhaps very angry. The other is that he wanted to inflict maximum possible damage in order to mask injuries sustained in a prior altercation. It seems highly unlikely that [Ms] Byrne would have climbed onto the North ledge of her own free will to escape such an altercation, unless it was a dramatic attempt to threaten a suicidal jump. Whatever the reason, the area near and leading beyond the North ledge is well hidden from public view and may well have been the scene of a violent confrontation that continued after the events witnessed earlier at street level. [153]
This is perhaps the most glaring example of A/Prof Cross's wholesale failure to appreciate the parameters of his role as a consulting expert; the need to strictly confine himself to expressing his opinions based on his specialised knowledge, training and experience; and his obligation to confine himself to basing his conclusions on either proved assumptions or by clearly stating any unproved assumptions qualifying his conclusions.
In his evidence in these proceedings, A/Prof Cross accepted that the commentary set out above was based on unproved assumptions and was nothing more than pure speculation on his part. That he included it in a report furnished to police as a forensic consultant at all raises in my mind real doubts as to whether he had the necessary intellectual discipline and objectivity to "qualify" as an expert upon whose evidence reliance could be placed in a criminal trial.
Again, the relevant question that presents is what the content of the report reveals, if anything, about Det Insp Jacob's attitude as a senior investigating officer in his assessment of A/Prof Cross as an expert or, more critically, whether it informs the question whether he should be held to be a prosecutor for the purposes of these proceedings on the basis contended for by the plaintiff or, for that matter, what it reveals about the plaintiff's contention that A/Prof Cross should be so regarded.
Commentary of this kind, and more like it, was littered liberally throughout each of A/Prof Cross's reports. The commentary was not adduced in evidence by Mr Tedeschi at the plaintiff's trial. The plaintiff submits, however, that being aware of A/Prof Cross's misguided approach to his role as an expert witness, Mr Tedeschi ought not have placed any reliance on any of the views, experiments, analyses or conclusions to which A/Prof Cross progressively opined over the course of his eight reports delivered over five years and, further, that he should have had grave concerns about A/Prof Cross's impartiality given his willingness to depart from the confines of his expertise in the application of Newtonian physics. The resolution of that question will necessarily bear upon whether the plaintiff has made out his case against Mr Tedeschi as a prosecutor.
A/Prof Cross's tendency to hyperbole and surmise in his furnished reports, a tendency mirrored in his email communication with Det Insp Jacob, does not however, of itself, assist the plaintiff in establishing that A/Prof Cross is a prosecutor as a matter of law in the way the plaintiff mounts his case.
It is worth emphasising that the plaintiff's case is that I would come to that concluded view being satisfied of the following: 1. A/Prof Cross conscientiously put himself forward as an expert witness as having specialised knowledge when he knew he had neither expertise nor specialised knowledge in expressing views about a range of matters including, importantly, biomechanics. 2. He deliberately fabricated the evidence in order to secure the charging and conviction of the plaintiff. 3. He deliberately omitted crucial qualifications from each of his second and subsequent reports which, if included, he knew would have resulted in the plaintiff not being charged. 4. He deliberately falsified his data or overstated its effect in order to mislead the prosecutor.
The plaintiff relies upon the content of the second Cross report as evidencing an inevitable finding that A/Prof Cross deliberately manipulated the integrity of the results of the "throw tests" in order to ensure the plaintiff was charged and convicted of Ms Byrne's murder. That allegation, together with the allied allegation that A/Prof Cross deliberately omitted the crucial qualification in his second report that the throw speeds exceeding 4.5 m/s were only achieved with a compliant and cooperative subject, are relied upon as evidence from which the Court would find that A/Prof Cross intended to deliberately mislead the police and prosecuting authorities as to the utility of his test results, knowing their obvious materiality to the case that was under consideration against the plaintiff for murder, and that he should be regarded as a prosecutor for the purposes of the tort for that reason.
The reference in the second report to the so-called "limp throw" is logically allied with the plaintiff's contention that A/Prof Cross deliberately (that is, intentionally) omitted to make patent in that report (and, indeed, in subsequent reports) that the experimental results which indicated that Ms Byrne could have been thrown in a "spear throw" at a speed of 4.5 metres per second was qualified by making it patent that was only possible if she did not resist being lifted, held at shoulder height and projected forward by that method. When he was cross-examined about the failure to make it clear that his conclusion that Ms Byrne was thrown to her death was subject to her offering no resistance, he said, both in his evidence at trial and in an article submitted to the Australian Journal of Forensic Sciences in 2014, that he relied upon two aspects of his reported views where he claimed that qualification should have been obvious. The first was the reference in his first report to his statement that "[t]he measured throw speeds were achieved using a passive volunteer or dummy, not a struggling woman" [154] and the second the test he conducted with a limp subject in the so-called "limp throw test", the subject of commentary in the second report.
The "limp throw test" was not the subject of any specific emphasis, whether by a subheading or otherwise in the second report. Rather, it appeared in the context of what were described as the new (June 2004) throw measurements based on Hole A. After describing the ten "spear throws" from the side of the swimming pool by one male thrower of medium height and weight who he described as "strong in appearance but definitely not a front row forward type" [155] , an additional test was undertaken where the female volunteer was asked, as A/Prof Cross described it in his second report, to "remain limp rather than support herself by hanging onto the thrower". [156] There was nothing in the second report itself which described the limp throw other than by those descriptors, although the video recorded test results, including that throw, were supplied as part of the second report to which Mr Tedeschi had access when he was considering the second report (and the reports which followed) in his advice to Mr Cowdery furnished in February 2006 and in preparation for trial.
On even the most cursory view of the footage of the "spear throw" tests it is obvious that the female subject in the so-called "limp throw test" was not lifted from the ground in a condition feigning unconsciousness, but only allowed her arms and legs to dangle after she was raised at shoulder height, after which she participated in being launched into the pool by bracing herself before being thrown. When Mr McClintock asked A/Prof Cross in these proceedings whether he had spoken with Det Insp Jacob about the need to read his results as qualified by the volunteer being compliant when thrown (so as to achieve the necessary launch speed), he said he thought he would have mentioned it after he conducted the test throw of the limp woman, but accepted, implicitly, that there was nothing in his second report to make it clear the test was not intended to mirror, in any meaningful way, the circumstances in which Ms Byrne was allegedly "spear thrown" to her death. Det Insp Jacob was not cross-examined to suggest he was told anything about the validity or integrity of the "limp throw test".
It does not necessarily follow from a failure to make patent that his conclusions should be understood as qualified in this way, that A/Prof Cross deliberately withheld what he knew to be a critical qualification to the efficacy of his test results when expressing his ultimate conclusion that Ms Byrne was "spear thrown" to her death. An alternate explanation, equally open in my view having regard to the form and content of A/Prof Cross's reports and his undisciplined approach to volunteering unsolicited opinions in his reports (including a failure to adopt and apply scientific methodology in conducting experiments as a validation tool), is that he assumed a position of authority relative to the investigating police about a range of issues beyond his expertise as a physicist, made worse by the fact that he was permitted to develop his theories about the "spear throw" without any restriction, whether imposed by Det Insp Jacob in the first instance, or later by Mr Tedeschi in his role as Crown Prosecutor. To express it another way, A/Prof Cross was permitted to trespass into areas extraneous to his expertise, without being confined by clear instruction not to, and without Det Insp Jacob, in particular, apparently appreciating the risks of allowing him unlimited rein on matters of crucial significance to the then evolving Crown case.
What I regard as Det Insp Jacob's failure to appreciate the limits according to which a consulting forensic specialist might be permitted to report, is directly allied with what I regard as his failure to appreciate that A/Prof Cross had ventured into areas of expertise beyond those within which he was qualified to express an opinion or his failure to appreciate the need to effectively and emphatically instruct A/Prof Cross to limit his views to those he was qualified to express. Det Insp Jacob's permissive approach, indeed his sanction, to A/Prof Cross venturing views beyond his expertise is demonstrated by inviting him to furnish a report as to the circumstances in which Hole A was ultimately nominated as the "correct" landing/recovery point (the second report of A/Prof Cross), equally as it serves to exemplify his failure to be alert to deficiencies in the experiments according to which A/Prof Cross endorsed and confirmed his conclusion that Ms Byrne was "spear thrown" to her death.
Det Insp Jacob said as much when he embraced A/Prof Cross in his evidence in these proceedings as "our expert that we were using in relation to all of the issues relating to this case". Det Insp Jacob went on to say in his evidence that he considered: A. … It was entirely appropriate that I place that material collected by police to him to make an assessment as to whether or not he felt that there was sufficient material available to him to come to a view as to which hole was the correct hole and that's what we did. It wasn't a matter of us - it was a matter of me developing and capturing this evidence and giving it to Cross to assess as part of his ongoing work. Q. It must have become apparent to you, I suggest, that by this time Professor Cross had abandoned any semblance of impartiality. You agree with that, don't you? A. I absolutely do not agree with that. Professor Cross at all times whilst affable and friendly and engaging was absolutely professional. If he saw a problem, if he saw something wrong in something that the police had done, for example, a problem with the photogrammetry plan; he pounced on it. He was not beholden to us in any way. He was doing his work, in my view, in an absolutely professional and very thorough way. [157]
I asked Det Insp Jacob, without any objection from the parties, whether he would take a different approach in a hypothetical current case. He gave the following response: Knowing what I'm being asked and being issues that are directed at me, absolutely. [158]
Following service of the second (draft) report by email on 16 June 2004, A/Prof Cross sent the following email to Det Insp Jacob: Paul, I just had a weird thought that I will share with you. One of my previous arguments against throwing was that top throw speeds were achieved only after many low speed attempts. I argued that [the plaintiff] only had one go to get it right. My weird thought is that he could have had a few practice goes higher up the cliff where the footpath leads out onto a nice flat walkway all the way to the northern end of South Head. If so, I would expect a lot of dirt on [Ms Byrne's] track suit pants, but I think that Mark Powderley said there were no marks or cuts on her legs at all. Apart from Tony's first warm-up half-hearted throw, all of his throws were near top speed, so I can't use the old argument anyway. Someone told me that acrobatic male dancers can throw female partners a long way to another male dancer by pushing hard on their rear ends. Rod [159]
Det Insp Jacob did not respond to that email.
On 21 June 2004, A/Prof Cross attended the Gap with Det Sgt Quigg and Ms Comina where he took, what is described in the e@gle.i report as: [A] number of photographs and took a number of measurements from a ledge which is located on the northern end of 'The Gap' at Watsons Bay, this included a number of photographs of a particular rock ledge. [160]
The entry continued: [He] is in the process of finalising his investigation which will include some other tests on … 24/06/2004. [161]
On 24 June 2004, further throwing tests were performed utilising another thrower. The results of those test were reported to Det Insp Jacob by email as follows: The biggest guy (Trent) had throw speeds of 4.71, 4.83 and 4.71 m/s. I would need a throw speed of 4.85 m/s before I would be completely confident that one guy could do it on his own. As it is, I have to conclude that (a) GW was a bit stronger than Trent or (b) he had a better throw technique or (c) 2 guys threw her. All 3 conclusions are plausible but none are certain. The running and jumping tests are a bit clearer. [162]
In essence, A/Prof Cross concluded that after taking into account Trent's assessed athleticism and his assumptions about Ms Byrne's lack of athleticism, and factoring in the relative safety of the test environment and that Ms Byrne would likely jump at 4.0 metres per second or less off a cliff, he concluded: I am still certain she was thrown, but I need to be careful how I say or prove that in order to convince anyone else. [163]
Det Insp Jacob acknowledged receipt of that email without comment and indicated that he would speak with A/Prof Cross later about its contents. There is no evidence as to whether that occurred or the content of any discussion
By email of 27 June 2004, [164] A/Prof Cross proposed filming 10 or 20 students from the June Dally-Watkins school running 4.5 metres and jumping as far as they could on a floor from which he intended, on repeat runs, to plot the fastest run and jump for each student. He suggested that might provide a basis for extrapolating Ms Byrne's run or jump speeds.
Det Insp Jacob responded by advising that "the bosses" were not keen to conduct further running and jumping tests since the current test results indicated that jumping was possible and "we'll never know for sure if CB may have jumped". [165] A/Prof Cross responded by suggesting that Det Insp Jacob and his superiors had misunderstood the test results. He said he was concerned to see if a jump of 4.5 to 5.1 metres per second could be achieved. In the result, further tests were scheduled with the cooperation of police cadets as volunteers.
On 1 July 2004, A/Prof Cross reported to Det Insp Jacob by email the results of the further jump tests which he furnished in graphic form and which he analysed as indicating that Ms Byrne had, at best, a 10 per cent chance of "jumping the distance [to Hole A]" [166] assuming she was in the top 10 per cent of athletic performance. As he made clear in subsequent emails, those results required close analysis in order to draw any reportable conclusions, although he did report as a firm conclusion in an email of 16 July 2004 [167] (ten days before he furnished the final second report of 26 July 2004) that, of the 39 jumps undertaken by 13 women three times, six achieved the measured distance of 11.8 metres (being the distance from the extreme edge of the north ledge to Hole A). Of the 39 jumps executed, all were launched 20 centimetres short of the appointed 4.5 metre run-up, increasing the jump distance, from 11.8 metres to 12 metres. He concluded that the probability of Ms Byrne "jumping the distance" was 1 in 39; a figure which would be reduced after taking into account the following: 1. It was a dark night; 2. Ms Byrne did not have three attempts at her jump; 3. The two jumpers with the same height and weight as Ms Byrne were not among those five who jumped more than 11.8 metres; 4. Ms Byrne landed on her head. To achieve that rotation her jump speed would be reduced slightly, in which case he considered it unlikely that any of the 39 jumps would achieve the horizontal distance. He remarked (entirely gratuitously), "Most people committing suicide do not jump at top speed".
In concluding that a female of average athletic ability could not jump the distance to Hole A, he expressed the opinion that it was highly unlikely that Ms Byrne did, however, he could not appoint any probability to that assessment, accepting that nothing was known of her actual athletic ability apart from the fact that she was not an elite athlete. He concluded, "If she was of average athletic ability there is essentially zero probability of jumping the distance". [168]
As is clear from A/Prof Cross's email to Det Insp Jacob of 23 July 2004, [169] three days before the settled report of 26 July 2004 (the second report of A/Prof Cross) was furnished, he concluded that the new test data was consistent with only two possible conclusions, with the most likely being that Ms Byrne was thrown at high speed in a "spear throw" from the northern ledge. He said that a much less likely possibility was that she could have taken a short run and then jumped from the northern ledge, but that was only possible were she well above average in athletic ability. It is clear from that email that A/Prof Cross had by that time been provided by Det Sgt Quigg with statements from two sports teachers who indicated that Ms Byrne had no athletic ability at high school. He was also apparently informed that there was no evidence to suggest that she had developed superior athletic abilities after she left high school, despite evidence that she had remained fit.
On 21 July 2004, A/Prof Cross returned to the Gap again with police. That evening, he reported to Det Insp Jacob by email, [170] emphasising that the available run-up (along the northern ledge) was not 4.5 metres or 5 metres (a distance he had applied for testing purposes) but rather only 4 metres, stating categorically that there was a growth of bushes one-metre deep against the fence in 1995, and that the bushes were cleared only recently to fix the fence. Utilising that recalibrated run-up distance, he concluded that no one other than an Olympic athlete with a 4-metre run-up could jump the distance to Hole A. He went on to say, "4.5m allows a high school champion to jump the distance [while] 5.0m allows the top 1/4 of the female population to jump the distance". [171] He repeated that he had been informed by Det Sgt Quigg that Ms Byrne "was in the bottom half in terms of athletic ability". [172] Ten minutes after sending that email he attached a photograph with Det Sgt Quigg standing close to what A/Prof Cross referred to as the original line of bushes against the safety fence, showing, in turn, what he described as easy access over the fence, onto the rock, and then onto the platform. He said of that photograph, "[it] tells it all". [173] A photograph of another view of the northern ledge and the available run-up relative to what was described in a caption to the photograph as the "landing hole" was annexed as Figure 4 to his report, with a magnified image included as Figure 17. Figure 17 (which became Ex DJ at the plaintiff's trial) is described as an: [A]erial photograph taken around 1996 … The line of cleared bush is evident from roots still in the ground. [174]
The presence of the bushes and their impact on the available "run-up" of a thrower or a jumper across the ledge to the edge became a point of contention on appeal and in these proceedings to which reference will be made later.
On furnishing his second report to Det Insp Jacob, A/Prof Cross drew attention to Figure 17 which he regarded as of considerable significance because of the shorter available run-up for a jumper or thrower. He said: The photo is fairly dark and it is hard to make out the true extent of the bush. There is a completely black spot that could be interpreted to mean that there was no bush there at all. It would be much nicer to have a clear photo, but I will include the dark one in my report since that is all I've got. Some time down the track it would be much better to have a clear photo of the bush on the North ledge. Maybe the Parks and wildlife people have one. [175]

[50]

The ODPP sends requisitions

On 2 September 2004, Ms Turner sent an email to Det Insp Jacob, Det Sgt Quigg and Ms Comina, into which Mr Tedeschi was copied as a recipient. The email indicated that she had been asked to issue a number of requisitions following Mr Tedeschi's consideration of "the matter", which I take to include his consideration of A/Prof Cross's recently furnished second report and his first report. Thirteen requisitions were issued: [176] 1. In A/Prof Cross's first report there was a photograph of a mannequin lodged in the rocks at the Gap. The first requisition queried whether "close up photos" [177] were available. 2. Whether Sgt Powderly was responsible for positioning the mannequin in the rocks, or whether he indicated where it was to be positioned and how it was to be positioned. 3. A further statement from Sgt Powderly was sought as to his cliff rescue experience and the positioning of bodies in previous rescues as compared with how Ms Byrne's body was found. 4. Whether "any other cliff rescue persons" have the same or more experience than Sgt Powderly, and whether those persons could provide a statement in relation "to the usual cliff fall landing". [178] Ms Turner also asked whether "anyone experienced in this area [has] seen a person land in a "dive position? Was it unusual?" 5. Ms Turner noted that Sgt Powderly said Snr Cst Camwell took rough measurements at the time of retrieving Ms Byrne's body, but that no mention was made of those measurements in Snr Cst Camwell's statement. She asked whether Snr Cst Camwell recalled making such measurements, and whether it was possible to obtain her police notebook. 6. Whether A/Prof Cross could be asked to conduct further tests where a person of the plaintiff's height, build and strength throws an "appropriately weighted dummy" [179] with "legs and arms limp and falling down (do they impede?)" from the cliff at the Gap using "both an over-arm throw and under-arm throw method" [180] to determine whether the arms and legs impede the throw or the thrower. 7. Additional information in respect of Ms Byrne's athletic ability was sought including "something from the gym". [181] It was suggested that family and friends may be able to assist in providing the information. 8. Whether additional photographs of "the area … particularly the bushes on the north ledge" [182] could be provided. 9. As to the scream heard by the fisherman, information was sought as to the length of the scream, the number of screams, and "whether the volume of the arguing increased prior to the scream". [183] 10. ... 11. ... 12. ... 13. The matter should be referred to another physics expert "for a second opinion". [184]
On 3 September 2004, Ms Turner sent an email to Det Insp Jacob and Ms Comina (copied to Det Sgt Quigg) with six additional requisitions, as follows: 1. Is Camwell able to recall exactly where Caroline's body was found? If she thinks she can recall, she should be brought back to the scene to identify it. 2. A conference is to be arranged between Professor Cross and Mark Tedeschi - could Professor Cross bring his video of the testing conducted. 3. Did Greatorex see the video reconstruction (done in 1996) before he pointed out for the photogrammetry plan the point of impact? 4. Any second expert's opinion to be obtained should be done so completely independently of Professor Cross's analysis. 5. Could Cross re-do his calculations based on the 4 metre run up rather than the 4.5 metre run up? Would any degree of wind have affected his analysis? 6. The viewing of the bottom of the Gap by Mark/Ken to be arranged when convenient. [185]
In the meantime, apparently at the request of Det Insp Jacob, A/Prof Cross provided the names of two experts in biomechanics, both associated with Australian-based institutes of sport. He also advised that he had written an article which was due to be published in the Journal of Forensic Sciences and was expecting some feedback from the editors.
On 13 September 2004, [186] Mr Tedeschi and his junior, Mr McKay, attended the Gap with Sgt Powderly, Det Sgt Quigg, and other police officers. Ms Yule, a forensic psychologist, was also in attendance.
In an email [187] to Det Insp Jacob on 21 October 2004, A/Prof Cross shared his "thoughts" having apparently received notification of the requisitions from the ODPP following Mr Tedeschi's consideration of his second report. In the email, A/Prof Cross expressed concern that Mr Tedeschi "did not actually read and digest [his] report"; a conclusion he derived following a conference with Mr Tedeschi. He considered, inter alia, Mr Tedeschi's suggestion of throwing dummies off the Gap as "stupid" given that Mr Tedeschi apparently also asked for someone to run-up the edge of the northern ledge to get the dummy out as far as possible without falling himself. A/Prof Cross went on to say in an email sent that afternoon: Mark T clearly doesn't understand what I've already said in my report. Maybe it doesn't matter but I think I should spend a couple of hours with him and/or [Ms] Turner explaining exactly what I did and what it means. It is not simply a matter of reading my report more carefully. It is a matter of me sitting down and explaining it to them, going through each map and diagram in detail and letting them come to grips with it. They are lawyers, not scientists, so it's not going to be easy for them to understand the significance of each of the steps I took or the significance of each set of results. It's not like a simple stabbing or strangling or gun shot. It's something that they may never have encountered before but it's their job to find out about it. Otherwise they will just flap about like a headless chook. Don't quote me on that. [188]
Whilst this attitude is not completely destructive of the plaintiff's case that A/Prof Cross deliberately misled Mr Tedeschi such as to cause his discretion to miscarry, it is at least strongly suggestive that his intentions, however crudely and rudely expressed, were to ensure Mr Tedeschi understood his analysis and how he reasoned to the conclusions he had reached in the second report. While it is a reflection of his hubris that he believed that a lay person would not appreciate the integrity of his approach or understand the conclusions he reached in applying the rigours of science and the certainties it generated, it does not suggest to me an intention to mislead Mr Tedeschi by having him accept the conclusions reached in his second report knowing they were unsupportable.
By 1 November 2004, A/Prof Cross had confirmed Prof Bruce Elliot's availability as an expert who may be approached. It appears he was consulted by Det Insp Jacob about an appropriate "expert" in order to address Mr Tedeschi's request that there be another expert retained to consider the conclusions A/Prof Cross had reached and whether they could be supported.
A/Prof Cross introduced Prof Elliott as: [H]ighly respected by all biomechanists around the world for the wide variety of excellent work he does. He has a large group of other biomechanists working under him - he's the boss … You won't get anyone better anywhere (apart from me). [189]
Despite the further unabashed hubris in appointing himself as a biomechanist at all, this attitude also runs counter to that plaintiff's case that A/Prof Cross intended to mislead Mr Tedeschi by the provision of the information in his second (and subsequent) report since it must be assumed by his introduction of Prof Elliott that he knew, and indeed expected, that his analysis and what he claimed to be the scientific integrity of his approach, would be subject to close scrutiny.
In a requesting letter of 7 March 2005, [190] Prof Elliott was formally retained by Det Insp Jacob and provided with the briefing materials which had been previously furnished to A/Prof Cross, inclusive of A/Prof Cross's first three reports (the third report having been furnished on 17 February 2005). The inclusion of A/Prof Cross's first report in the brief of material provided to Prof Elliott also runs counter to the plaintiff's case that Det Insp Jacob was intent on concealing the first Cross report and the conclusions then expressed by A/Prof Cross as part of his determination to mislead Mr Tedeschi as to the possibility that Ms Byrne committed suicide.
Prof Elliott was asked to critically examine, test and provide his expert commentary on A/Prof Cross's conclusions with particular focus on: 1. Other likely points from which Ms Byrne left the cliff top; 2. The likelihood or otherwise that she left the cliff top in any type of load-trajectory way; 3. The likelihood of Ms Byrne being able to reach the point of recovery without any assistance; 4. The likelihood of Ms Byrne reaching that point by being thrown by one or two strong males.

[51]

Prof Elliot's first report

On 8 March 2005, Prof Elliott provided a five page statement entitled "Critical Evaluation and Expert Opinion on Report by Associate Professor Rod Cross on the death of Caroline Byrne". [191] For the purposes of that report, Prof Elliott was provided with the first three reports prepared by A/Prof Cross, together with a number of police and civilian statements and other data including post-mortem reports and photographic and other imagery of the Gap and surrounds. In the report, Prof Elliott saw it as his role to ascertain the accuracy of the data presented and conclusions drawn in the three A/Prof Cross reports. He described the reports as "extremely thorough and well documented" [192] presenting "an accurate mechanical summation of projectile theory related to" [193] the case under consideration.
On the basis that the documentation and interactive crime scene data suggested that there was only one logical launch site (being the northern ledge), he considered A/Prof Cross was correct in concluding that an 18-metre leap could only be made by an elite athlete with an extended run-up which ruled out of contention the only other logical launch site, being the southern ledge. In considering the type of trajectory he said: The most logical conclusion from the data presented below [being an evaluation of the testing protocols used by A/Prof Cross] is that Caroline Byrne was "speared" from the top of the Gap. Associate Professor Cross's references to potential body rotations during flight (angular momentum and angular velocity) is at all times logical and linked to appropriate literature. His mathematically derived Figures enable sound conclusions to be drawn based on data. His conclusions based on mechanics fit the injuries sustained by Caroline Byrne, as reported by the Coroner and other reports. [194]
In considering the running speeds recorded in the A/Prof Cross reports, Prof Elliott undertook his own testing of four female students of average fitness running over a 4-metre grass course where their peak speed was measured using a two-dimensional computer program. He reported as follows: Results suggest that the mean [running] speeds presented in the Cross Reports are appropriate. They were all lower (mean = 4.1 m/s) than the 4.85 m/s (horizontal take-off speed), as shown by Associate Professor Cross as being necessary for [Ms Byrne] to project herself from the ledge and land as shown in the crime scene. [195]
In assessing dive speeds he said: Using the same test protocol, a 57 kgs female (high performance competitive swimmer) was asked to dive into a pool from the pool-deck following a 4 m run-up (similar to shown in Fig 4, p7 of the Supplementary Cross Report). Mean dive speed was marginally higher than the mean reported by associate Professor Cross (4.0 vs 3.5 m/s), however they fit at the upper end of the continuum of his data. This could easily be accounted for by the familiarity of the young lady diving into a pool as part of her swim training. Certainly Caroline Byrne would not have been expected to achieve the same speed. The mean dive angle of 6° (range 5-7°) is marginally lower that reported by Associate Professor Cross. That is a mean 4.0 m/s, with a dive angle of 6° is at the upper end of the range of values reported in the Supplementary Cross Report (Figure 5). However, the values are still lower than the 4.5 m/s and 10° trajectory needed for Caroline Byrne to reach the landing position. My mean speed values recorded while running (4.1 m/s -peak) and from a dive (4.0 m/s - take-off) are almost identical, which is a little surprising. However, it must be stated again that the runners were average athletic ability females while the female who was tested diving had been a competitive swimmer. [196]
From these results he expressed his agreement with the conclusion reached by A/Prof Cross that Ms Byrne neither ran, jumped, nor dived from the northern ledge to have arrived at Hole A.
Prof Elliott also undertook some throw tests, although his "throwers" were not as "large" [197] as those used by A/Prof Cross. Mean speeds of 3.7 m/s matched those generated by the two throwers used by A/Prof Cross in his second report. Prof Elliott went on to say: It is not difficult to agree with the values (approximately 4.7 - 4.8 m/s) reported for Male A. [198]
He emphasised however, that the data collected, both in respect of the throw tests and running tests, was only to check the values reported by A/Prof Cross. In conclusion, his opinion was expressed in the following terms: The following is stated in support of conclusions drawn by the Cross Reports. It would then appear that a spear throw by a strong individual is the most logical method of Caroline Byrne being projected from the ledge (North Ledge…) into the Gap. [199]

[52]

Prof Elliot's second report

On 1 November 2005, Prof Elliott provided a further report in which he emphasised that his role was not that of an expert witness but, rather "to check the accuracy and to some extent the validity of the data that Associate Professor Cross used to draw his conclusions". [200] In fulfilling that role, he concluded, after reviewing the issue of throw speed and jump and dive speeds, that A/Prof Cross: [H]as presented an accurate mechanical interpretation of the alternatives associated with the projectile motion of Caroline Byrne. I support the view that a spear throw from [the northern ledge] is the appropriate conclusion when the data presented are reviewed. [201]
Focusing for present purposes on the analysis of "throw speeds", Prof Elliott said as follows: The assumption that a woman would be pushed through a position approximating her centre of mass is consistent with a throw where there would be minimal rotation - as was indicated by the injuries to the body. While earlier Reports from A/P Cross used a variety of throwing techniques, I agree with his summation that a 'spear throw' was the most logical. In establishing data validity it was important to investigate the video analysis technique used in the calculation of velocity variables. These followed accepted guidelines in the measurement of velocity data from video. In an attempt to ascertain the validity of data collected with human subjects I ran a number of trials at our University swimming pool. A fit young 83 kg University student was able with an approximate 2m run-up to throw a 57 kg female with a mean velocity of 3.7 m/s. One is able to conclude that a larger and stronger person could 'spear throw' a similar female at approximately 4.7 m/s. I am sure also that this task would be easier if the female was not conscious and the ethical circumstances of throwing the female in this manner removed. [202]
By letter of 16 May 2005, [203] Det Insp Jacob invited A/Prof Cross to liaise with forensic services and ultimately to report upon the video reconstruction of the process of recovery in 1996 in which Cst Camwell identified Hole B on the rock floor as the point of recovery under direction from Sgt Powderly on the cliff top. He was informed that request was made as a result of the continuing consideration the DPP was giving to the sufficiency of evidence to support the case that Ms Byrne was murdered.
He was asked to report specifically upon the following: 1) Can you identify the exact point on the rock platform indicated by Constable Camwell? 2) If so, is that point of impact as indicated different to the other two previously considered by you? 3) If this point as indicated by Constable Camwell is different to those two you have already considered, could you give expert consideration as to how Caroline Byrne could have reached that point, having regard to those issues you have already considered and results collected during your previous investigations? [204] (In effect, it would appear that Det Insp Jacob or someone in the ODPP considered that the doubt that attended the point of recovery may have admitted of a third point of recovery, dependent upon whether the point Cst Camwell identified was or was not the point of recovery A/Prof Cross gave consideration to in the preparation of his first report. It does not appear this issue was pursued.)
On 16 November 2004, A/Prof Cross informed Det Insp Jacob via email [205] that the editors of the Journal of Forensic Sciences had forwarded his paper to two independent forensic scientists whose positive peer review had been forwarded to him. He said they had both suggested ways of improving the presentation of his work but, according to A/Prof Cross, they found no fault with it. There is no submission from the plaintiff that the paper A/Prof Cross submitted for publication was inaccurate or that it contained manipulated results or tendentious reasoning. While it might fairly be said that the submission of the article for publication is another expression of A/Prof Cross's appetite for recognition, it does not suggest the dishonesty and subterfuge which are the hallmarks of the conduct which the plaintiff submits constitutes him as a prosecutor.
On 25 November 2004, Mr Tedeschi sent an email to Ms Turner in which he indicated: I have had a very quick read of Paul Jacob's note to you. I feel that the requests that were sent to him do not really accurately reflect the discussions that Ken and I had with Professor Cross. I have solicited Ken's views, as Ken's memory is far better than mine, and we would make the following comments to explain our requests. [206] (This would appear to be a reference to the requisitions sent on 2 and 3 September 2004 extracted at [466]-[467] above.)

[53]

Mr Tedeschi's comments on A/Prof Cross's test results

Mr Tedeschi then set out his "comments", which are extracted below. Three hours later these comments were forwarded, verbatim, to Det Insp Jacob: 1. Re do the running and jumping experiments using a run up of 4 m and calculating the launch speed. The reason being that his [A/Prof Cross's] previous experiments were based on a 4.5m run up but he subsequently learnt the available run up was only 4 m. In his report he does give estimates for 4 m but they are not based on experiments rather on working back from his 4.5 m calculations. 2. His running and jumping tests involved persons running and jumping as would a hurdler. This does not account for the braking he claims is required for the person to rotate to such a degree that they end up travelling head first, as did the deceased. In his report he refers at p.7 point 5.(d) that the braking required would reduce the horizontal launch speed by about 0.3m/s. He does not explain how he arrives at that figure. I believe we were after him to conduct testing which would show the braking which could then be measured. 3. In relation to the spear throw tests, he has not measured the run up taken by the participants in his experiments before they release the person. This would need to be measured using the maximum 4 m available. Also, it is unlikely that a person would throw the deceased from the very edge of the ledge due to fear of falling off the edge, so it would probably be prudent to consider the situation if the deceased was released a distance back from the ledge eg 0.2m - 0.5m. Would it be possible to achieve the required distance by use of a spear throw? It was commented at the conference that the tests he did was with a person bracing themselves to be thrown. It was raised that if the situation was of a limp body, eg unconscious, being thrown would the arms and legs impede the distance the person could be thrown. Accordingly it was suggested testing with a dummy with arms and legs may be able to demonstrate the effect of a limp weight on the throw. (Emphasis added.) 4. We requested that testing should be done using 2 persons throwing a person using a spear throw to see if that increases the horizontal launch speed. All his previous testing was with one person. We may have also asked if underarm throw using two people be incorporated in the new tests. 5. I'm not sure what is meant by requisition 1 however it may be that the report does not provide any great detail about the height, weight, fitness and athletic experience and ability in relation to the subjects used in the experiments. Accordingly a statement should be obtained from participants used in the new and perhaps the previous experiments which addresses these issues. [207]

[54]

Further requisitions are sent

On 30 November 2004, Det Insp Jacob forwarded to A/Prof Cross a set of requisitions mirroring those he received from Ms Turner under cover of a formal requesting letter identifying what Det Insp Jacob described as "some specific issues" arising out of the conference with Mr Tedeschi and Mr McKay. [208] Additional statements were also provided, inclusive of statements from various people obtained after the Sufficiency of Evidence Report was furnished, which related to the plaintiff's physical strength and general fitness. They included a statement from Stephen Duval of 25 November 2004, [209] upon whose evidence the Crown ultimately relied at trial to establish the plaintiff's capacity to bench press 100 kilograms.
From Det Insp Jacob's letter, it is clear that at the conference from which these questions emerged, the issue of the impact of throwing a limp body as distinct from throwing a braced body (the latter being the way in which the volunteers had conducted themselves) was obviously an issue of continuing concern, as to which Det Insp Jacob advised A/Prof Cross as follows: Accordingly, it was suggested that testing with a dummy with arms and legs may be able to demonstrate the effect of a limp weight on the throw. Could you please conduct such a test? [210]
On 1 December 2004, two further requisitions were formulated by Ms Turner directed to this issue (requisitions with which Mr Tedeschi agreed). A/Prof Cross was asked to conduct the following underarm "limp throw tests": A. Two males, throwing a limp person in an underarm fashion (person facing group with limbs limp), holding that person by the shoulder/upper arm and upper leg; (Paul, I didn't suggest tests with one male doing this scenario as it is probably impossible for one male to hold the person by their shoulder/upper arm and upper leg and then throw them - however, I guess this could be attempted to see how awkward it is) B. One male, throwing a limp person in an underarm fashion (person facing group with limbs limp), holding that person by their clothing - that is, the clothing at the scruff of the neck, and the clothing at the bottom/waist of the pants; and then, two males throwing a person in that same fashion. [211]

[55]

Further poolside tests are conducted

It appears that as a result of these requisitions, further throw tests were conducted at Goulburn Police Academy. In response to the specific request concerning the limp person, A/Prof Cross referred Det Insp Jacob to the bottom of page 10 of his second report where he reported that a "limp throw test" had already been conducted. [212] As I have already noted, that section of A/Prof Cross's second report makes it clear that it was the third of three throws by Male A (the stronger of the two males) in which the female volunteer was asked to remain "limp" rather than support herself by hanging onto the thrower as she was "spear thrown" from shoulder height. While this generated a launch speed of 4.71 metres per second (the same as the first of the three throws), the sufficiency of that data to support a conclusion that a limp (that is, unconscious) subject could be thrown at the same launch speech as a conscious and compliant subject was a point of focus in Mr McClintock's cross-examination of both A/Prof Cross and Mr Tedeschi, albeit for different purposes.
It was put to A/Prof Cross: Q. Did you consider that question to be adequately answered by the results reported on page 10 which are before you on the screen? Just have a look at the screen please. That's page 10 of your second report. Just have a look. That is where you reporting that the taller man, nominated as male A, through the woman subject once inviting her to be as limp as she could be, I assume, and that the reported result was that in that throw 4.71 metres launch speed was obtained; is that right? Have I got that right? A. Correct. Q. Are you, in effect, offering the opinion that a limp body would not in any way in your view impact on launch speed? A. Correct. Q. That is, of course, a matter of which you had no expertise whatever? A. No, I'd just finished taking that measurement and I found that there was no significant difference in the launch speed. That was my experimental result. I had the expertise to present my result and to conduct the test. HER HONOUR Q. You only conducted one throw? A. Yes, correct. For the simple reason - I mean I would have preferred to have done more tests - but the simple reason was the woman being thrown was quite scared that she was going to be dropped if she remained limp. Q. That would rather, I would have thought, undermined the integrity and the reliability of your opinion that an unconscious subject made no measurable difference to launch speed. The fact that you didn't have a willing subject made the results wholly unreportable scientifically, surely. A. No, at this stage my question was basically is it possible for a woman to be thrown at a speed of 4.5 metres per second or more either when she's cooperating or whether she's limp and my one test showed that, indeed, it was possible to be thrown at more than 4.5 metres per second. Q. Allowing you to report as your concluded view that the state of consciousness or unconsciousness in the thrown subject made no difference at all to launch speed. I must say, frankly, and the parties will forgive me, I find that wholly remarkable as a reliable scientific statement of opinion. [213]
The following questions were put to Mr Tedeschi by Mr McClintock: Q. I've taken you to that part of the second report that dealt with the limp throw, didn't I? A. Yes. Q. You knew that Professor Cross had carried out, because he says so, only one limp throw, didn't you? A. I can't recall. He - he did subsequent experiments with women being thrown at swimming pools. I can't recall whether any of them were limp throws or not. Q. You see, you recognised, didn't you, on reading that part of the second report that I took your attention to and if it's necessary, I'll have it shown to you again, that one throw was simply unsatisfactory as a basis, first, to consider whether criminal charges should be brought, you realised that, didn't you? A. No. … Q. But when you read this you recognised that there is a deficiency in the number of limp throw tests that had been done, didn't you? A. No, I didn't. [214]
As to the fourth requisition, which concerned whether two people using an underarm "spear throw" technique would result in an increased horizontal launch speed, A/Prof Cross said he could undertake that test at Goulburn, but saw no need for it since testing had already confirmed that the maximum throw speed utilising that technique was 2.7 metres per second. [215]
The answers to the questions as posed and arising from conference with Mr Tedeschi and Mr McKay were to be provided in the form of a further report which A/Prof Cross was told by Det Insp Jacob was to be provided to the ODPP for their consideration. Some of those answers ultimately found expression in A/Prof Cross's third report of 17 February 2005. The limp throw issue was not further addressed.

[56]

The bench press issue

In the interim, A/Prof Cross raised with Det Insp Jacob information he had apparently received from Det Sgt Quigg to the effect that the plaintiff could bench press 100 kilograms. A/Prof Cross advised Det Insp Jacob that information could be used to "calibrate our best throwers … as an indication of strength". [216] He added: Just giving their height and weight is not the same thing as measuring their strength, although both are sort of related. The spear throw is similar to a bench press in that it is the chest and upper arms that do most of the work. [217]
In his third report, dated 17 February 2005, [218] A/Prof Cross made express reference to the age, height and weight of Males A and B, as correlated to their capacity to bench press a maximum weight in a single press and in six repetitions as an indication of their upper body strength. Their bench press capacity (which A/Prof Cross made clear was determined independently of his tests) was, as A/Prof Cross said in his report: [A] rough guide to the strength of each male and no claim is made as to the exact relation if any between throw speed and bench press figures. … Upper body strength is one parameter that will determine throw speed but throw technique is another. [219]
He noted that in the further tests conducted on 13 December 2004, Male A recorded a horizontal throw speed of 4.72 metres per second, similar to his previous throw speeds six months earlier (respectively at 4.71, 4.83 and 4.71 metres per second) and on each throw a short run-up of between 2 and 3 metres was made. Male A's maximum bench press was 120kg on one repetition, and 100kg on six repetitions. By comparison, Male B who was older by ten years, shorter by 10 centimetres, and 20kg lighter, and who had a bench press capacity on one repetition of 95kg and 85kg on six repetitions, achieved a throw speed, in the single throw performed on that occasion, of 3.78 metres per second.
Given the differential in the heights of Male A and Male B, and what A/Prof Cross recognised as the difficulty in coordinating the necessary run-up and throw action for a two person throw, horizontal throw speeds of 4.02 metres per second and 4.15 metres per second were recorded. Similar speeds were generated with swinging the volunteer several times before being thrown without a run-up. A/Prof Cross also noted that on one of these manoeuvres, one of the male throwers overbalanced and fell in the water.
A/Prof Cross drew this conclusion from the additional poolside throw tests: I conclude from these results and from my previous tests that the only successful throw technique is the spear-throw technique since it is the only technique that results in a headfirst throw at sufficiently high speed and since it presents no danger to the thrower. A stronger than average male can achieve the necessary throw speed without the assistance of another male, he can do so from a safe distance back from the edge of the cliff and there is no need for a run-up distance greater than 2 or 3 m. Running towards the unprotected edge of a cliff while carrying another person might be regarded as a very dangerous thing to do, but the throw tests proved otherwise. [220] (Emphasis added.)
In considering that "spear throwing" a person after a run-up to the ledge of a cliff is not dangerous from the poolside tests, it is obvious that the unstated assumption is that the test thrower has executed the "spear throw" with the assurance that there is no risk that he will catapult over the edge of the pool with the person being thrown because he knows they will not grip or struggle or otherwise conduct themselves in a way that might destabilise him. The thrower at a cliff edge (the plaintiff in this instance) cannot sensibly be imputed to have that mindset. The conclusion also proceeds on the further unstated and untested assumption that an unconscious person whose body is limp and offering no resistance at all to being thrown presented no additional risk to the thrower.
The impact of these two unstated and untested qualifications to the conclusions expressed by A/Prof Cross on the third report that "the only successful throw technique is the spear-throw" [221] by a "stronger than average male" [222] were the subject of intense focus in these proceedings.
As to the question that had been raised by Mr Tedeschi with A/Prof Cross concerning the effect on jump speed by reducing the run-up distance to four metres, A/Prof Cross reported that the reduction in jump speed was larger than he had estimated in the second report, such that none of the jumpers with a 4-metre run-up were capable of achieving the horizontal distance required to reach Hole A. He assessed six of the seven jumpers as better than average in athletic ability, from which he concluded that any hypothesis that had Ms Byrne jumping or diving to her death could be excluded.

[57]

Further requisitions are sent and a further site visit arranged

By email of 6 May 2005, Ms Turner provided Det Insp Jacob with written confirmation of further requisitions which, on the face of the email, appear to have been discussed the previous day. The requisitions are as follows: 1. Please confirm whether Powderly or Camwell made a notebook entry in relation to their duties on the evening of 8 June 1995; 2. Please provide evidence of the way in which the 1st point of impact came to be marked on the photogrammetry plan - how did Greatorex point it out? Who to? How was it then transferred onto the plan? Who transferred it onto the plan? Who drew the plan? 3. Please explain exactly how the error of the point of impact came to light; 4. Was the photogrammetry plan a "to scale" plan? Please provide the plan; 5. Please provide (or confirm if you have provided) statement from Evers and Jubelin in relation to their involvement with Greatorex and the point of impact; 6. Please identify the precise location being pointed to by Camwell in the reconstruction video, and measure its distance from relevant points on the cliff. This location should then be provided to Professor Cross for him to evaluate whether it could be excluded as a possible point of impact. 7. Please confirm how Powderly came to say that the point of impact was "9 metres" from the cliff - was this ever measured? How did he arrive at this figure? 8. Please confirm who drew the black line and arrow on the photograph attached to Powderly's statement (the same photo in which he draws a red line indicating the point of impact). What does that black line and arrow point to in that photograph? 9. Once the 3rd point of impact is located and measured, please provide a "to scale" plan of the area, marking all three identified points of impact on it. 10. Please confirm when Camwell went down to the rocks on the night and if she saw the body in situ. [223]
In an email to Det Insp Jacob of 18 May 2005, [224] A/Prof Cross recited his understanding of how and when Hole B came to be identified as the "incorrect" landing spot and how he proceeded on that misassumption in the preparation of his first report and thereafter until he learnt otherwise in April 2004. He raised with Det Insp Jacob what he described as one more piece of evidence relevant to that issue in the following terms: [Sgt Powderly] said CB was jammed in the cavity up to her waist and that it was a struggle to get her out. Can he pinpoint the cause? That is, were her shoulders jammed in the cavity or was it her hips? That will tell us something about the shape of the cavity. [225]
In a follow-up email on 8 June 2005, [226] after a further site visit to the Gap that day, A/Prof Cross referred to Sgt Powderly's evidence at the inquest where he said that he had checked Ms Byrne's head injuries by looking through a gap in the rocks. He said: Both cavities have such a view, but one gives a good clear, close-up view and the other has a very restricted view. One would allow Powderly to see and touch the head, the other gives a tiny view at a long distance. Without telling him which is which, can he describe the view he had? That will add weight to the identification of the correct cavity. [227]
A/Prof Cross went on to say that the measurement taken that day from the edge of the cliff near the corner post to Hole B using a "plum bob" was 9.3 metres; essentially the same as the 9 metre measurement he used for the purposes of his first report based on Sgt Powderly's evidence at the inquest.
Two hours later A/Prof Cross reported by further email that he had taken a video of the mannequin being inserted into Hole B. He said, "it went in easily and about up to the waist". [228] He referred to someone in attendance being "an Irish/English accented guy" [229] and suggested a statement be taken from him as he had reported: [230] [T]hat he could see the whole head [of the mannequin] in the correct cavity but he could only see one ear … in the "wrong" cavity. [H]e estimated the distance as about 2 m.
The following day A/Prof Cross reported that on examining the video taken at the site visit he could see that the mannequin being lowered from the cliff top dropped into Hole B without having to be pushed. In his view, it was also removed too easily. He volunteered the view that, "[i]f the measuring guys did their job properly we will find that the wrong cavity is too wide". [231]
The same day, upon further review of photographs taken at the Gap, A/Prof Cross reported to Det Insp Jacob that the mannequin would be clearly visible through a tunnel into the correct cavity but "it is almost impossible to see anything via the tunnel in the 'wrong' cavity" [232] .
By email of 14 June 2005, [233] A/Prof Cross asked Det Insp Jacob if measurements could be obtained of Ms Byrne's shoulder width. He noted that the mannequin was only 330mm wide with its arms removed and 365mm with its arms outstretched. Two women whose shoulder widths he had measured that afternoon, and who he considered "skinny" and "slim", had shoulder width measurements of 380mm and 420mm. He noted that the autopsy did not list Ms Byrne's shoulder width and queried whether the modelling agency may have those statistics to assist him in making an assessment of Ms Byrne's hip width and shoulder width, and if necessary, to assist him in making some assessment of Ms Byrne's actual measurement by reference to other females of similar height and weight.
In an email of 16 June 2005, [234] A/Prof Cross again emphasised the importance of asking Sgt Powderly what he was able to see through the tunnel into the rock cavity. He emphasised that Det Insp Jacob was obviously the appropriate person to undertake that questioning to ensure Sgt Powderly was not led to the answer. He said: I don't know the legal aspects of this but it is clearly important to do it the right way in a legal sense. They have different rules to the rest of us. [235]
On 22 June 2005, A/Prof Cross sent an email [236] to Det Insp Jacob in which he said that were he to write the first report again, even were it based on Hole B being the point of recovery, he would probably conclude that it was more likely that Ms Byrne was thrown in contrast to his former view that the probabilities favoured a jump. He said that at the time of preparing his first report he did not have any high speed throw results since the "spear throw technique" had not been used as at that time. In addition, he said he did not at that time take into account that Ms Byrne did not simply run off the cliff but that she must have rotated to have landed on her head.

[58]

A fourth report is requested

In a formal requesting letter of 30 June 2005, [237] largely, it would seem, in response to the emails summarised above, Det Insp Jacob asked A/Prof Cross to reconsider the conclusions he had earlier expressed taking into account the additional poolside testing, and taking into account the effect of running on an uneven surface. He also attached a consultancy request produced by the Gordon Charles Management Group recording Ms Byrne's personal details. I note that there was no shoulder width/circumference measured, although bust, weight and hip measurements were recorded. These measurements were taken in March 1992. In what appears to be a self-report, Caroline Byrne described her sporting prowess in basketball, aerobics, swimming, roller blading and roller skating as excellent; that her diving skills and her skill as a windsurfer and body surfer as good; and her horse riding and jet skiing as fair.
On 3 August 2005, Det Insp Jacob forwarded to A/Prof Cross a copy of a colour photograph of Ms Byrne taken prior to post-mortem and two anatomical diagrams prepared during the course of the post-mortem, variously appointing a spread of abrasions across the chest and back with one abrasion 32cm in length on her left thigh. [238]
In the course of finalising what became A/Prof Cross's fourth report, he informed Det Insp Jacob by email of 15 August 2005 that his "deliberately brief" [239] draft conclusion (pending receipt of data from forensic imaging) was that the incorrect cavity (Hole B) would not have allowed Sgt Powderly to have observed Ms Byrne's head injuries at close range. He further reported his final conclusion (albeit in draft) as follows: Regardless of which of the two cavities is regarded as the correct cavity, it would not be possible for Caroline Byrne to have reached either of them by jumping or diving, given her limited athletic ability. On the other hand, she could have been thrown head first into either of the cavities by a strong man acting alone. [240]
On 16 August 2005, A/Prof Cross emailed Det Insp Jacob noting what he described as "something interesting" in Sgt Powderly's evidence at the committal where he said: My first observations revealed that the deceased was lying head first in a crevice between two large boulders, approximately waist deep. [241]
A/Prof Cross observed: The correct cavity is indeed formed by 2 large boulders. The incorrect cavity is formed by 4 medium sized rocks. [242]
The following day he asked Det Insp Jacob by email [243] to ask Sgt Powderly if the "crevice" in which he found Ms Byrne lying face down had "just two sides or was she jammed in a cavity on three or all four sides?". [244] He then commented as follows: If it was a narrow crevice formed by two large boulders then the crevice itself may have been in the shape of a wedge so she may have been wedged in rather than squashed in sideways by her shoulders. There was no damage to her shoulders. [245]
Three hours later, in yet another email, A/Prof Cross noted that the photograph of the mannequin taken at the recent site visit had the mannequin in a cavity formed by "a bunch of rocks at the base of the two boulders". [246] A/Prof Cross said: I'm confused about what [Sgt Powderly] says he saw. It seems like he's half right, but his descriptions are not complete... The only way to resolve this is to ask him about it. [247]
He went on to say: Fortunately, it is no longer a serious stumbling block. I can show from my recent experiments that CB could not have jumped or dived into either of the two landing points. Nevertheless, I think you will agree that we need to talk to Powderly to try to clear up what he says he saw. [248]
The following day, A/Prof Cross forwarded a list of questions he thought Sgt Powderly ought be asked. [249] The interview that Det Insp Jacob conducted with Sgt Powderly on 14 October 2005 did not follow the order or terms of the suggested questions. Quite clearly, Det Insp Jacob applied his own policing skills and judgment to the interview process which resulted in a statement being taken from Sgt Powderly addressing a wide variety of issues bearing upon the finding and retrieval of Ms Byrne's body. The detail Sgt Powderly provided in this statement was considerable. He focused his attention on the precise point where he first saw Ms Byrne's body, together with its orientation at that time, viewed both externally and by close examination through the cavity in the rocks.
On 13 September 2005, Det Insp Jacob forwarded to A/Prof Cross the photographs and photogrammetry plans, including relevant measurements taken on 8 June 2005 at the Gap for inclusion in his final (third) report. [250] A statement of Sgt Powderly dated 14 October 2005 was attached.
Throughout the preparation of A/Prof Cross's fourth report, multiple e@gle.i entries were created by Det Sgt Quigg confirming the ongoing process in which A/Prof Cross was engaged in its preparation, including meetings he attended with A/Prof Cross at the Gap where measurements were reviewed. On 18 October 2005, after receiving Sgt Powderly's statement, a further site meeting was convened for what was described in the e@gle.i report of 19 October 2005 to take "measurements of the width and breadth and depth" [251] of the "incorrect rock cavity". [252]
On 17 November 2005, two weeks after the service of his fourth report, A/Prof Cross emailed Det Insp Jacob proposing that in the event that a prosecution was commenced, his running, jumping and diving speed experiments be presented filmically and that he had time to produce that material if requested. [253] In particular, he suggested that a film might address what Mr Tedeschi had raised with him in conference as the unlikelihood of a person running up to the edge of the cliff to throw someone over the edge because of the danger involved. A/Prof Cross considered that showing a "spear throw" on film might convince Mr Tedeschi otherwise, since a film would enable him to see "for himself that (a) there is no danger at all and (b) a person can be thrown faster than they can jump". [254] (He attributed to Mr Tedeschi no belief in the second proposition.) While this shows A/Prof Cross's eagerness to be understood, even listened to, it is not in my view suggestive of a process of instructing Mr Tedeschi to ensure his knowingly false opinions are uncritically accepted.
In January 2006, A/Prof Cross was invited to review the full assemblage of crime scene photographs and photogrammetry plans in relation to the investigation as part of the ongoing consideration being given to the sufficiency of evidence undertaken by the DPP. [255] In that exercise, two comprehensive statements from officers within the forensic imaging section and the incident reconstruction section of the Forensic Services Group were prepared and, it might fairly be assumed, furnished, together with A/Prof Cross's fourth report to the ODPP for their ongoing consideration. It would appear that Mr Tedeschi did not convene a further conference with A/Prof Cross before rendering his advice to Mr Cowdery.

[59]

The fifth Cross report

In the introduction to what has been described in the evidence as the 8 February 2006 summary report [256] (the fifth Cross Report), A/Prof Cross set out in summary what he said the report was designed to encapsulate, namely, a summary of the most significant findings and the reasons supporting those findings, and to provide a clear overview of the opinions he arrived at in the process of preparing the four previous reports.
He said as follows: [E]ach report [referencing the four previous reports] contains many technical details that tend to obscure the main issues and that may not readily understood by a lay person. The present report is designed to eliminate those shortcomings, but it is necessarily short on technical details. [257]
He first referred to the conclusion he arrived at in his first report of 19 November 2003 that Ms Byrne did not accidently slip or trip off the cliff edge, neither was she pushed or did she jump at low speed, principally because of the horizontal distance from the cliff face to the landing point as he believed it to be at that time (namely Hole B). It would seem that these findings have never been doubted; neither have the allied conclusions expressed in the first report that for her to have landed nine metres from the cliff face she was either thrown at high speed or she jumped or dived at high speed.
As A/Prof Cross went on to say: The main problem was to determine which of the two possibilities was the most likely or whether indeed one of the two possibilities could be ruled out as being impossible. [258]
He said that in addressing that issue he needed to conduct experiments as to the speed at which a person can jump or dive, and the speed at which a person can be thrown, there being no scientific data to which he could refer where the launch speeds of persons of average athletic ability to run or jump or dive were collected, although there was similar data for elite athletes.
After then claiming to have resolved the question of the correct landing point as one of the tasks briefed to him by Det Insp Jacob in June 2005 (on any view a serious overstatement of his contribution to settling the issue), he concluded that Ms Byrne was thrown from the cliff top; a conclusion which he considered did not depend on which of the two landing points (Hole A or Hole B) was in fact correct. He considered that Hole A (which he referred to as the "correct" landing point) could only have been reached over a horizontal distance of 11.8 metres and from one launching point, being the tip of the northern ledge. Hole B (the "incorrect" landing point) could have been reached from two possible launch sites on the southern ledge, 9.3 metres and 13 metres from the cliff, respectively (figure 1 in the report diagramises that narrative). He went on to say that for each of the two possible landing points, it was possible to determine possible corresponding launch points, and to measure the distance available for a run-up to each of them.
He said that in concluding that Ms Byrne was thrown to her death rather than that she jumped to her death he relied largely on the fact that she was "not a good athlete". He went on to say that had Ms Byrne been "an elite athlete", he would have been unable to distinguish between a throw and a jump on the basis of the "geometry of the landing point and the cliff environs". [259] He said that evidence regarding Ms Byrne's athletic ability, together with his experiments where graduated running, jumping, diving and throwing speeds were measured, allowed him to conclude two things: 1. Ms Byrne did not have the athletic ability to jump or dive at sufficient speed to reach either of the two possible landing points; and 2. A strong man, acting alone, would have been able to throw her at sufficient speed to reach both landing points, provided he used an appropriate technique (the "spear throw" technique). [260]
A/Prof Cross posed and answered a number of what he described as questions that followed from his conclusions, some of which he regarded as having been answered in the course of the investigation and some which were not. [261]
Through his investigations he concluded that: 1. Depending on the throwing technique used, "it was not particularly dangerous" [262] to run to the edge of the cliff in order to throw a person over the edge; 2. As to Ms Byrne's state of consciousness when she was thrown, he said the evidence was silent on that question.
He reported, however, that a female can be thrown at the same speed regardless of whether she braces herself or remains limp. [263] He went on to make it clear that he conducted no experiments where the female subject actively resisted being thrown. He did, however, venture the view that "it would clearly be more difficult and more dangerous to throw a woman who was struggling than to throw a woman who was not, especially if she attempted to hang on to the thrower", [264] from which he ventured the suspicion that Ms Byrne was not fully conscious when she was thrown or when she was lifted over the safety fence onto the north ledge. He did not consider that scenario as exclusive of other possibilities.
He then posed and answered other questions as to which it is clear he had no expertise, including: 1. Why throw at maximum speed when a low speed would have resulted in certain death? 2. How did the thrower know what technique to use to throw for maximum distance? 3. Why was Ms Byrne thrown rather than pushed? 4. Why was Ms Byrne thrown to her death?
Why these questions were posed by him and then answered was not addressed in the evidence in these proceedings. I have proceeded on the basis that they reflected A/Prof Cross's approach to his engagement by police as it developed from 2003 to this time, namely to muse on the course of the police investigation and the presumed motivations, expectations and attitudes of those involved, including Ms Byrne and the person or people who he believed killed her, without any invitation to do so, but without having been counselled not to do so.
What was the subject of intense questioning in the proceedings was Mr Tedeschi's reaction to reading this report, since it is patent that neither the questions nor the answers called for the application of any expertise of any relevant kind. Mr Tedeschi said he simply ignored this part of the fifth report, accepting it was based upon pure conjecture because he considered A/Prof Cross's "core findings" in his previous reports and summarised in this report as valid and supportable. His evidence in this regard will be developed later.
The summary fifth report went on under successive subheadings to deal with the "landing spot", "launch points" referable to the landing spot, "jump and dive speed measurements" (with tabulated and graphically represented results), "physics of jumping", "launch speed estimates", "launch speed calculations", and "jump vs dive". The information upon which he expressed his opinions referable to each subject heading was set out in extensive detail and is not repeated here.
On 15 February 2006, Mr Tedeschi enquired of A/Prof Cross in what appears to be a face-to-face conference why, in his second report of 26 July 2004, the launch speeds specified were greater than those specified in his fourth report. In an email sent to Mr Tedeschi the following day, A/Prof Cross provided the following explanation: The reason is given in the bottom half of page 7. That is, the required speeds are reduced when one takes into account (a) a takeoff distance of 0.5 m (ie back foot on extreme edge of cliff and centre of mass 0.5 m in front of the back foot, which is a typical for a jump or dive. (b) a launch angle 10 degrees above the horizontal rather [than] a purely horizontal (zero degree) launch. I took these factors into account in my fourth report in order to quote the minimum speeds necessary for a successful launch, rather than quoting the higher speeds of my second report. I quoted the higher speeds in my second report because I wanted to keep the calculations as simple as possible at that stage in my report. [265]
He explained the higher launch speeds quoted in his second report were for "simplicity", but went on to emphasise that there was no material inconsistency between the higher and lower launch speeds. He concluded by volunteering the view that what may have appeared to Mr Tedeschi as inconsistencies were not "since the answer depends upon the object in undertaking the calculations". He said: In biomechanics there are also a few variable one can fiddle with to come up with a range of answers. I found that the MINIMUM required launch speeds were greater than anything that CB could possibly achieve. [266]

[60]

The sixth Cross report

On 21 February 2006, [267] A/Prof Cross forwarded directly to Mr Tedeschi a draft version of a further summary report that Mr Tedeschi had apparently requested of him. This became the sixth Cross report of 8 March 2006, a report additional to the fifth summary report of 8 February 2006, although both were described as "summary" reports.
A/Prof Cross went on to say in the email which attached the draft report: Before I finish it off by double checking for errors etc, can you have a look and let me know if it contains everything you asked for in the way you wanted it etc. … You requested all my report photographs. Did you mean as is, exactly as they appear in my reports, or just the bare unmarked and unlabelled photos before I drew labels etc on top of them. [268]
By return email three hours later (copied to Ms Turner and Mr McKay), Mr Tedeschi responded: This is much much better, thank you very much. It will be much easier to lead your evidence to the jury from this and the defence will find it much easier to understand, as will the judge. [269]
Mr Tedeschi went on to say in that email that the only suggestions (emphasising they were only suggestions as "you are the expert!" [270] ) concerned three specific paragraphs as follows: 1. Mr Tedeschi sought clarification as to what the throw techniques were and that the techniques did not include a "spear throw". (I note in the final version of the sixth report that addition was made.) 2. Mr Tedeschi expressed concern that the impression was that, other than a "spear throw", the throwing methods involved two throwers acting simultaneously and invited clarification. 3. Mr Tedeschi queried why a man of "superior strength" such as the plaintiff would only achieve a maximum launch speed of 4.5 metres per second. He went on to say: If [the plaintiff] was the same strength as your best subject [being Male B at the Randwick poolside experiments], wouldn't he be able to do better than that. Can you speculate that he [the plaintiff] is clearly capable of a throw of 4.5 m/s and possibly even more. [271] (Emphasis added.)
The final version of the sixth report was amended to suggest that by interpolation from the bench press and horizontal spear throw data specific to Male B: A maximum throw speed of about 4.5 m/s could be expected for a person of Gordon Wood's strength, more than sufficient for a landing at [Hole A]. [272]
Both A/Prof Cross and Mr Tedeschi were cross-examined in the proceedings as to why Mr Tedeschi framed the requisition in those terms and how A/Prof Cross interpreted it. It is the plaintiff's case that for Mr Tedeschi to invite an expert witness to "speculate" is a gross breach of his obligations as a Crown Prosecutor, equally as it reflects adversely on A/Prof Cross's appreciation of his obligation to strictly adhere to the Expert Witness Code of Conduct. Their evidence and the submissions of the parties concerning that aspect of their evidence will be considered later.
After the committal in February 2008, A/Prof Cross was asked by Det Insp Jacob to address three issues that had apparently arisen in conference with Mr Tedeschi and to report on them. In a formal requisition of 12 February 2008 he was asked to address the following questions: [273] 1. The correlation between bench press ability and throwing ability, which may involve conducting experiments of a relevant kind; 2. Identifying the difference in width of shoulders of females with arms by their side or straight about their heads; and 3. A further experiment with a mannequin to better demonstrate how, if Caroline Byrne's body hit the top of Pyramid Rock, her legs would swing around and impact with the rock, thereby damaging them, as a means of supporting A/Prof Cross's contention that she entered the cavity head first, either directly or very close to the opening of the cavity.
That request in turn resulted in the preparation of A/Prof Cross's seventh report of 4 April 2008.

[62]

The plaintiff's case against A/Prof Cross as prosecutor restated

The plaintiff's case is that from September 2003, when A/Prof Cross was formally retained by the NSW Police to provide expert consultancy services, and then from January 2004 through to February 2006 when he knew the matter was under consideration within the ODPP, he counselled or procured Mr Tedeschi to advise that a prosecution of the plaintiff for murder be initiated, and thereafter in his evidence at trial, on the appeal, and in these proceedings, he has conducted himself as "an advocate for a cause".
The plaintiff submitted that: [A/Prof Cross's] partisan agenda affected how he constructed his experiments, how he collected and interpreted evidence, how he interpreted his results, and how he expressed his opinions. [274]
The plaintiff further submitted that A/Prof Cross's "consultancy" extended well beyond providing expert opinion evidence as a physicist, and even beyond the specialised domain of biomechanics (as to which he was not qualified to express an opinion in any event) into the forensic disciplines specific to the training, study and experience of an investigator. The plaintiff submitted in that capacity he became progressively imbued with what he knew or believed was the belief of, initially, Det Insp Jacob and subsequently, Mr Tedeschi, that the plaintiff had murdered Ms Byrne, and that he consciously and consistently expressed his conclusions informed by that fact.
The plaintiff went further to advance the rather pithy submission that the Court would conclude that as an expert (or masquerading as one) A/Prof Cross was "bogus and a fraud" [275] and, further still, that his motivations were as venal as they were driven by a desire for self-aggrandisement and self-promotion.
In the context of those wide-ranging criticisms, in final submissions the Court was urged by the plaintiff to make the following findings of fact: [276] 1. A/Prof Cross intentionally represented himself as an expert witness having specialised knowledge which he knew he did not possess. 2. A/Prof Cross deliberately fabricated or skewed the evidence and his interpretation of it in order that the plaintiff be charged and convicted. 3. A/Prof Cross deliberately omitted to make clear the crucial qualifications to his opinions as to the circumstances in which Ms Byrne descended from the cliff top to her death which, if they had been clearly and plainly articulated, would have resulted in the plaintiff either not being charged with murder at all, or if he were charged, the charges would have been discontinued before or during trial. 4. A/Prof Cross falsified data or overstated its weight to assist the prosecution, on some occasions with the connivance of Mr Tedeschi. 5. A/Prof Cross lied, on his oath, during the trial, as he did before the Court of Criminal Appeal and in his evidence in these proceedings.
Those submissions, forcefully put, were primarily advanced in support of the plaintiff's case that, as a prosecutor, A/Prof Cross was actuated by malice. As the plaintiff made clear in his submissions, the attribution to A/Prof Cross of a motive to lie, and the fact of his having either lied in his evidence in these proceedings and on appeal, or to have failed to honestly account for how he conducted himself both as a consulting expert and as an expert witness at the plaintiff's trial, are a conclusive source of evidence that in that capacity he was not intent upon ensuring (as a prosecutor) that proceedings were initiated and maintained against the plaintiff for the proper purposes associated with the invocation of the criminal law, but by malice.
Whilst in his submissions the plaintiff consistently acknowledged that nothing that A/Prof Cross did after March 2006 renders him liable as a prosecutor, the submissions summarised above, forceful though they are, are without the particular essential to make good the plaintiff's contention that, in respect of A/Prof Cross's conduct before 2006, he deliberately and dishonestly fabricated evidence; that he deliberately and dishonestly falsified data; and/or deliberately and dishonestly overstated its probative weight, intending, by that deliberate subterfuge, that Mr Tedeschi's discretion as prosecutor would be misled.

[63]

Finding on whether A/Prof Cross is a prosecutor

Despite my grave misgivings as to whether A/Prof Cross had the appropriate insight as to his obligations as an expert witness at any relevant time, whether in direct consultation with police from September 2003 or in dialogue with prosecuting authorities both before and during the plaintiff's trial, I am driven to the conclusion that his failure to conform with the standards expected of him as an expert witness are not explained by his mendacity or his intention to deliberately and dishonestly mislead Mr Tedeschi, but by his hubris. It is that attitude which also infected his evidence in the proceedings. His continued failure to appreciate the shortcomings of his approach to his throwing experiments (in particular, undertaking only one so-called "limp throw test" to support the conclusion that an unconscious subject could be thrown at the same speed as a conscious and compliant subject) and his persisting failure to confine himself to offering opinions about matters as to which he had relevant expertise, coupled with his stubborn determination to deflect criticism of any kind, including the criticisms levelled at him by the Court of Criminal Appeal, is readily demonstrated in an article he authored entitled "Misinterpretation of Expert Evidence in Wood v R", [277] published in the Australian Journal of Forensic Sciences in 2014. The article was accepted for publication on 17 December 2013; that is, after the plaintiff was acquitted by order of the Court of Criminal Appeal.
A/Prof Cross gave evidence that his purpose in writing the paper was to address the criticisms levelled at him in the judgment of the Court of Criminal Appeal. In that paper he asserted that: [T]he science in the Wood trial, and the evidence on which it was based, was valid and rigorously tested, but the appeal court misinterpreted both the science and the rationale behind the scientific investigations involved. [278]
He went on to complain that no challenge was brought by the Director of Public Prosecutions to the High Court and no reason had been given (presumably to him) for the decision not to challenge it. As a consequence, in his view, there has been no informed analysis of the scientific evidence presented at the trial or any proper response to the Court of Criminal Appeal's evaluation of that evidence. He expressed regret that the Court of Criminal Appeal misinterpreted what he described as "both the physics and the primary messages that [he] attempted to convey" [279] in his evidence.
In responding to what he described as "an extraordinary attack on my personal integrity (rather than the science and my evidence itself)", [280] because of what he regarded as the Court's preconceived belief that there is a risk than an expert might become embossed with the single objective of solving a problem the party who has engaged them has identified (an unmeritorious observation all the more surprising given the tone of many of the emails extracted above), he said: If anything, that claim is an attack on the adversarial system itself, but it is also an attack on forensic sciences in general and myself in particular. The judges are making the outrageous claim that any expert employed by the police will almost inevitably fake or bias their results in order to come up with the result that the police are looking for. [281]
Those remarks, I interpolate, are not indicative of a person who is concerned to conceal his deliberate bias or to conceal the fact that he had knowingly faked experimental data (the findings alleged underpinning the plaintiff's case that A/Prof Cross should be regarded as a prosecutor), but someone who fails altogether to appreciate the risk of unconscious bias. I should also note that, so far as I understand it, the Court of Criminal Appeal did not have available to it the full course of correspondence passing between the police and A/Prof Cross over the course of many years which was discovered in these proceedings and then exhibited, and which on even the most cursory read, is illustrative of the very risk the Court identified. I commented during the course of the extensive summary of that material, and more than once, that many of A/Prof Cross's emails to Det Insp Jacob were not only unsolicited and not in any relevant sense responsive to the terms upon which he was formally engaged to advise, but were simply volunteered as were his hypothesised musings about the emotions, motivations, attitudes and predilections of Ms Byrne and her presumed attacker.
An exemplar of what I am satisfied is A/Prof Cross's persisting failure of insight into the deficiencies in the experimental regime he designed to ascertain the speed with which Ms Byrne descended to her death was his continuing failure to appreciate that a "single limp throw" executed as the third throw in a series of poolside tests was a wholly insufficient basis upon which to simulate the effect of "spear throwing" a limp or unconscious woman from the edge of a 30 metre cliff in the dark, or to assess the impact of a body in that comportment on throw speed. Of that experiment, he said the appeal court "did not like it".
He went on to quote McClellan CJ at CL where his Honour said "no effective experiments were done to ascertain whether an unconscious Ms Byrne could have been thrown the required distance", [282] before A/Prof Cross concluded: Despite having no formal qualifications in physics, the judge is effectively claiming here that he is an expert in the subject and that Newton's first law of motion cannot be correct. [283]
A/Prof Cross maintained the position in his evidence in these proceedings, astounding given the patent deficiencies of the "limp throw test", including criticisms of it by the defendant in these proceedings, that "the limp throw experiment was perfectly valid". [284] As A/Prof Cross would have it, McClellan CJ at CL dismissed the experiment as having no relevance, thereby expressing an opinion outside his Honour's field of expertise. The arrogance in that submission is telling of A/Prof Cross's approach as an expert consultant and as a witness in these proceedings. While he might be forgiven for not fully appreciating that the primary application of the laws of evidence are tethered in relevance, a concept with which the judges of the Court of Criminal Appeal are intimately familiar, his supercilious attitude is not.
Even were it open to conclude that A/Prof Cross was a prosecutor at the relevant time (that is, up to but not extending beyond the date that Mr Tedeschi advised Mr Cowdery that proceedings against the plaintiff for murder should be commenced), it is essential to proof of his liability as a prosecutor that when he "counselled or procured" the prosecution (that is, by conduct prior to 26 February 2006) he did so in circumstances that establish that he did so maliciously and without reasonable and probable cause.
That would have obliged the plaintiff firstly to prove what A/Prof Cross made of the material available to him and, secondly, what he should have made of it. In final submissions the plaintiff relied primarily upon what was said to be A/Prof Cross's dishonest conduct in procuring or counselling Mr Tedeschi to prosecute the plaintiff, to establish that he acted as a prosecutor tortiously. It may be that explains why no other category of conduct was identified in the submissions as evidencing A/Prof Cross's subjective lack of a belief in the plaintiff's guilt. Further, given that the plaintiff did not seek to prove that A/Prof Cross knew all the evidence that Mr Tedeschi relied upon in advising that proceedings be commenced (presumably because that is incapable of proof), whether that evidence was or was not objectively sufficient, or whether A/Prof Cross was aware of some or all of the evidence Mr Tedeschi relied upon in initiating the proceedings, does not arise. That being the case, were A/Prof Cross a prosecutor (which I have found he is not), proof that he procured the prosecution in the absence of reasonable and probable cause would depend upon proof of matters, within his knowledge, that he knew or believed rendered his expert opinions erroneous. It would also require proof that his sole or dominant purpose in dishonestly counselling or procuring Mr Tedeschi to prosecute the plaintiff was not to give honest evidence as an expert but to secure a conviction in order to promote himself as a forensic consultant and author and/or for pecuniary motives. The plaintiff would not, in my view, have made out that case in any event.

[64]

Det Insp Jacob's liability as a prosecutor by arresting the plaintiff and extraditing him to New South Wales

In the plaintiff's submissions in reply counsel did not abandon the submission originally advanced that in applying for the arrest warrant and then taking the necessary administrative and legal steps to initiate extradition proceedings, Det Insp Jacob played "an active role in the conduct of the criminal proceedings by instigating or setting them in motion (see A v NSW at [34]), and that he should be regarded as a prosecutor on that basis. This submission was maintained despite Det Insp Jacob's evidence that on 7 March 2006, on receipt of the oral advice from Ms Turner that it was Mr Tedeschi's view that the plaintiff's solicitor should be contacted to see if the plaintiff was prepared to return to Australia voluntarily, he drafted a proposal to State Crime Command proposing that the plaintiff be arrested in the United Kingdom and extradited to New South Wales, a proposal which was supported by the Commander, Homicide Squad State Crime Command, the Manager, Operations Coordination State Crime Command the same day, and confirmed by the Commander, State Crime Command a week later.
In the written proposal Det Insp Jacob set out his reasons as follows: I have given due consideration to the proposal from the ODPP especially considering its eminent source. Although I have no objections in principle to their proposal, I do have serious concerns that the likelihood of success is very much outweighed by the likelihood that this matter cannot be controlled under all of the circumstances and the NSW Police would be the subject of criticism. Once advised Gordon Wood could, - Refuse to return. - Simply flee the Jurisdiction travelling to another country. - Change his current residence within the UK. - Advise that It was not convenient for him to leave the UK at the moment for a variety of reasons. Even If the UK Metropolitan Police Service was prepared to provide us surveillance of Wood in the UK, at the time that Gordon Woods Solicitor is advised, how long should that surveillance continue? I propose that S/F Irondale should: - Respectfully advise the ODPP that although due consideration has been given to their proposal that S/F Irondale will pursue Woods arrest. - Continue their enquiries through the AFP in order to Identify the current location of Wood. - In cooperation with the ODPP and o Prepare the appropriate legal documents o Seek a Warrant In the 1st Instance for Wood. o Prepare the appropriate documents seeking cooperation from the UK authorities. o Seek the arrest and extradition of Wood to NSW Australia Once Wood is within this jurisdiction S/F Irondale would have no objection to him being granted conditional bail. [285]
In circumstances where this proposal was obviously accepted by Senior Command as the preferable course of action from the perspective of the officer in charge of what was a lengthy investigation, the defendant submitted it is artificial, in the extreme, for Det Insp Jacob to be held accountable as a prosecutor. The defendant emphasised that nothing was done by Det Insp Jacob prior to his application for an arrest warrant that could constitute a decision by him that the plaintiff should be charged or prosecuted for murder, or that he gave any advice or recommendation such as might result in a decision of that kind such as to make good the proposition that he effectively "set the proceedings in motion".
This was said to be in contrast with the position of Ms Paget-Cooke, a legal officer in the Legal and Compliance branch of the Department of Natural Resources in Bailey v Director General, Department of Natural Resources [2014] NSWSC 1012 where, for the reasons I gave at [272]-[290], I was satisfied that although regarding her as a prosecutor for the purposes of the tort of malicious prosecution was not free from doubt, her authorship of a prosecution memorandum for the attention of the Director-General, which included her recommendation that there was a sufficient legal and evidential basis to support Mr Bailey being charged criminally for the destruction of native vegetation, and her preparation of the matter for prosecution thereafter, could be characterised as her performing "an active role … in the conduct of proceedings … in setting the prosecution in motion", sufficient to constitute her as a prosecutor for the purposes of the tort.
Whilst Det Insp Jacob expressed an opinion in the Sufficiency of Evidence Report about the sufficiency of the evidence to support a prosecution, as he was clearly entitled to as the officer who had overall command of the homicide investigation, he did so from the perspective of an investigator, not a lawyer. Other than submitting the Sufficiency of Evidence Report to Operational Legal Support for the attention of Det Sgt Barry in order that he might consider the sufficiency of evidence for the offence of murder, and to recommend that the matter be forwarded to the Office of the Director of Public Prosecutions for the consideration of the Director in accordance with the Director's Prosecution Guidelines if he was of the view that was appropriate, the decision as to whether or not to ultimately initiate proceedings was at all times within the province of the Director's office, and at all times subject to the overarching discretion of Mr Tedeschi as the Senior Crown Prosecutor of New South Wales when furnishing the advice that Mr Cowdery requested of him.
I am not persuaded that by taking the administrative and legal steps on receipt of Mr Tedeschi's advice two years after submitting the Sufficiency of Evidence Report in order to ensure that the criminal proceedings were initiated without further delay (again, to emphasise, with the express approval of Senior Command) that Det Insp Jacob should be regarded as a prosecutor in the action the plaintiff brings for malicious prosecution.
In Bailey I expressed the importance of the plaintiff establishing the identity of a prosecutor against whom it is said he was prosecuted maliciously as follows: [284] In A's case the High Court was not concerned with a general enquiry into the identity of those to whom responsibility or accountability for the tort of malicious prosecution might be extended. This much is clear from what was said at [36]-[38]. What the Court did emphasise was that it is important to properly identify the prosecutor in proceedings brought to recover damages for the tort of malicious prosecution in order to ground and focus the critical enquiry into whether the plaintiff has proved that person (or, if more than one prosecutor, those people) acted maliciously and without reasonable and probable cause in initiating and maintaining the proceedings and, as the Court said at [38], in focusing attention upon those critical questions, whether those who "effectively set the proceedings in motion" acted tortiously. [285] At [38] the Court said: For the reasons explained by the House of Lords in Glinski v McIver [1962] AC 726, justice requires that the prosecutor, the person who effectively sets criminal proceedings in motion, accept the form of responsibility, or accountability, imposed by the tort of malicious prosecution. Insofar as one element of the tort concerns reasonable and probable cause, the question is not abstract or purely objective. The question is whether the prosecutor had reasonable and probable cause to do what he did; not whether, regardless of the prosecutor's knowledge or belief, there was reasonable and probable cause for a charge to be laid. The question involves both an objective and a subjective aspect.
The plaintiff's assertion in his submissions in reply that it was Det Insp Jacob who ultimately laid the murder charge, irrespective of the interposition of the advice of Mr Tedeschi and the further work that was done within the Director's office before that advice was furnished to Mr Cowdery, is not, in my view, conduct that in the circumstances of this case makes him accountable as a prosecutor for the tort of malicious prosecution. The flaw in the plaintiff's submission is exposed by positing the following scenario. Had the plaintiff been charged upon his voluntary return to the jurisdiction by another officer at the direction of State Crime Command, would that officer be liable as a prosecutor? Clearly, they would not. For the plaintiff to make his case against Det Insp Jacob in that scenario, it would follow that he would be a prosecutor at law by virtue only of his seniority as the officer in charge of the investigation between 1998 and 2004, and by reason of his authorship and submission of the Sufficiency of Evidence Report first to Legal Branch and then to the Office of the Director of Public Prosecutions in January 2004 for their consideration and advice. The plaintiff did not seek to make that case. Although Det Insp Jacob was the officer who sought the warrant for the plaintiff's arrest and executed it, that does not, in my view, render him liable as a prosecutor in the circumstances of this case, any more than it would make another senior police officer in Strike Force Irondale a prosecutor for the purposes of the tort of malicious prosecution if he or she were the officer that took that legal and administrative step.
I am fortified in that view given that after Det Insp Jacob was given clearance from Det Sgt Barry to submit the brief of evidence for the consideration of the Office of the Director of Public Prosecutions, his role was limited to responding to Mr Tedeschi's requisitions for further work to be done in preparation for the furnishing of advice to the Director, whatever the ultimate view of Mr Tedeschi might have been. My conclusion is fortified further still, there being no evidence that Det Insp Jacob's views as to whether and when a charge might be laid were solicited formally or even informally by Mr Tedeschi, and no evidence that he volunteered his view to officers within the ODPP at any time.
If the plaintiff's case that Det Insp Jacob should be regarded as a prosecutor depended solely upon his application for the issue of the arrest warrant and his initiation of the process of extradition which culminated in charging the plaintiff with murder on 3 May 2006, the plaintiff's lengthy submissions directed to establishing that he lacked a subjective belief in the sufficiency of the evidence to support a charge of murder at the time he submitted the Report (or at any time thereafter until the date of charge) would be otiose, as would be his submissions on the issue of malice. However, as I read the plaintiff's submission in reply, an alternate basis was advanced upon which accountability for the tort of malicious prosecution should be attributed to Det Insp Jacob.

[65]

The alternate basis upon which the plaintiff contends Det Insp Jacob is a prosecutor

The plaintiff submitted that the Court would also be satisfied that Det Insp Jacob falsified evidence or failed to disclose evidence both in the Sufficiency of Evidence Report, and in the second and subsequent reports of A/Prof Cross which he edited, intending by that conduct to deliberately mislead Mr Tedeschi, knowing the plaintiff would be charged with murder only in the event that Mr Tedeschi advised that a charge should be laid. The plaintiff submitted that if Det Insp Jacob were also shown to be complicit in the alleged deception being practised by A/Prof Cross upon Mr Tedeschi, his liability as a prosecutor would also be no different to that of A/Prof Cross.
Having concluded that the plaintiff has failed to establish any liability in A/Prof Cross as a prosecutor, the remaining question is whether the plaintiff has persuaded me that, independently of the actions of A/Prof Cross in his dealings with the police (including Det Insp Jacob), and independently of A/Prof Cross's dealing with Mr Tedeschi, Det Insp Jacob dishonestly procured Mr Tedeschi to prosecute the plaintiff, and that he did so in circumstances that satisfy the tests for proof against him that in doing so he initiated proceedings against the plaintiff maliciously and without reasonable and probable cause.
The question whether the plaintiff has established Det Insp Jacob acted dishonestly, intending by that conduct to counsel or procure Mr Tedeschi to recommend to the Director that charges be brought against the plaintiff, and the related question whether Mr Tedeschi relied on what the plaintiff submitted was the false or misleading information he provided in the Sufficiency of Evidence Report (and that he knew that A/Prof Cross was providing in his various reports), are the facts in issue on the alternate basis upon which Det Insp Jacob's liability as a prosecutor depends.
The plaintiff identified a number of interrelated bases on which the Court was invited to conclude that Det Insp Jacob was dishonest both in his dealings with Mr Tedeschi and in his evidence in these proceedings. The difficulty with the plaintiff's submissions generally as they relate to Det Insp Jacob as a prosecutor on this alternate basis (a difficulty that arises both in counsel's primary submissions and in the submissions in reply) is the failure to clearly differentiate between what is relied upon to establish Det Insp Jacob's alleged dishonesty in procuring the prosecution (the conduct which is said to constitute him as a prosecutor in accordance with the principles in Brain) and the conduct which is said to evidence a subjective want of reasonable and probable cause and malice in his conduct as a prosecutor were he found to have that status. While it may be that the same body of evidence might be relied upon to establish proof of both propositions, the undisciplined approach in the structure and content of the plaintiff's submissions to the different issues to which the evidence might give rise, in particular to the wide-ranging allegations of dishonesty attributed to Det Insp Jacob, are not readily discernible from the plaintiff's pleaded case against Det Insp Jacob. In addition, some of the more serious allegations were not put at all in accordance with the rule in Browne v Dunn.

[66]

The allegations that Det Insp Jacob acted dishonestly

The allegations of dishonesty and/or general mala fides in that category are contained in pars 16.21, 16.33 and 16.49. Other allegations of dishonesty and/or general mala fides for which the plaintiff contended are as follows: 1. Det Insp Jacob knew that A/Prof Cross's evidence (or proposed evidence, more accurately) was "worthless" and that Mr Tedeschi's advice based on A/Prof Cross's opinions were without evidentiary value; 2. Det Insp Jacob knew that A/Prof Cross was willing to provide whatever opinion would help prove that the plaintiff murdered Ms Byrne as supporting the inference that Det Insp Jacob was knowingly involved in the deception practised on Mr Tedeschi by A/Prof Cross; 3. Det Insp Jacob assisted and counselled A/Prof Cross as to how best to present his evidence and opinions and whether or not to conduct further experiments. He had editorial review over the first four Cross reports; 4. Det Insp Jacob encouraged A/Prof Cross to write his first report consistent with murder and inconsistent with suicide. Det Insp Jacob wanted to rely upon the location of Ms Byrne's body as evidence that made it less likely she had committed suicide; 5. Upon realising that A/Prof Cross may be able to give evidence to prove Ms Byrne was thrown to her death, Det Insp Jacob briefed him to conduct work "above and beyond" what had been requested in 1998, and in 25 September 2003 he deliberately tried to influence A/Prof Cross when he told him matters (that were mostly false) about the plaintiff; 6. In preparation of the Sufficiency of Evidence Report, Det Insp Jacob deliberately omitted any reference in the summary of A/Prof Cross's first report to the possibility that Ms Byrne jumped to her death so as to allow for the suggestion that she was thrown to her death or was running away from danger; 7. Det Insp Jacob was determined to obtain a conviction regardless of the evidence and at any cost; 8. The combination of pressure from Senior Command to complete the investigation to a point where it was referred to the Coroner or the Director of Public Prosecutions because "the police" did not want to have continued responsibility for the matter being unresolved, meant that Det Insp Jacob was "driven" to one outcome - proving the plaintiff murdered Ms Byrne; 9. Det Insp Jacob (deliberately) hid the discovery of the "point of impact issue" until March 2004 and lied in February 2007 and in his evidence at the committal as to the circumstances in which the point of impact issue was discovered. Mr Tedeschi was materially misled about the circumstances in which the point of impact issue was discovered and the associated unreliability about the appointment of the point of impact when he provided his advice to Mr Cowdery, a state of affairs that Det Insp Jacob was aware of, such that he knew he could not rely upon Mr Tedeschi's advice that the case warranted laying a charge of murder when he applied to arrest the plaintiff and have him extradited to New South Wales.
I have already dealt with the allegation of mala fides and dishonesty in (a), (b), (d), (e), (f) and (i) above in the course of considering whether the plaintiff has made out his case that A/Prof Cross should be regarded as a prosecutor (see [564]-[573]). I do not regard (c), (g) or (h) as supported by the evidence or as having any relevant bearing on whether Det Insp Jacob should be found to be a prosecutor consistent with the principles in Brain in any event.
Additional submissions were also directed to establishing Det Insp Jacob's status as a prosecutor by reason of what was said to be the provision of deliberately false, inadequate or misleading information in the Sufficiency of Evidence Report, knowing that it was to be submitted to the DPP for their consideration and intending by that information to mislead Mr Tedeschi. This information was said by the plaintiff to include: 1. His uncritical acceptance of the evidence from Mr Melbourne and Mr Martin, notwithstanding the effect of displacement; 2. His uncritical acceptance of the evidence of Mr Doherty, notwithstanding the obvious corruption of his evidence; 3. His uncritical reliance upon Ms Byrne's father despite his obvious agenda in having the plaintiff implicated in his daughter's murder; 4. His reliance on the plaintiff's various accounts as evidencing a consciousness of guilt without any regard to the effect of the passage of time on his differing recollections, or the fact that inconsistencies might not be probative of guilt; 5. His misrepresentation of the evidence concerning Ms Byrne's medical history.
In order to consider whether the matters in [587(a)-(e)] are made out, the plaintiff contends that it is necessary to analyse and review the content of the Sufficiency of Evidence Report and the three phases of the police investigation which were summarised in the Report.

[67]

Ms Byrne is reported as a missing person

At about 3:30am on 8 June 1995, Ms Byrne was reported to Rose Bay Police as a missing person by her father, Tony Byrne. The plaintiff attended at the police station with Mr Byrne and her brother, Peter Byrne. The plaintiff identified himself to police as Ms Byrne's boyfriend. The plaintiff told police that he had last seen Ms Byrne at about 1pm the previous afternoon at their apartment in Macleay Street, Potts Point, and that he had not seen or spoken to her since. He expressed fears that she may have committed suicide. He also told police that upon realising at about midnight (either 11:30am or 12:40pm depending on his later account to police) that Ms Byrne had not returned to their apartment, he went searching for her and, upon finding her locked car in Gap Road at Watsons Bay, he searched for her on the cliffs above the Gap but could not find her. He told police that after alerting her father and brother by public telephone from Watsons Bay to his concerns that she might have committed suicide, and after collecting them from The Connaught, an apartment block in the city where Tony Byrne lived, and then undertaking a further search of the Gap with their assistance, Ms Byrne could not be located.
After the missing person report to Rose Bay Police the plaintiff, together with Ms Byrne's father and her brother, returned to Watsons Bay with a number of general duties police officers to continue the search before the arrival of the Police Rescue Squad at about 4am.
The plaintiff made various assertions, first to Peter Byrne at the Gap before attending at the Rose Bay police station, and then later to officers of the Police Rescue Unit after they became involved in the search, that he thought he could see Ms Byrne's body at the base of the cliffs by reference to her clothing, in particular to her shoes.
Ms Byrne's body was eventually located at the base of the cliffs wedged head first into a crevice.
A search of the top of the cliff on both sides of the safety fence that separated the pedestrian walkway from the cliff edge by Rose Bay general duties police in the early morning of 8 June 1995 revealed nothing to indicate the place from which Ms Byrne left the cliffs or anything to suggest the mechanism by which she descended to her death.
No detectives were involved in the initial investigation. No Crime Scene Unit officers attended the scene and no police attended the post-mortem. Ms Byrne's car was searched at the scene, largely to determine whether a suicide note had been left. Her wallet, which the plaintiff claimed to have taken from her car when he found it in Gap Road, was not seized. Her car was not seized for forensic analysis. Additionally, there was no canvass of the local residents to determine whether anyone had seen or heard anything that might bear upon when and how Ms Byrne fell to her death. No statements were taken from the two fishermen who reported hearing a woman scream at about 11:30pm. The attempts Cst Woods made to locate the fishermen in the first phase of the investigation were unsuccessful. They did not come forward until the broadcast of the reconstruction of the finding of the body in May 1996.

[69]

The toxicological analysis

Evidence was also available to Det Insp Jacob in his preparation of the Sufficiency of Evidence Report and led at trial from a pharmacologist to the effect that although Rohypnol was detected in Ms Byrne's urine, there was no evidence of Rohypnol on blood analysis, whether in the form of the drug itself or the metabolite. [289] Mr William Allender, forensic scientist in medical chemistry, gave evidence to the effect that it was unlikely Ms Byrne had consumed Rohypnol the day prior to her death. When asked by Mr Tedeschi in re-examination how long before Ms Byrne's death she must have taken Rohypnol, Mr Allender answered "it would be well in excess of 25 hours". [290]
Evidence was also led from Prof Starmer, pharmacologist, by Mr Terracini. The following exchange occurred: Q. Well, in terms of concentration of this drug in the urine, are you able, based on your experience and expertise, to tell us approximately when the deceased would have taken Rohypnol? A. Very approximately. Q. Right? A. I would suggest that this pattern of findings suggests that it was taken some days before, some small number of days previously. [291]
Later, in cross-examination, Mr Tedeschi asked: Q. So if Caroline Byrne died at about, let's say, 11 or 11.30pm on a Wednesday night and at that time there was no Rohypnol in her blood that was detectable at all, right? A. Yes. Q. Do you agree that at about lunchtime on that day, some approximately 12 hours earlier, she could not have had enough Rohypnol in her blood to account for her being groggy, sleepy and uncommunicative? A. I don't think so. [292]
Having regard to the evidence of Prof Starmer and Mr Allender, Mr Tedeschi submitted that the plaintiff fabricated evidence that Ms Byrne was barely rousable when he returned home at lunchtime on 7 June 1995, and that he had given her one Rohypnol tablet on 7 June 1995.
Mr Tedeschi's closing submission in respect of Rohypnol was as follows: So, ladies and gentlemen, what do we have here? We have the accused describing going home at lunchtime and saying that Caroline was so groggy he could barely rouse her, and to some people, that he was giving her more of the Rohypnol and he goes into the bathroom and gets all concerned because there is Rohypnol missing. And yet we have the absolute uncontradicted evidence that she had a zero blood level for Rohypnol at the time of her death. The only conclusion that you can come to is that the Rohypnol story was invented by the accused. Why would he invent the Rohypnol story? We submit he invented it to enhance his fabricated suicide scenario. [293]

[71]

The first and second phases of the police investigation, including the further evidence adduced at the inquest

The initial police investigation was conducted by Cst Craig Woods, a general duties police officer attached to Rose Bay Police Station. He was appointed to that role after he arrived at the station on 8 June 1995 on the designated morning shift. Cst Woods prepared a coronial brief of evidence which was submitted to State Coroner, Mr Derrick Hand. Based on the information that he had assembled by that date, including information from the plaintiff and Ms Byrne's father, it was Cst Woods' opinion that Ms Byrne's death was suggestive of suicide. [296] Ms Byrne's father declined the offer of an inquest. He told police that he accepted that his daughter had taken her own life.
In addition to a statement from the plaintiff dated 12 June 1995 and a recorded interview with him dated 10 July 1995, the brief of evidence also included statements from Dr Cindy Pan (7 July 1995), Ms Carel Clifford (26 June 1995), Mr Lance Melbourne (9 July 1995), Mr Craig Martin (9 July 1995), Nicholas Samartis (12 July 1995) and Brett Cochrane (12 July 1995).
Cst Woods did not prepare a statement for inclusion in the coronial brief of evidence. A statement was taken from him on 19 August 1998 during the second phase of the investigation. In the course of being interviewed by police who were assisting Det Insp Wyver at that time, Cst Woods referred to the brief of evidence he had supplied to the Coroner to refresh his memory of the course of the investigation in its first phase, including the statement he obtained from the plaintiff on 12 June 1995 and a record of interview he conducted with him on 10 July 1995. [297] Cst Woods also referred to notes in his notebook when he first spoke to the plaintiff shortly after 6:55am at Rose Bay police station on 8 June 1995 for the purposes of completing the documentation necessary for the admission of Ms Byrne's body to the morgue, including the need for her body to be identified where the gross injuries to her face and head rendered visual identification impossible. Ms Byrne was formally identified from dental records provided by her father.

[72]

The plaintiff's first account of events to Cst Woods on 8 June 1995 and then on 12 June 1995

In Cst Woods' 1998 statement, he said that before a formal statement was taken from the plaintiff on 12 June 1995, the plaintiff told him that Ms Byrne had started a new job two weeks earlier and was not happy. The plaintiff also told him he had about five or six Rohypnol tablets in the bathroom (tablets that were prescribed to him) but there were none in the packet when he checked at around 1pm on 7 June 1995 when he arrived home to find Ms Byrne sleeping. Cst Woods also reported that during his discussions with the plaintiff sometime on 8 June 1995 he was told that Ms Byrne had been to see Dr Pan and that the plaintiff provided contact details for her. The plaintiff also told Cst Woods that he loved Ms Byrne and could not understand why she would have committed suicide. [298]
The plaintiff told Cst Woods in his statement of 12 June 1995 that despite Ms Byrne being, to his observation and in his experience of her as his partner, not a person who would harm herself, much less take her own life, he accepted that was what she had done: 14. Caroline was an extremely happy person always appearing to be enjoying life we shared everything together and were very happy together. Caroline talked to me about her problems but never mentioned to me that she would harm herself in anyway [n]or did I believe that she would ever take her own life. We planned a family in the future and marriage and we talked about it often. 15. I feel that an inquest into Caroline's death is not required as I don't want myself or the family to have to go through it. I accept the fact that Caroline took her own life and prefer that it not be a public matter. [299]
It was in the course of making enquiries of the plaintiff at the morgue on 8 June 1995 as to whether he knew what clothing or jewellery Ms Byrne might have been wearing, the plaintiff told Cst Woods that after driving Ms Byrne's father and brother home after they had abandoned the search for her, he went to their apartment and, on checking Ms Byrne's wardrobe, noticed that "black tights, a denim jacket and joggers" [300] were missing. Ms Byrne was confirmed on admission to the morgue to be wearing clothing of that description together with a blue sweat shirt and white tee shirt. This information was not conveyed to the plaintiff.
Cst Woods detailed the conversation in his statement of 19 August 1998 as follows: I can't remember the exact conversation due the passage of time but I do recall saying to WOOD words to the effect of, "Does she wear any jewellery and do you know what clothing was she wearing?" In response to this question he said words to the effect of, "I checked her wardrobe when I went home and the clothes missing were a pair of black tights, a denim jacket and joggers". When he told me this he seemed certain of what she was wearing. I couldn't understand how he was so certain of what she would of been wearing so I said to him words to the effect, "How do you know they would be the clothes she was wearing?" He said, "It's easy, I know everything about her. I know that she only had one pair of joggers, four pairs of tights and the one denim jacket." [301]
The plaintiff was asked by Mr Paul Barry in the "Witness" program in 1998 how he knew what Ms Byrne was wearing at the time of her death. They had the following exchange: Paul Barry: How the hell would you know what clothes she was wearing? Gordon Wood: I think it's also in the record that I went back to the apartment to find out when I got my mobile phone after I dropped her father and brother back I went to the apartment specifically to find out what she was wearing Paul Barry: I wouldn't be able to go back to my wardrobe and know what clothes I was wearing if I didn't already know. How the hell can you go back to her wardrobe and find out what's missing? Gordon Wood: Its, oh, very easy. Caroline only owned one denim jacket, she owned one pair of runners and she had two pairs of black tights. Simple. [302]
The plaintiff's claim to know what Ms Byrne was wearing (ostensibly from checking her wardrobe as the police search was progressing at the Gap) to support his claim to police that he thought he could identify her by that clothing when specialist search lights were shone on her body from the cliff top at the Gap was relied upon by Det Insp Jacob in the Sufficiency of Evidence Report in support of the following conclusion: Strike Force Irondale assert that Gordon Wood was aware of the clothing Caroline Byrne was wearing, as he was with her in the period leading to her death. Further that his later claims of recognising and identifying the clothing by checking their home, arose as he was heard by Sgt Powderly to claim, "There she is, that's what she was wearing." This was at The Gap at the point of her being found by the Mitralux light. The position of Strike Force Irondale on these issues: • That Gordon Wood was asked by Police to return home and identify the clothing worn by Caroline is a lie that comes within the scope of Edwards Case. • That Wood was capable of identifying the clothing of Caroline was wearing by examining her wardrobe is a lie that comes within the scope of Edwards Case. • That Wood was capable of identifying the clothing on Caroline at the point of first recovery and illumination by search light at The Gap at 4.40am 8/6/95 is a lie that comes within the scope of Edwards Case. [303]
The plaintiff's account of his movements on 7 and 8 June 1995, first to Cst Woods and then to other police officers in 1996 and 2001, were summarised in some detail in the Sufficiency of Evidence Report. Det Insp Jacob expressed the view that the plaintiff had falsely accounted for his movements at material times on both days and, by inference, that he had falsely denied any knowledge of the circumstances in which Ms Byrne died, a position maintained by the Crown when Mr Tedeschi opened the case to the jury.
Suffice to say the account the plaintiff gave first to Cst Woods on 12 June 1995 about the car he drove to look for Ms Byrne, where he got it from, and why he drove into the night to look for her at all before calling her brother and father or trying to call her mobile phone (neither of which he did according to the analysis of the phone services the plaintiff had access to in June 1995 and the analysis of Ms Byrne's mobile phone as set out in the Sufficiency of Evidence Report), together with the explanation the plaintiff gave for taking that approach when he was interviewed by police in 1996 and 2001 and again in the interview for the "Witness" program in 1998, was seen as significant in the Sufficiency of Evidence Report. It was later relied upon by the Crown at the plaintiff's trial as conduct probative of his guilt.
It was also an issue of significance in the way the Crown case was advanced at the plaintiff's trial that although the plaintiff knew that Ms Byrne invariably utilised the secure car park under the Connaught when visiting with her father, he did not check with the concierge at the security desk or place a call to Ms Byrne's father to see whether she was safely asleep in his apartment.
On 12 June 1995 the plaintiff gave police some documents he said he had found in Ms Byrne's wallet when he found her car parked at Watsons Bay, including receipts evidencing a banking transaction at 3:37pm on 7 June 1995 and a purchase of petrol and confectionary between 3:32 and 3:39pm. Both transactions occurred in the eastern suburbs. Nothing was done in the first phase of the investigation to see whether the petrol station attendant recalled the transaction nor, it appears, were efforts were made to identify the Westpac Bank in Vaucluse from where the $50 was withdrawn.
It was the Crown case at trial that because the plaintiff had access to Ms Byrne's credit cards and knew her PIN number, and because the banking receipt did not have the branch name of the Westpac bank from which the money was withdrawn but the plaintiff had told various people that Ms Byrne in fact withdrew money from the Vaucluse branch on the afternoon of 7 June 1995, either he made the withdrawal or was with Ms Byrne when she did. [304] This was said to be consistent with the Crown case that Ms Byrne was at Watsons Bay at 3pm when she was last seen by Mr Martin.

[73]

Mr Byrne's involvement in the investigation

Ms Byrne's father declined to be formally interviewed by Cst Woods in the first phase of the investigation. He also advised police that no member of his family, including his son Peter Byrne, wished to be interviewed. He did inform Cst Woods, however, that his wife had committed suicide in 1991 and that in 1992 his daughter had made an attempt on her life by consuming sleeping tablets in a bath resulting in her being hospitalised. Mr Byrne did not seek an inquest into the manner and cause of his daughter's death. He apparently accepted at that time that she had taken her own life.
Mr Byrne supplied police with three statements in the second phase of the investigation dated 24 May 1996, 9 August 1999 and 30 August 1999. By the time of the inquest he had disavowed any possibility that his daughter had committed suicide. He also wrote eight letters to police between January 1996 and November 1996 and participated in a video "run around" at the Gap in August 2003 in the third phase of the investigation. [305]
Det Insp Jacob summarised the effect of the information provided by Mr Byrne throughout the police investigation in the Sufficiency of Evidence Report.
Mr Tedeschi placed very considerable reliance on Mr Byrne's evidence at trial in discounting any reasonable possibility that Ms Byrne had committed suicide. Mr Tedeschi also relied upon his evidence to advance the submission that the plaintiff was motivated to kill Ms Byrne, in part because of her fading interest in him and, as a secondary motive (said to strengthen the motive relating to his fears that his relationship with Ms Byrne was at an end), a concern that she might disclose confidential information concerning the Offset Alpine printing company and the enquiry by the Australian Securities Commission into the affairs of that company which the plaintiff feared would damage his relationship with Mr Rivkin. One of the issues that presents in these proceedings is whether it was open to Mr Tedeschi to advance that submission. It is the plaintiff's case that it was not a submission fairly based on the evidence, or an inference that could be legitimately drawn from the evidence, but a submission based solely on smear and innuendo. This is said by the plaintiff to be a blatant contravention of Mr Tedeschi's obligations as a Crown Prosecutor and eloquent of his malice as a prosecutor. I will return to consider that submission later in these reasons.
Det Insp Jacob also referred to the issue of motive in the Sufficiency of Evidence Report, as to which he said: Strike Force Irondale have identified a constellation of issues occurring in the life of Caroline Byrne leading up to and during this period which we assert were the more likely cause of Caroline's perceived depression. It is the position of Strike Force Irondale that the combination of these issues has led to the development of arguments and problems between Gordon Wood and Caroline Byrne, a manifestation of which was the argument witnessed near The Gap about 8pm on the 7 June 1995. This argument we say was the culmination of these ongoing problems and the motive, which led to the murder of Caroline Byrne by Gordon Wood at that time. These issues include: - Caroline was too young to settle down. - Caroline was ambitious and career orientated. - Wood was not happy about Caroline undertaking full time employment. - Caroline not able to realise her potential by extending her modelling life. - Wood 'stalking' Caroline regularly over the phone and in person. - Caroline suspecting Wood was gay. - Caroline's concerns over links with the Rivkin Group. - Wood's progression in the Rivkin Group - expectations unrealised. - Wood's promises unfulfilled - huge bonuses. - Attending the Australian Securities and Investment Commission on 6/6/95. - Circumstances surrounding the purchase of the home unit they both occupied. - Wood travelling overseas with Rivkin. - Wood being on call for Rivkin. Strike Force Irondale assert that the motive behind arguments and disputes that led to the killing of Caroline Byrne are found in these issues. All of which were temporal to her death. We assert that the combination and cumulation [sic] of these issues had led to tension, disputes and arguments between the two of them and ultimately were the motive behind her death. [306]

[74]

The inquiry into Ms Byrne's mental health in the first phase of the investigation and how it was treated by investigators

Cst Woods took a statement from Dr Pan, Ms Byrne's general practitioner, on 7 July 1995, concerning her consultation with Ms Byrne on 5 June 1995 and her referral of Ms Byrne to Dr Sippe, psychiatrist. An appointment with Dr Sippe was scheduled for the afternoon of 7 June 1995. Ms Byrne did not attend that appointment. [307]
From her clinical notes, Dr Pan confirmed that Ms Byrne complained of feeling depressed for about four weeks but "more so" in the last week. Ms Byrne told Dr Pan that she had commenced a new role in her employment with June Dally-Watkins Pty Ltd (a modelling and deportment school) but was unable to say whether she liked the new role or not. She firmly denied any thoughts of self-harm. Dr Pan encouraged Ms Byrne to see a psychiatrist and, as noted above, an appointment was organised with Dr Sippe for 7 June at 4:45 pm. Dr Pan gave a further statement on 31 May 1996, in the second phase of the police investigation, and gave evidence at the coronial inquest on 24 November 1997. [308]
It will be necessary to consider the full complement of the evidence bearing upon Ms Byrne's mental health set out at length by Det Insp Jacob in the Sufficiency of Evidence Report, including Dr Pan's evidence at the inquest and the further investigations undertaken as the third phase of the investigation developed under Det Insp Jacob's command as the officer in charge.
It will also be necessary to consider the evidence available to Mr Tedeschi when he advised Mr Cowdery in February 2006 that a prosecution of the plaintiff for murder should be commenced and the evidence led at trial in the Crown case to discount what was accepted by the Crown was the reasonable possibility that her death was a result of suicide. It is the plaintiff's case that neither Det Insp Jacob nor Mr Tedeschi were in a position to refer to evidence (in the case of Det Insp Jacob) or to adduce evidence (in Mr Tedeschi's role as Crown Prosecutor) excluding suicide as a reasonably possible explanation for her death. The plaintiff also contends that Mr Tedeschi's failure to lead evidence of Ms Byrne's 1992 hospital admission after she overdosed on sleeping tablets was in dereliction of his duties as a prosecutor and evidence of malice. That submission will be addressed later.
Unsurprisingly, if for no other reason than the proximity of Ms Byrne's attendance on Dr Pan on 5 June 1995 and her death on 7 June 1995 after having failed to attend the scheduled appointment with Dr Sippe at 4:45pm on 7 June 1995, suicide was considered by Det Insp Jacob as an alternate hypothesis for her death. In concluding in the Sufficiency of Evidence Report that Ms Byrne's death was the result of a homicide, he reported his views that investigating police had eliminated any reasonable hypothesis of suicide (or accident or misadventure) and the reasons for so concluding. [309]
The plaintiff does not submit that the suicide hypothesis was not thoroughly investigated by police, at least in the sense that it was not suggested that evidence was available to support the reasonable possibility of suicide which was not considered by Det Insp Jacob or which was downplayed in the Sufficiency of Evidence Report or by other officers, including Cst Woods, who were involved at earlier points in time. In Cst Woods' statement of August 1998 (taken by Det Insp Wyver in the second phase of the investigation), he said that his belief that Ms Byrne had committed suicide (as he had reported in his statement to the Coroner) was based on the evidence then available to him, in particular the plaintiff's account that Ms Byrne was a person who suffered depression and who had attempted suicide in the past. Cst Woods went on to say in his August 1998 statement that although he suspected that suicide was not the explanation for Ms Byrne's death, particularly after speaking with Mr Melbourne and Mr Martin and their identification of Ms Byrne on the afternoon of 7 June 1995, his investigation failed to uncover any evidence which suggested that her death was the result of anything other than suicide. [310]
It was not suggested by Mr McClintock in his cross-examination of Det Insp Jacob or Mr Tedeschi that the vast number of witnesses who were interviewed by officers of Strike Force Irondale and who opined that in their experience of Ms Byrne and their exposure to her over the weeks and months prior to her death that she was unlikely to have taken her own life, were influenced by police (subtly or otherwise) to moderate their opinions in some improper way. Neither was it submitted that Det Insp Jacob's approach as an investigator to the question of suicide in the Sufficiency of Evidence Report, or his approach to that question in the course of Strike Force Irondale more generally, was flawed in some other respect. Rather, the submission is advanced that his ultimate belief that suicide had been excluded beyond reasonable doubt was not a view open to him.

[75]

The second phase of the police investigation

A second police investigation was initiated in May 1996 after the Coroner referred the matter to the South Region Major Crime Squad, Homicide Unit. Thereafter, Det Insp Wyver conducted further investigations in advance of the inquest which was convened between November 1997 and February 1998, by this time at Mr Byrne's request. These investigations called into question the assumption that Ms Byrne had committed suicide. Det Insp Wyver conducted a further interview with the plaintiff on 14 June 1996. [311]
A number of people gave evidence at the inquest, including the plaintiff. By the time of the inquest Ms Byrne's father changed his opinion as to the possibility of his daughter having committed suicide. The plaintiff remained firmly of the view that she had committed suicide. The plaintiff gave a detailed account in his evidence to the Coroner of what he claimed to know of Ms Byrne's previous suicide attempt (although they were not in a relationship at that time) and what he knew of her mental health in the days or weeks before her death. He also explained why he accepted the fact that Ms Byrne had taken her life. He expressed himself in the following way: Q: Can you give me any reason why Caroline Byrne would have take[n] her life? A: Well, the only, the only answers I have to that are - well, she was obviously not herself before she died, but I still would never have for a moment have thought she committed suicide. I suppose my answers that are I think the fact that she had tried it before, and that her mother did it, and that she, she - I think it was all to do with her mother, my view is. I understand she had tried it twice. I was only really consciously aware of one attempt, but her father told me about an attempt with tablets. I think that occurred around the time after - immediately after her mother died. I don't know; I can't place that in history. So I, I think I thought that was in reaction to her mother dying that she'd tried it, the same way I thought of doing it after she died. But then - no, from speaking to the psychiatrists that I saw, they - or the psychiatrists and the doctors - they said it's quite often the case where if a mother of father does it, something in the family can inherit a suicidal tendency. It's been described to me that Caroline's permanently happy and up state was a way of disguising her depressed, which she was in denial of ever having, and it just came out. Professor Penny said to me - 'cause I went and saw him once - he said to me that in this instance with people like Caroline he said you can rest assured that she would've done it at some point in her life. Not that it's any consolation, but she could've done it when you had two young kids or post-natal depression, something like that. He said it was inevitable. No just home; other - my doctor said it's inevitable that these people are going to do it at some time. I don't have an explanation for it. [312]

[76]

The evidence of Mr Martin and Mr Melbourne at the inquest

Evidence was also adduced at the inquest from Mr Melbourne and Mr Martin, each of whom had identified the plaintiff as one of two men they said they had seen with Ms Byrne at Watsons Bay on the afternoon of 7 June 1995 in statements they gave to Cst Woods on 9 July 1995 after Ms June Clifford (Ms Byrne's employer) informed Cst Woods that they were able to identify Ms Byrne from a photograph she had showed them. Their identification of Ms Byrne from a single photograph, and later their identification of the plaintiff as the man in Ms Byrne's company and the company of another man on the afternoon of 7 June 1995, also from a single photograph, formed part of what was relied upon by Det Insp Jacob in the Sufficiency of Evidence Report, and by the Crown at trial, as evidence that the plaintiff was with Ms Byrne at Watsons Bay on 7 June 1995.
The evidence of Mr Melbourne and Mr Martin at the inquest (inclusive of Mr Melbourne's identification of the plaintiff in the foyer of the Glebe Coroner's Court in November 1997 and Mr Martin's identification of him in the second tranche of the inquest in February 1998 as one of the two men they had seen in the company of Ms Byrne on the afternoon of 7 June 1995), together with the evidence of Mr Doherty (a witness who came forward after the inquest and after viewing the "Witness" program with information that he had seen and heard a woman and two men - one of whom he said was similar to the plaintiff - arguing over a period of hours on the evening of 7 June 1995), was also information relied upon, first by Det Insp Jacob in the Sufficiency of Evidence Report, and then by the Crown at trial as further evidence strongly probative of the plaintiff's guilt.
In his record of interview of 10 July 1995 Cst Woods raised with the plaintiff the suggestion that he had been seen in the Watsons Bay area with Ms Byrne and another man on the afternoon of 7 June 1995 as to which the plaintiff said he "wasn't with her then". [313] In the immediately preceding series of questions in that interview the plaintiff said he was at Ditto's restaurant at Darlinghurst that day between 1:15pm and 1:45pm with Mr Samartis and Mr Cochrane (he had previously told Sgt Woods that he had lunched at that restaurant but had not been specific as to the time or who he had been with) after which he went to Alife restaurant in Stanley Street, East Sydney, and "picked up [his] boss's lunch partner and took him to his office". [314] He said he then drove to Bondi where he ate lunch at the Lamrock Café after which he went home to see how Ms Byrne was and, finding her not at home, returned to work at about 4pm.
Mr Samartis and Mr Cochrane provided statements to Sgt Woods on 12 July 1995. Both gave evidence at the inquest in which they confirmed that they had lunch together at Ditto's Café on 7 June 1995 and, after they had ordered lunch, the plaintiff joined them shortly after midday. They said the plaintiff also ordered lunch but that he had received a phone call and left prior to eating. Mr Cochrane gave evidence that the plaintiff had been at the café for about 30 minutes before leaving. They each gave an account that the plaintiff said he had to pick up his boss. Neither of them had any further contact with the plaintiff that day.
In his evidence before the Coroner the plaintiff maintained the account he had given to police of last seeing Ms Byrne at their apartment in Potts Point at around 1pm on 7 June 1995, and having not seen her or spoken to her after that time. He also gave evidence that after leaving Ditto's Café he collected Mr Rivkin and former Senator Graham Richardson from Alife. He said he drove Mr Richardson into the city and then went to Bondi where he ate lunch. [315]
Mr Richardson and Mr Rivkin were interviewed by police in the third phase of the investigation. Statements were taken from Mr Richardson in February 2000 and October 2003. Mr Rivkin participated in a lengthy record of interview with Det Insp Jacob on 4 August 2000. [316] Mr Rivkin was deceased by the time of the plaintiff's trial in 2008. Mr Richardson gave evidence at the plaintiff's trial. Mr Rivkin's record of interview was tendered in the Crown case.
Their evidence, together with a range of other evidence relating to the plaintiff's movements on the afternoon and early evening of 7 June 1995, was initially assessed by Det Insp Jacob in the Sufficiency of Evidence Report as relevant to the question whether the so-called alibi evidence operated to contradict the accounts given by Mr Melbourne and Mr Martin of seeing the plaintiff at Watsons Bay on the afternoon of 7 June 1995 or whether it corroborated the plaintiff's account to police (an account from which he has never resiled) that he was not at Watsons Bay during the afternoon of 7 June 1995 with Ms Byrne because he was elsewhere attending to various work-related tasks.

[77]

The Coroner's findings

At the conclusion of the second tranche of the inquest on 12 February 1998, notably on the occasion when Mr Martin gave evidence of having identified the plaintiff on his approach to the Glebe Coroner's Court as one of the two men he saw in Ms Byrne's company at Watsons Bay on 7 June 1995, the Coroner published his findings in which he concluded: Caroline Therese Byrne died on or about 7 June, 1995 at Watsons Bay, of multiple injuries sustained when she impacted with the rocks below 'The Gap'. As to how she came to impact with those rocks the evidence adduced does not enable me to say. [317]
In the Coroner's findings, including what he described as "one glaring inconsistency" [318] in the account given by the plaintiff, namely, how he managed to see Ms Byrne's footwear having regard to the prevailing conditions on the night with what the Coroner described as a "barely operating torch", [319] he said that by far the most telling inconsistency was the conflict between the plaintiff's evidence and the evidence of Mr Martin and Mr Melbourne. He regarded that evidence as evidence of identification which he did not consider was contaminated as a result of the two witnesses having "got their heads together". [320] He went on to say that although both witnesses gave evidence of their sighting on either Tuesday 6 June or Wednesday 7 June 1995, he was satisfied from independent evidence that it must have been on 7 June, not only because Ms Byrne's car was seen by them later that evening and again the following morning, but because Ms Byrne was at work at Parklea on 6 June 1995. [321]
In essence, the Coroner regarded the identification of the plaintiff at the Coroner's Court as an identification of a man who was a stranger to both Mr Martin and Mr Melbourne, although it must fairly be said that the Coroner also considered their identification of Adam Leigh as the second person seen in the afternoon of 7 June 1995 with the plaintiff and Ms Byrne as evidence of similar weight when, as became obvious in the course of the third phase of the investigation and as accepted by the Crown Prosecutor at trial, that identification was a misidentification. [322]
On the same date that the Coroner entered an open finding into the manner and course of Ms Byrne's death, he directed Det Insp Wyver to continue investigations into the circumstances surrounding her death. This became what I have referred to as the second phase of the police investigation.
Thereafter, extensive publicity focused on the police investigation into the circumstances in which Ms Byrne died. Of particular significance, for a number of reasons, was the Channel 7 "Witness" program which broadcast a segment relating to Ms Byrne's death in 1998. The plaintiff cooperated in the production of the program. He was interviewed by Paul Barry, journalist and presenter, as part of the broadcast.
As noted earlier, Mr Doherty approached police after viewing the "Witness" program with what was considered by police to be evidence of another potential sighting of what may have been Ms Byrne and the plaintiff with another man at Watsons Bay on 7 June 1995, this time from about 8pm for some hours. [323]
On 9 April 1998 Detective Insp Wyver interviewed Mr Doherty and took a detailed statement from him. [324] Police were already in possession of information (from Mr Melbourne) that Ms Byrne's white Suzuki Vitara was parked in Gap Road at the time Mr Doherty made his observations, the car having been in that same location for some hours.
The various sightings of the Suzuki Vitara parked in Gap Road on the late afternoon and then late in the evening of 7 June 1995 in the same location where it was seen by Ms Byrne's father and brother when they arrived in the early hours of the morning of 8 June 1995 was a matter upon which Det Insp Jacob placed very considerable reliance in the Sufficiency of Evidence Report, as Mr Tedeschi did at the plaintiff's trial. Mr Tedeschi submitted to the jury in his closing address that since the Suzuki Vitara was at Watsons Bay on 7 June 1995, Ms Byrne must also have been there. He went on to submit that it was "an amazing coincidence" [325] that Ms Byrne should be seen by witnesses (Messrs Melbourne and Martin) with a man who, quite independent of them later identifying the plaintiff at the inquest in November 1997, was one of the two men described by them to police in June 1995 in a way that closely fitted the plaintiff's appearance at that time.

[78]

Strike Force Irondale is initiated and the third phase of the investigation commences

The Coroner was informed of the additional information from Mr Doherty and on 30 April 1998 Det Insp Jacob met with the Coroner. Having regard to that information, together with a number of matters that had been outstanding both during and after the inquest, the Coroner requested that the Homicide and Serious Violent Crime Agency conduct further investigations into Ms Byrne's death. It was this request which resulted in the initiation of Strike Force Irondale under the command of Det Insp Jacob. [326]
Thereafter, albeit intermittently, 39 successive Crime Agencies Progress Reports were furnished by Det Insp Jacob to Senior Command between 1 July 1998 and 30 November 2003. [327] These reports charted the course of the investigation, progressively identifying matters that either remained outstanding or required follow-up, and the nature of the lines of continuing enquiry and the outcome of those enquiries. A number of witnesses who had provided statements prior to the inquest were re-interviewed and a range of fresh statements taken from a large number of additional witnesses.
Strike Force Irondale sought a Coroner's Court order on 24 September 1998 for production of all material generated during the production of the "Witness" program. The full complement of videotape interviews was produced. They were the subject of assessment in the Sufficiency of Evidence Report. Excerpts of the interview with Mr Barry were tendered in the plaintiff's trial.
Although at the time Det Insp Jacob furnished the Sufficiency of Evidence Report to the ODPP in January 2004 some statements were said by him to be outstanding (notably, his express reference to the fact that A/Prof Cross's first report dated 19 November 2003 was not included as A/Prof Cross was attempting to appoint, with greater certainty, the point from which Ms Byrne left the cliff top), he represented that the Report, and the accompanying brief of evidence, indexed in six volumes, constituted the full complement of the materials generated through all phases of the police investigation.
It will be necessary to refer at some length to the form and content of the Report, representing, as it does, both Det Insp Jacob's assessment of the evidence available to investigators upon which advice was sought as to its sufficiency to support a charge of murder, and the evidence Mr Tedeschi had available to him in the course of preparing for and ultimately furnishing his advice to Mr Cowdery that a charge of murder should be brought.

[79]

The plaintiff's further various accounts to police and the way they were analysed

On 23 July 2001 the plaintiff participated in a further interview with Det Insp Jacob in which he repeated his account of his movements and what he knew of Ms Byrne's movements in the days leading up to her death and on that day, including a detailed account of what he did when he woke to find that she was not at their home; what he did before he arrived at the Gap to find her parked car in Gap Road; what he did upon finding her car; and what he said and did thereafter, including his participation during the extensive search that ultimately led to her body being located. [328]
For the purposes of these proceedings the defendant prepared a detailed summary of the plaintiff's various accounts of these events to police in 1995, 1996 and 2011, to the Coroner in his evidence at the inquest in November 1997 and to the media. That summary was annexed as Schedule D to its final submissions. The Schedule also sets out what the plaintiff said to police, the Coroner and the media about his knowledge of Ms Byrne's previous suicide attempts and her depression, including what he knew of her referral to a psychiatrist by her treating doctor two days before her death; whether he had any reason to believe she may have taken her own life; and why he accepted that she had committed suicide by throwing herself from the cliff top at Watsons Bay.
This material was also the subject of a detailed analysis and comment in the Sufficiency of Evidence Report, it being Det Insp Jacob's view that as the investigation progressed, the plaintiff "changed, altered or denied previous versions on various significant issues so that they were more reasonable and palatable". [329] In his closing address, Mr Tedeschi invited the jury to draw the same conclusion using, by way of example, what he submitted was the plaintiff's attempts over time to advance a more reasoned explanation for his claim to have seen Ms Byrne's feet and ankles from the top of the cliff in the location where she was ultimately found at the base of the Gap at a time when the darkness and prevailing weather conditions, including heavy mist at the base of the cliff, prevented anyone, including the police using specialist light sources, from seeing the base of the cliffs from the cliff edge, much less discerning the form of a body in the rocks. The fact that the plaintiff had made these claims was relied upon by the Crown at trial (as it was by Det Insp Jacob in the Sufficiency of Evidence Report) as a source of esoteric knowledge that could only be explained because the plaintiff was with Ms Byrne when she descended to her death. It was described by Mr Tedeschi in his address as the "bottom line", [330] "an irrefutable point" [331] and "killer point". [332]
In these proceedings it is the plaintiff's case that Mr Tedeschi deliberately misstated the evidence in support of that submission and that in the process he constructed a fiction in order to advance the Crown case. This was said to be eloquent evidence of his malice as a prosecutor. I will deal with that submission later.
In the Sufficiency of Evidence Report Det Insp Jacob went on to contend that, coupled with significant inconsistencies between the plaintiff's accounts to police, the plaintiff had made statements about a range of matters which were deliberate lies told with a consciousness of guilt and fear of the truth within the scope of Edwards v R (1993) 178 CLR 193); [1993] HCA 63. The various lies falling within the scope of the "Edwards Case" (so-called), coupled with other inconsistencies in the plaintiff's various accounts which Det Insp Jacob identified and highlighted throughout the body of the Report, were an important feature of what Det Insp Jacob concluded was a "cogent circumstantial prima facie case" [333] against the plaintiff for Ms Byrne's murder.
The plaintiff's various accounts to the police and to others concerning his movements and his observations of Ms Byrne on 7 June 1995; the circumstances in which he claimed to be at the Gap in the early morning of 8 June 1995 within an hour of the fishermen hearing the woman's scream, and how he conducted himself during the search for Ms Byrne at that location both before and after the involvement of the police, were also matters amongst a range of matters arising from the plaintiff's accounts of his movements and his dealings with Ms Byrne and others that were given significant weight by Det Insp Jacob in support of his conclusion that the brief of evidence, taken as a whole, supported a charge of murder.
The detail of the plaintiff's successive accounts to police and the media from 1995 to 2011 concerning relevant events before 7 June 1995 on that day and into the early hours of the following day, and in the days and weeks that followed her death, were also given prominence by Mr Tedeschi in submitting to the jury that they would reject the plaintiff's case that he had no knowledge of the circumstances in which Ms Byrne died. Although Mr Tedeschi's advice to the Director was not in evidence in the proceedings, privilege having been claimed over its contents, it is reasonable to assume Mr Tedeschi also relied upon this same body of material in rendering his advice to the Director that the prosecution of the plaintiff for murder was warranted and that a charge should be laid given Mr Tedeschi's wholesale adoption in his submissions to the jury of many of the criticisms of the plaintiff's various accounts that had been analysed and commented upon by Det Insp Jacob in the Sufficiency of Evidence Report, many of which Det Insp Jacob described as lies told from a consciousness of guilt.
Of particular significance in making out the Crown case were what were said by Mr Tedeschi to be the plaintiff's repeated lies about his whereabouts on the afternoon of 7 June 1995 and later that evening between 8pm and 11:30pm, and what was said to be the utter incredulity of his explanation for being at Watsons Bay and locating Ms Byrne's car at midnight, being in part led to that area by "Caroline's spirit". [334]
It was fundamental to the Crown case that upon the whole of the evidence adduced at trial the jury would reject the plaintiff's account that he lunched alone at a Bondi café at 4pm after his earlier lunch arrangements at Ditto's restaurant were interrupted by Mr Rivkin requiring him to drive Mr Richardson into the city, and that they would also reject his account that he was asleep alone in front of the television at the Macleay Street apartment between about 7pm and midnight after having arrived home from work to find Ms Byrne not at home. Instead the jury were invited to find (as Det Insp Jacob had concluded in the Sufficiency of Evidence Report) that the plaintiff was with Ms Byrne at Watsons Bay in the afternoon between 1pm and 3pm (as observed by Messrs Melbourne and Martin) and then again later that evening from at least 8pm (as observed by Mr Doherty) before he threw her from the cliffs to her death at about 11:30pm.
Related to what Mr Tedeschi submitted were the plaintiff's lies about his movements on the afternoon and evening of 7 June 1995 was Mr Tedeschi's allied submission that the plaintiff staged the claim to Ms Byrne's father and brother that Ms Byrne was missing, and falsified the report of Ms Byrne as a missing person to Rose Bay police later that morning. Further, Mr Tedeschi submitted that the plaintiff falsely asserted a belief that Ms Byrne had committed suicide by masquerading as a concerned partner during the search at the Gap under police supervision. Mr Tedeschi also invited the jury to reject the plaintiff's claims to the police, and to various of his friends and Ms Byrne's friends, that he loved her and grieved for her believing she had taken her own life, by advancing the further submission that the plaintiff was in truth a possessive and psychologically abusive partner who was motivated to kill Ms Byrne having learnt that she was intending to leave him.
None of what the Crown submitted were lies told by the plaintiff were left to the jury by the trial judge as evidence from which they could infer a consciousness of guilt. His Honour directed the jury in accordance with Zoneff v The Queen (2000) 200 CLR 234; [2000] HCA 28 that any lies the jury considered the plaintiff had told could only be used by them to assess the truthfulness of the accounts given by the plaintiff. His Honour gave the following direction: If you find that the accused told a lie on any occasion, you can, if you wish, use that finding in assessing his truthfulness on other occasions. But I give you this warning: do not reason that just because the accused told a lie about something that is evidence of his guilt. It is not. So, if you do find that the accused told a lie, you can use it in assessing his truthfulness, not only on the occasion on which he told the lie, but on other occasions on which he has given an account of things. [335]
So far as these proceedings are concerned, his Honour's directions are not under review. What is relevant insofar as the liability of Det Insp Jacob as a prosecutor is concerned (assuming that status is to be attributed to him as a matter of law) is the extent to which he relied upon what he considered (from a non-legal perspective) were the plaintiff's deliberate lies told from a consciousness of guilt in support of his concluded view that the evidence supported a prosecution of the plaintiff for murder, and whether that was an approach fairly open to him.
It is not known the extent to which Mr Tedeschi considered that it was open to him to rely upon consciousness of guilt lies when he advised Mr Cowdery that criminal proceedings for murder should be instituted. I note that in his maintenance of the case to verdict in his closing submissions, only two lies were isolated by him as capable of being considered by the jury as lies told from the consciousness of guilt, neither of which were ultimately left by the trial judge to the jury for their use in that way. [336]
That said, it is obvious from the content of the Sufficiency of Evidence Report and the evidence of both Det Insp Jacob and Mr Tedeschi in these proceedings that what they considered were capable of being proved to be lies figured prominently in the judgment made by each of them to initiate the criminal proceedings against the plaintiff. With differing degrees of emphasis both in Det Insp Jacob's and Mr Tedeschi's evidence in these proceedings, both in their sworn statements and in cross-examination, they depose to genuinely having the belief, having regard to all the evidence, that the plaintiff had told deliberate lies about his movements on 7 June 1995, his knowledge of Ms Byrne's movements on that day and the circumstances in which he came to be at the Gap after midnight allegedly looking for Ms Byrne. One of the fields of enquiry necessarily engaged in these proceedings is whether I accept their evidence and, further, even were I to do so, whether assessed objectively, that was a conclusion reasonably open to them. If it were not, that is, if those aspects of the plaintiff's account alleged to be lies were not susceptible to being considered by a prosecutor to have been deliberate falsehoods because the explanation for his conduct and his account of his movements was not only reasonably possible but demonstrably so, then that may assist the plaintiff in establishing that he was prosecuted in the absence of reasonable and probable cause. It must follow that the inverse is also true.
However, even were I satisfied that it was open to each of the two putative prosecutors to regard the plaintiff's accounts of his movements during the afternoon of 7 June 1995, and his conduct upon finding Ms Byrne missing later that night as so untenable as to amount to lies, it does not follow that would be fatal to the plaintiff's case were the evidence as to the manner and cause of Ms Byrne's death such that suicide could not be positively discounted as a reasonable possibility or if the manner of her death was not susceptible to proof as a homicide on the case the Crown advanced.
There can be no doubt that the Crown case, as it was left to the jury, depended heavily on the jury being persuaded that the plaintiff's account to police and others as to his knowledge of Ms Byrne's whereabouts on 7 June 1995 was not credible. In his closing address, Mr Tedeschi spent considerable time developing the submission that the jury would readily conclude that the plaintiff had told deliberate lies about various aspects of the events of 7 June 1995. He summarised those submissions in the following way: Ladies and gentlemen, yesterday I was addressing you about the lies which the accused has told about various aspects of his story concerning the events of 7 June 1995: The lies about Rohypnol; the false alibi in relation to Graham Richardson ; what we said was a lie about coming home and falling asleep for four and a half hours for some unknown reason ; having his mobile phone off at the time, not being woken up by his beeper; his story about when he woke up and the version that he gave to the police that it was 12.30 or 12.40, which means that there's at least an hour and a half completely unanswered for; the fact that when he says he woke up and he, for some unknown reason , he walked nine blocks to get a car, the only car that was available to him at a car park which wasn't monitored electronically; then, why he would end up at The Gap and why he would go to places where they had been for picnics; his token search, perhaps momentary search, at The Gap for the first time; the fact that he abandoned the search to go and pick up Tony and Peter when he could just as easily have asked them to come and continued searching, if he was really concerned about this girlfriend of his who was perhaps sitting on a rock contemplating suicide. Of course, on Monday I referred you to the fact that by the time Tony and Peter came, he knew exactly where her body was and indicated that to Peter. They then went to the police station. In all of that time, he made no calls to his home to see if she was there, he made no calls to the voice mail on his own mobile phone to see if she had left a message, assuming that it was true that the battery was flat. [337]
The plaintiff submitted through his counsel in these proceedings that despite some inconsistencies in the various accounts he has given from the night of Ms Byrne's death to the last interview with police in 2011, a fair analysis of his accounts over of a period of years renders it broadly consistent and that the criticisms made by Det Insp Jacob and Mr Tedeschi (and by the defendant in its submissions referable to Schedule D attached to the defendant's submissions in these proceedings) are not sustainable.
Mr McClintock submitted that even were the Court to find that it was possible that the plaintiff had not given a complete account of his movements and those of Ms Byrne on 7 June 1995, or that his conduct during the police search for her body on 8 June 1995 raises suspicions as to the extent of his knowledge as to how she died, a prudent and cautious prosecutor would not use a bare suspicion of guilt, and even less a suspect's failure to reveal to police all that he or she may know about the matters leading to a person's death, as a substitute for evidence sufficient to initiate criminal proceedings for murder.

[80]

The Sufficiency of Evidence Report - the culmination of the third phase of the investigation

As noted above, the third phase of the investigation under the rubric Strike Force Irondale commenced on 18 June 1998. In the Executive Summary to the Sufficiency of Evidence Report, Det Insp Jacob considered that although the investigation into the death of Ms Byrne had been conducted in broken phases between June 1998 and January 2004, it was nonetheless a "conscientious, concerted and extensive investigation" balanced out against the competing demands of Crime Agencies Command.
The methodology which Det Insp Jacob adopted in the presentation of the Report was to refer to all materials generated during the first two phases of the investigation and the inquest, together with the information gathered during the course of Strike Force Irondale, in order to provide an overview of the entire investigation. The Executive Summary stipulated that the Report included reference to evidence of all relevant witnesses but with only salient portions of their evidence highlighted referable to the most significant issues as he saw them.
The structure of the Sufficiency of Evidence Report was to identify the facts and circumstances leading to and surrounding Ms Byrne's death (some facts were not in contention whilst others plainly were), accompanied by an analysis of that material to support what Det Insp Jacob considered, from his perspective as the officer in charge of the investigation, to be a strong prima facie case to support the presentation of an indictment against the plaintiff for murder.
In the Executive Summary, Det Insp Jacob identified particular sections of the Report in addressing the hypothesis that Ms Byrne committed suicide, including a detailed examination of her background and the events preceding her death, including a detailed chronology of the events of Wednesday 7 June and Thursday 8 June 1995, at least to the extent that the events of those two days were able to be reliably reconstructed. In that connection reference was made to Telephone Analyst Charts and Telephone Timeline Charts for the period 5 to 8 June 1995, together with the recorded interviews with the plaintiff and other relevant witnesses, including a "run around" with Mr Byrne's father and her brother on 7 August 2003 at the Gap. A further document which was annexed to the Report and described as a Comparison Report was also identified. This report examined the various statements the plaintiff made to police, the Coroner, his associates and the media over the course of the investigation.
Reference was also made to the evidence of A/Prof Cross. The first reference to any engagement of A/Prof Cross as an expert consultant during the currency of Strike Force Irondale appears in the Crime Agency Progress Reports (Ex 98). In the second of 48 progress reports signed by Det Insp Jacob, one of the proposed actions following the compilation of aerial photographs of the Watsons Bay area was to brief an expert "to re-examine the probability or not of the deceased falling to her death by accident", a task which was to occur the following week.
Successive Crime Agency reports between 12 April 1999 and 23 March 2003 did not refer further to the proposed involvement of A/Prof Cross. That is not to say that Strike Force Irondale was not proceeding with other enquiries despite it being noted in the reports that operational pressures and operational management decisions relating to the deployment of resources had seriously impacted upon the capacity of the Strike Force to fulfil its own prioritised list of further enquiries and follow-up enquiries.
It was not until the thirteenth report (for the period ending 12 March 1999) that the question of briefing an expert was revisited, and only then in the context of Sgt Jubelin reporting that investigators had utilised the resources of the Photogrammetry Unit to map out the measurements of the Gap and that accurate measurements of the distance from the cliff face to where Ms Byrne's body was located had been obtained. (I note that these measurements were taken referable to what became known as Hole B.) In the entry Det Insp Jacob went on to note that: One of the issues that arose during the Coronial Inquest was the distance the deceased was located from the cliff face. The measurements obtained from the Photogrammetry Unit will assist with the examination to be carried out by Doctor [sic] Rodney CROSS of the Department of Physics Sydney University. The purpose of the examination is to determine the velocity BYRNE left the cliff face in order to land in the position she did. [338]
It was put to Det Insp Jacob in cross-examination that by the end of 1999 the investigation by Strike Force Irondale had, apart from a number of peripheral issues, been completed, but that final completion had been obstructed and delayed because of resourcing issues. Det Insp Jacob disagreed. Although he accepted that there were competing priorities within State Crime Command during the currency of Strike Force Irondale, he said the investigation into Ms Byrne's death continued for some years after 1999, inclusive of a lengthy interview with the plaintiff in July 2001. It was then put to him that the timing of that interview also reflected that the investigation was (by that date) "virtually complete". [339] Again, Det Insp Jacob disagreed. He gave evidence that with the additional commitment of resources, particularly in 2003, the Strike Force was able to reinitiate enquiries and that considerable work was done throughout what he described as "the 2003 period". He gave evidence that between 2001 and 2003 there were competing command issues and that it was necessary to "deprioritise" the investigation into Ms Byrne's murder and attend to other priorities from time to time. He gave evidence that he was always subject to the directions of Senior Command in the allocation of resources, including the prioritisation of resources of one investigation over another. When asked if it was his decision or the decision at Senior Command level which resulted in a lacuna in the investigation between July 2001 and early 2003, he said: Well, I'm not sure whether it was two years and there may have been bits and pieces done throughout that period because that was my mission to try and do what I could when I could, however, there is no question that we were reallocated to priority, high priority jobs that were occurring within the command. The command doesn't have the luxury of not accepting briefs, murders happen and we get deployed. [340]
In cross-examination he maintained the firm position that in 2001, after the plaintiff was interviewed, he could not comfortably proceed to any concluded assessment of whether the evidence supported the plaintiff being charged with murder, absent finalising a number of outstanding enquiries.
It would appear that an approach to A/Prof Cross was amongst those outstanding issues and, as has already been demonstrated from the detailed summary on Det Insp Jacob's engagement with A/Prof Cross, that line of enquiry continued through to Det Insp Jacob's submission of the Sufficiency of Evidence Report, first to Legal Branch in January 2004 and then to the ODPP, an engagement which extended thereafter into the early part of 2006 when a decision was made by the ODPP to charge the plaintiff with murder following Mr Tedeschi's advice to Mr Cowdery that that should occur.
On 16 January 2003, Det Insp Jacob requested permission from Senior Command to execute a "Supplementary Investigation Plan" to renew efforts to bring the investigation to a point of finality. The plan made two references to A/Prof Cross: One aspect is outstanding, involves the distance Ms BYRNE was found from the base of the cliff, where preliminary expert opinion was sought (to be completed) … Obtain expert opinion (partially completed) from Professor Cross, Physics Department, Sydney University - re distance from cliff. [341]
On 12 March 2003, Commander Morgan requested information in relation to a number of issues identified in the Supplementary Investigation Plan, including the resources that might need to be dedicated to addressing each of those listed matters, and an indication as to when the investigation and an "assessment as to the sufficiency of the evidence for a prosecution or otherwise will be completed". [342]
Included amongst the matters to be attended to, and which were reported upon as underway in the following progress report, was the preparation of an ISRAPS three dimensional image of the Gap, which Det Snr Cst Tim Mealing was to obtain with the assistance of the Police Rescue Squad.
In the progress report for the period ending 4 May 2003 the following entry is made: Draft report of Professor Cross, Physics Dept Sydney University has been completed. Further to this, and as a result of liaison with the Professor, Strike Force Irondale members assisted him in certain controlled video recorded experiments on 22/10/2003 and on 31/10/2003. This involved certain logistical planning, including suitable location, safety equipment and Video Unit attendance. These were conducted to identify the range of launch speeds (in metres per second) possible when either one or two males throw a person of similar weight to Caroline Byrne. Although these experiments were successful Professor Cross is seeking to complete some further limited experiments using a mannequin as there were limitations to where our volunteer could be held during this process. Further tests were carried out using a dummy on Friday 31/10/2003. During his work Professor Cross identified an irregularity with the photogrammetry plan completed in 1996. As a result and with the assistance of Sen Const Streetfield that irregularity was corrected. Additional plans have been completed and collected by Irondale. [343]
It would appear, having regard to the evidence in the proceedings from Det Insp Jacob, A/Prof Cross and others, that this entry reflects work done after contact was reinitiated with A/Prof Cross in September 2003. There is no explanation in the evidence for why the entry appears in a progress report of May 2003.
A list of outstanding jobs to be completed by Strike Force Irondale as at 30 August 2003 (apparently requested by Senior Command in seeking an update on the progress on the investigation) included the following entry: Professor Cross - consulted on the distance Caroline Byrne was found from the base of the cliff. Was not a priority as initial report from the professor was that it was consistent with the distance she fell. [344]
In the progress report for the period ending 26 September 2003, the following was reported: Liaison with Professor Rod Cross of the Physics Department, Sydney University (initially was only to consider the issue of the distance Caroline Byrne was located out from the cliff top and provide a report relating to this). [345]
In the final progress report for the period ending 30 November 2003, Det Insp Jacob reported as follows: Professor Cross conducted 1 further experiment on the 7/11/03 which required logistical planning including suitable location, together with further liaison with the Sen Constable Streetfield (photogrammetry plan) re incline of platform area at the Gap. • On the 19/11/03, Irondale met with Professor Cross for ½ day re his draft final report. • On 21/11/03 his final report was received. (Additionally Professor Cross has supplied us with a number of photographs together with a Power Point presentation on his findings). • This aspect of the investigation is NOW COMPLETED. [346]

[81]

The period in Ms Byrne's life from 1989 to 1994

One of the issues the subject of detailed attention by Strike Force Irondale was what was known about Ms Byrne from about 1989 through to her death in 1995 that might shed light on her death. Underpinning that analysis, Det Insp Jacob reported that on the basis of his interviews with her work colleagues and family friends she was consistently described as: [V]ery compassionate, intelligent, motivated, decent, caring woman with high morals and standards, a strong commitment to her family and high work ethics. [347]
What follows is a summary of what was set out in much greater detail in the Report.
In 1989 Ms Byrne began a modelling career with Gordon Charles Modelling Agency. [348] In 1991 she commenced teaching part time with June Dally-Watkins, having been introduced to that organisation by Mr Charles, the proprietor of the modelling agency. [349]
In March 1991, Ms Byrne's mother committed suicide by taking an overdose of prescription tablets after complications that resulted from cosmetic surgery. Mrs Byrne's death had a profound impact upon all members of her family, including Ms Byrne, her youngest daughter. [350]
In January 1992 Ms Byrne met the plaintiff at a city gymnasium. A friendship developed. Ms Byrne was in an intimate relationship with Andrew Blanchette at that time which continued throughout 1992. [351]
On 27 April 1992, Ms Byrne took an overdose of prescription sleeping tablets. She was living with her father and her sister at that time. She was found by her father, conscious, in a half-full bath when he returned home to have lunch with her. Ms Byrne had just completed her university studies and it was not unusual for her to be home during the day. [352] Mr Byrne contacted triple-0 and Ms Byrne was transported to Sydney Hospital by ambulance. When her father arrived a couple of hours later she apologised to him and, according to a statement taken from Mr Byrne in December 1999, she told him: Daddy I didn't want to do myself any harm. This will never happen again I was just feeling down over mum. [353]
Mr Byrne also told police that later that day Ms Byrne said to him and to her brother and sister: If I ever feel like that again, I'll come to you and tell you all about it, no matter what's troubling me. I'll talk about it openly to all of you. [354]
Following her admission to hospital Ms Byrne was referred to Dr Alexandra Vrjosseck, a consultant psychiatrist. In the referral letter, the referring doctor indicated: Not suicidal, nor any signs of organic depression, regrets her actions. However still upset and Dr Garrick would like you to see her. [355]
Ms Byrne met with Dr Vrjosseck on seven occasions between 29 April 1992 and 27 July 1992. [356] In Dr Vrjosseck's report (also obtained by Strike Force Irondale in December 1999) she said as follows: We met on a total of 7 occasions with Ms Byrne describing a gradual improvement in her mental state, whilst re calling past experiences. She described her busy ongoing activities in modelling and her positive plans for enrolling in University courses. She expressed remorse at her suicide gesture and denied any further suicidal thoughts or ideas. [357]
On her last consultation with Dr Vrjosseck in July 1992, Ms Byrne was reportedly formulating plans for her future with the support of her family. [358]
In December 1992 Ms Byrne commenced a relationship with the plaintiff and took up residence with him in an apartment in Potts Point shortly thereafter. [359] The plaintiff told police in his 1996 interview that within three weeks he asked Ms Byrne to marry him, and she agreed. [360]
In September 1993 the plaintiff and Ms Byrne had a "break" in their relationship for approximately three months, during which time Ms Byrne had a relationship with Adam Baczynski. She reportedly told her father that she saw no future with the plaintiff. He reported that she said: "He doesn't work. He just lays in bed until lunch time every day". [361]
While the plaintiff's relationship with Ms Byrne was in abeyance, the plaintiff commenced to work as a driver for Mr Rivkin.
In November 1993 Ms Byrne ended her relationship with Mr Baczynski and resumed her relationship with the plaintiff.
On Christmas Day 1993 the plaintiff took a telephone call from Mr Rivkin, after which he reported to Ms Byrne, and those of her family who were enjoying Christmas dinner that Mr Rivkin's "printing factory" [362] had been destroyed by fire and that it was necessary for the plaintiff to collect Mr Rivkin from Sydney Kingsford Smith Airport. Mr Byrne also attributed to the plaintiff knowledge that the fire at the printing factory "was a set up" [363] and that the increase in the share price was attributable to the insurance company paying out on an insurance policy.
That information was derived from Mr Byrne's statement to Strike Force Irondale in October 1999, as was much of the information available to the investigation concerning the plaintiff's relationship with Mr Rivkin, including the plaintiff's claims that Mr Rivkin was intending to pay him "huge bonuses", apparently consistent with the way Mr Rivkin had benefitted George Freris, another person he employed. According to Mr Byrne, his daughter had told him the plaintiff was jealous of the attention that was being lavished on Mr Freris by Mr Rivkin, the plaintiff having had the expectation that he would be treated in a similar way and that he was disappointed he was not. [364]
From September 1994, arrangements were in place for Ms Byrne and the plaintiff to purchase a home unit with the financial support of her father, on condition that he acquire a registered first mortgage over the property. Unbeknownst to Mr Byrne, Mr Rivkin was also contributing towards the purchase of the unit (at least as represented by the plaintiff) which was the source of tension between Mr Byrne and his daughter, on the one hand, and the plaintiff and Mr Rivkin on the other hand as to who would have priority as registered mortgagee on the certificate of title. [365]

[82]

January 1995 to the week commencing Monday 4 June 1995

Between January 1995 and March 1995 Ms Byrne visited the Gap with a classmate, Ms Whelan. She told Ms Whelan that the Gap was a place where she and the plaintiff went for picnics. [366] Ms Whelan also recalled an occasion when she was upset because of a breakup with her boyfriend. When they were close to the fence looking out to the ocean, Ms Byrne said to her that if she was thinking about suicide, "it was not the answer … there is always someone [you] can talk to". [367]
In April 1995, Mr Byrne told investigators that Ms Byrne had telephoned him to discuss what she described as the pressure the plaintiff was applying to encourage her to marry him. Mr Byrne said his daughter said: I'm telling him I love him and there's nobody else, I just don't want to marry yet, it's making Gordon uncertain and unhappy and to a small degree affecting our relationship. [368]
She reported that the plaintiff wanted her to stay home (that is, not work) and that he would financially support her. She was adamant that she did not want to cease work and that she was "very happy with [her] life the way it is". [369]
On 7 May 1995 the plaintiff accompanied Mr Rivkin to Zurich and London, returning to Australia on 27 May 1995. [370]
Earlier that month Ms Byrne discussed with her father a forthcoming business trip to Armidale and Tamworth and her excitement at the prospect of the assignment. It was during this period that Mr Byrne told police that, to his observation, everything in his daughter's life appeared to be going well. He said: There was nothing in her demeanour or conversations that we regularly had between us to indicate otherwise. There was nothing said to me during that full time employment which indicated that she was not entirely happy with her work. If there had of [sic] been I would have expected her to discuss the matter with me as she had done in the past. [371]
On 25 May 1995, Ms Carel Clifford raised with Ms Byrne the prospects of her filling a vacant position as School Course Consultant. The following day Ms Byrne accepted that appointment. [372]
Four days later on 29 May 1995, Ms Byrne told Ms June Clifford that she was excited about taking up the full-time position as School Course Consultant with its assured income, acknowledging that her modelling engagements would not sustain her in the long term, and that an increased income was important because she and the plaintiff had just moved into a new apartment. [373]
Ms Clifford expressed surprise to hear from the plaintiff after Ms Byrne's death that Caroline "hated her job and that the job had contributed to her becoming depressed". [374] She said: There was nothing said to me by Caroline or any other person which would indicate anything other then [sic] the opposite was the case. [375]
Ms Clifford went on to express surprise at why Ms Byrne would have committed suicide. She said: Caroline immediately prior to her death appeared to be a girl that [sic] had everything. [376]
Ms Byrne commenced full-time employment with June Dally-Watkins Pty Ltd as a School Course Consultant on 30 May 1995. [377]
On 31 May 1995, the plaintiff and Mr Rivkin were served with a notice requiring them to attend at the Australian Securities Commission on 6 June 1995. [378] The inquiry by the Australian Securities Commission related to what was suspected to be an irregular share buyback in Offset Alpine Ltd (Mr Rivkin's printing company) in December 1994 and February 1995. Mr Rivkin was a major shareholder of Offset Alpine and exercised dominant control over the company. [379]
The service of the notice and the scheduled examination was identified by Det Insp Jacob as one of what he described as "a constellation of issues" [380] occurring in Ms Byrne's life leading up to her death and, in his view, the likely cause of her reported feelings of depression. The extent to which that issue spawned a broader alleged concern that Ms Byrne may be in possession of information about Mr Rivkin which the plaintiff was concerned might adversely impact upon his relationship with Mr Rivkin if it were disclosed was not addressed or developed by Det Insp Jacob in the Sufficiency of Evidence Report. It did, however, form part of what the Crown relied upon at the plaintiff's trial as motivating the plaintiff to kill Ms Byrne. As noted already, it is part of the plaintiff's case, in these proceedings, that it was not open to Mr Tedeschi to advance that submission, or indeed the related and more florid submission that the plaintiff had "insider trading information" that he had informed Ms Byrne (amongst others) about and that Mr Rivkin would have been horrified to learn were he told about it.
I am conscious that it was the view of the Court of Criminal Appeal that the Crown case on motive, as it related generally to Mr Rivkin and his commercial activities, was "a speculative smear", [381] the Court having held that: The exploitation of public rumour and the use of mere innuendo to compensate for inadequate evidence of motive is not consistent with the obligations of a prosecutor to press the Crown case "to its legitimate strength" by reliance upon credible evidence. [382]
As I have sought to emphasise, while I am conscious of the views of the Court of Criminal Appeal in respect of a range of matters the subject of detailed consideration in that Court upholding the various grounds of appeal, I am not bound by them since it is incumbent on this Court to also give consideration to Mr Tedeschi's evidence where he maintained his right to advance the submission that the plaintiff was motivated to kill Ms Byrne, including by reason of the plaintiff's relationship with Mr Rivkin, a position the defendant submitted was entirely defensible.
The further question is whether I am satisfied, despite Mr Tedeschi's evidence to the contrary, that he knew he had an insufficient factual foundation to invite inferences to be drawn to support the submission on motive he advanced. Were I to come to that conclusion, that would unquestionably amount to prosecutorial misconduct (consistent with the finding of the Court of Criminal Appeal), thereby advancing the plaintiff's case that he was prosecuted by Mr Tedeschi maliciously and without reasonable and probable cause. I will return to consider that question.

[83]

The week before Ms Byrne's death

On Wednesday 31 May 1995, Mr Byrne shared with his daughter his concerns about his son Peter, who was in China, not having made contact with the family for some time. Ms Byrne was with her father on that occasion because Mr Byrne had required her to execute a number of documents, the effect of which was to secure Ms Byrne's financial future. Under that arrangement she was permitted to access funds at any time. [383]
Mr Byrne said that although his daughter looked "marvellous", [384] she complained of a head cold for which she was taking medication. She told her father that she was missing modelling. He suggested that she should talk to the modelling agency about resuming a casual modelling arrangement with them whilst retaining her work with June Dally-Watkins. This was coincident with a conversation Ms Byrne had with others where she indicated she was happy with her new career prospects but her primary enjoyment was full-time modelling. Her friends attested to her showing no indication to them that she was depressed. [385]
On Friday 2 June 1995, Ms Byrne spoke to her father who reported that after talking to her modelling agent, Mr Charles, she was advised "not to close the door" [386] on her modelling career and that there was contractual work that he could find for her. She expressed relief to her father that she had resolved the conflict and that she would inform Ms Clifford that she wanted to revert to casual work in order to maintain her modelling career. Later that day she told her father that she had not managed to make contact with Ms Clifford, but that she would fulfil her forthcoming work assignments and inform Ms Clifford of her decision when she (Ms Byrne) was next in the office on Thursday, 8 June 2018. [387]
On Saturday 3 June 1995, Ms Byrne worked and was reported by a colleague as being in good spirits for someone with a cold. She also said she was enjoying her new position at the June Dally-Watkins school and was looking forward to her assignments the following week. [388] She spoke to two of her friends that day, neither of whom reported any indication that she appeared upset, although they said she sounded tired.
On the evening of 3 June 1995, Ms Byrne, the plaintiff and the plaintiff's sister had dinner with the plaintiff's mother where it was reported by them that Ms Byrne was chatty and engaging in conversations about her pending school assignments. [389]
On Monday 5 June 1995, Ms Byrne was relieved of work duties because she had worked the previous Saturday and because she was due to attend a professional engagement at Pymble Ladies College that evening. She spoke to her father that morning and reported to him that she was feeling "a lot better" [390] after having had a restful Sunday. She also told her father she had been trying to contact her brother who she learned had arrived safely in Australia, but that he had not answered his telephone. She was informed by her father that he had not returned her calls because he was "jet lagged". [391]
At 10am on 5 June, Ms Byrne attended Dr Pan's surgery on self-referral. In short, Dr Pan referred her to Dr Sippe the following day which did not suit Ms Byrne because of work commitments, so an arrangement was made for an appointment on 7 June at 4:45pm. Dr Pan offered a medical certificate to relieve Ms Byrne of her work commitments, which Ms Byrne declined. [392]
At 3pm that day, Ms Byrne called her father for help in providing her with directions to her assignment at Parklea the following day. She did not report to her father that she had seen Dr Pan that morning, or that she had been referred to a psychiatrist. She discussed generally the ongoing issue of how to maintain her modelling career and her work for Ms Clifford. In that conversation she reaffirmed her commitment to telling Ms Clifford that she saw a future with the June Dally-Watkins school but wanted to maintain her modelling in the interim. [393] She told her father: I know I've done the right thing. Tell Pete I'm going to be busy for the next two days, Tuesday and Wednesday and I'm looking forward to seeing him on Wednesday evening. [394]
This was the last occasion that Mr Byrne spoke to his daughter.
At 5pm, Ms Carel Clifford saw Ms Byrne at the office in the process of her collecting display equipment for use that evening. Ms Clifford took the opportunity to give Ms Byrne a pay cheque. She observed that Ms Byrne "looked great" but was not "smiley and chatty" which Ms Clifford attributed to her cold. [395]
Between 6pm and 9pm, Ms Byrne attended a Career Market at Pymble Ladies' College on behalf of June Dally-Watkins as a Course Consultant. [396]
At 9am the same day Mr Wood and Mr Rivkin appeared at the Australian Securities Commission. [397]
On Tuesday 6 June 1995, Ms Byrne commenced work at 9am, the first day of a three day course at Parklea. A colleague with whom she worked that day said that she "seemed to love the work that she was doing" [398] and did not seem to be doing things any differently from when he had spoken with her four days earlier. [399] Ms Byrne completed her work at Parklea at 2pm. [400]
At 3:39pm Ms Byrne used a debit card at a petrol station in Rose Bay. [401] She failed to attend a modelling appointment at 5pm that afternoon, having failed to contact or inform the modelling agency that she would not be in attendance. [402]
At 7:26pm Ms Byrne's mobile phone was used to place a call to her home telephone number, followed by a call to the plaintiff's mobile telephone number. At 7:49pm Ms Byrne's mobile telephone was used to place a further call to her home telephone number. [403]
At 8pm the plaintiff contacted Ms Clifford by telephone and informed her that Ms Byrne was unwell and would not be at work the following day. The plaintiff told police that Ms Byrne asked him to ask a doctor friend for a medical certificate but the doctor "couldn't do it". [404] At 8:30pm the plaintiff placed a further telephone call to Carel Clifford, leaving a message on Ms Clifford's answering machine advising that Ms Byrne was sick and would not be returning to work. [405]
At 9:10pm Ms Clifford placed a telephone call to the plaintiff to enquire about Ms Byrne's health. The plaintiff informed her that Ms Byrne was going to see a specialist the following day and that he would advise her of the outcome. [406] Ms Byrne did not speak to Ms Clifford, and Ms Clifford gave no evidence of being aware that Ms Byrne was within earshot of the telephone conversations she had with the plaintiff.
The plaintiff told police that from that evening through to the following morning Ms Byrne was very "clingy", [407] that they discussed taking a trip the following week and that she was pleased at the prospect, and that he instructed her not to answer the phone or take any calls the following day.

[85]

The plaintiff's account of his movements on 7 June 1995 and the accounts of others as to that issue

The plaintiff told police he left for work on the morning of 7 June 1995 after kissing Ms Byrne on the forehead and saying that he would see her at lunchtime. [408] It seems that there is no evidence as to what his duties were that morning.
Independent of the plaintiff's account to police of his movements throughout the day, the following is supported by statements from various witnesses: 1. The plaintiff was at Ditto's Restaurant at Darlinghurst from about 1:15pm for about 30 minutes, having arranged to meet Ms Samartis and Mr Cochrane for lunch. [409] He left without eating, having apparently received a telephone call from Ms Byrne. [410] 2. He attended at Ultimo "at some point between 1:00pm and 3:00pm" [411] to deliver a wedding present for a friend. 3. He collected one of Mr Rivkin's lunching companions from Alife restaurant in Stanley Street in East Sydney and drove them into the city. [412] The plaintiff identified that person as Graham Richardson. [413] While there is evidence that Mr Rivkin ate at the Alife restaurant that day - there being a record of the same on his American Express card - Mr Richardson's diary indicates that he ate lunch at a restaurant in a city hotel with another person. The person with whom he lunched had an expense account which identified a lunch at that restaurant on that date. [414]
At about 1pm, on the plaintiff's account, he returned home to find Ms Byrne asleep in bed. She woke but declined lunch, and said she wanted to keep sleeping. [415]
At about 1pm, Mr Martin and Mr Melbourne were at the Gap Restaurant at Watsons Bay (a business owned and operated by them) when they saw three people who they later describe and identified as Ms Byrne, the plaintiff, and another man in Robertson Park. [416]
Between 2:30pm and 3pm, the plaintiff says that he lunched at the Lamrock Café at Bondi. [417] There were no records to confirm that occurred. [418]
At about 3pm, Mr Melbourne saw the same three people in the vicinity of Clovelly and Military Road and Watsons Bay. [419]
At 3:09pm, the plaintiff's mobile telephone placed a call to City Golf. [420]
At 3:32pm, Ms Byrne's Westpac Debit card was used to purchase petrol and a confectionary at the Caltex Service Station, Oxford St, Darlinghurst. Thirteen minutes later the same debit card is used to withdraw $50 from a Westpac Bank ATM at Vaucluse. [421]
At 3:37pm, a telephone call was placed from the plaintiff's mobile telephone to Mr Rivkin's home telephone. [422]
At 3:56pm, the plaintiff placed a call to Patterson Downes Pty Limited Accountants. [423]
At about 4pm, Mr Peter Byrne telephoned Ms Byrne and left a message on the home answering machine for her to contact him at their father's home at The Connaught. [424] In the view of the investigators, that message was significant for two reasons: first, Peter Byrne had not been in contact with his family whilst travelling to China which had given rise to some concern for his welfare. He returned from China some days earlier and Ms Byrne was reportedly looking forward to meeting up with him that evening. [425] She did not respond to the answering machine message. Secondly, the message was left on the answering machine at the apartment such that if the plaintiff had listened to it he would have concluded that Ms Byrne might well have been visiting with her brother and he may not have taken the step of borrowing a car to search for her at the Gap when he said he woke at midnight and she was not at home. [426]
Mr Byrne gave an account that on the morning of 8 June 1995, the plaintiff told him that he had received Peter Byrne's message when he got home from work. [427] When interviewed in 2001, the plaintiff claims to have had no recollection of having received any message and said he rarely checks his telephone answering machine. [428]
At 4:04pm, the plaintiff used his mobile telephone to call Mr Rivkin's office. [429]
At 4:30pm, Ms Byrne failed to attend her appointment with Dr Sippe as arranged by Dr Pan, or to make contact with either of them. [430]
At 5:14pm, a message was diverted from the plaintiff's mobile telephone to his pager from Mr Rivkin requesting that he and Gary Redding attend at "The Sanctuary" - an apartment in Crown Street, East Sydney (it would appear that George Freris was also in attendance). [431] At 5:24pm the plaintiff called a telephone registered to the Rivkin Group but used by Mr Redding. [432] Mr Rivkin gave evidence that at about 5:30pm the plaintiff arrived at "The Sanctuary" responsive to his direction. [433]
Between 5pm and 6pm, Mr Melbourne saw a green two-door Bentley driving north through Watsons Bay, [434] identified as a Bentley Continental R by Mr Martin, who also saw the vehicle. [435] Mr Martin identified himself as a "car buff". [436] Det Insp Jacob also emphasised in the Sufficiency of Evidence Report that whilst initially this vehicle was believed to belong to Mr Rivkin (as he owned a "green Bentley"), this was positively discounted in the course of further investigation by Strike Force Irondale because Mr Rivkin owned a distinctive four-door Bentley. [437] (At trial this remained in contention. The way Mr Tedeschi dealt with it in addresses was one of the particulars alleged by the plaintiff to constitute malice, as to which see later at [927]).
At 5:48pm, the plaintiff's mobile telephone made contact with another mobile telephone used by Mr Rivkin or his associates. [438]
In the Sufficiency of Evidence Report, Det Insp Jacob accepted that the phone records indicated that the plaintiff was likely to have conveyed Mr Redding to "The Sanctuary" in response to the pager message he received from Mr Rivkin at 5:14pm. [439] He emphasised that investigators did not rely on these telephone calls in furtherance of the case against the plaintiff. [440] He noted, however, that the plaintiff did not use his mobile telephone after 5:48pm on 7 June 1995 until 4:44am the following day. [441] Det Insp Jacob emphasised that upon arriving home from work to find Ms Byrne not at home, the plaintiff did not attempt to locate her on her mobile telephone and when he woke to find Ms Byrne not at home he did not use his mobile phone, neither did he use it whilst allegedly searching for her.
At about 6pm, Mr Martin and Mr Melbourne saw Ms Byrne's car parked in Gap Lane behind the Gap Restaurant. [442] There is no evidence as to how long it had been parked in that location.
Between 6:30pm and 8pm, Mr Byrne attempted to contact Ms Byrne on her mobile telephone, and the plaintiff on his mobile telephone. Neither telephone was answered. Mr Byrne also telephoned their apartment and, although the answering machine "cut in", he did not leave a message. [443]
At 6:45pm, the plaintiff arrived home to find Ms Byrne not at home. He told police he then fell asleep sometime before the end of the 7pm ABC news broadcast [444] and did not wake again until either 11:30pm or 12:40am to find that Ms Byrne had not returned home. [445]
At 7:40pm, the plaintiff's pager service received a message to "please phone Damien [Rivkin] at home". [446] The plaintiff did not respond to that request.
At about 8pm, Mr Doherty, whose apartment overlooked Military Road, observed three people on the roadway beneath his window after his attention was drawn by a girl's voice which he described as "obviously distressed". [447] When he first observed the girl, she was in the middle of the road. One of the two men with her walked toward her after which she sat in the gutter. Mr Doherty could not make out any of the words which were being exchanged between the girl and that man, but he did form the view that the conversation was heated and the two people were "quite obviously arguing". [448]
At 8:33pm, Mr Rivkin sent the plaintiff a pager message. The plaintiff did not respond to that message. [449]
Between about 8:30pm and 9:30pm, Mr Doherty saw the same three people walking towards the Gap. The third man, who had earlier been sitting distant on a brick fence, was standing on one side of the girl and the man she was arguing with on her other side. [450]
At about 10:30pm, Mr Doherty heard what he regarded as a continuation of the argument he had witnessed underneath his window, which he said then continued "on and off" [451] for about an hour. He described the area of the Gap where this argument was issuing from as "near the pathway to the Simon University". [452]
At about 10:30pm, two fishermen, Mr Wano and Mr Brunetta, parked their car in Gap Lane. They noticed Ms Byrne's parked car. [453] At about 11pm Mr Melbourne saw her car parked in the same position as he had earlier seen it parked that evening. [454]
At about 11:30pm Mr Doherty heard a scream, [455] largely coincident with the time Mr Wano and Mr Brunetta also heard a scream. [456]
Mr Wano described the scream as having a "scared tone" [457] and "last[ing] for a couple of seconds". [458] He described the scream as "so unusual" that he asked Mr Brunetta "what was that?". [459] Mr Brunetta described the scream as having gone "for a few seconds", [460] and "sound[ing] like she was panicking and in trouble". [461] As to the area from which the scream originated, Mr Brunetta said: The scream sounded like it had come from an area to the north, on the cliff above where we were fishing. It sounded like it was about 100 to 150 metres away from us. The area I believe the scream came from was in the same direction of where the girl's body was later found. [462]
The plaintiff told police that upon waking at his apartment to find Ms Byrne not at home (he appoints various times between 11:30pm and 12:40am when that occurred [463] ) he went in search of her, ultimately arriving at Watsons Bay where, after seeing her car parked in Gap Lane, he went searching for her along the cliffs. [464]
About an hour after hearing the scream, Mr Brunetta heard a male voice screaming out "Caroline, Caroline" [465] and soon after saw the plaintiff approaching them asking whether they had seen her. Mr Brunetta did not mention having heard the scream. [466]
Between 12:30am and 1:30am, Mr Peter Byrne received a telephone call from the plaintiff that Ms Byrne was missing and that he had found her car at the Gap. The plaintiff said he would collect them from their home. [467] Shortly after 1:30am, Mr Brunetta and Mr Wano saw the three men approach them. It was then that they reported having heard the scream. [468]

[86]

The twelve issues Det Insp Jacob focused upon in the Sufficiency of Evidence Report

What follows is a summary of the detailed analysis given by Det Insp Jacob to a number of discrete issues emerging from the chronology of events set out above. In the Sufficiency of Evidence Report they are considered under a number of subheadings, as follows: 1. Ms Byrne's movements and the plaintiff's movements on the afternoon and evening of 7 June 1995; [469] 2. The plaintiff's movements after 6:30pm and the plaintiff sleeping through to 11:30pm/12:40am; [470] 3. The plaintiff leaves a note for Ms Byrne prior to leaving to "search" for her; [471] 4. The plaintiff collects a car to "search" for Ms Byrne via The Connaught Apartments; [472] 5. The plaintiff searches for Ms Byrne; [473] 6. The plaintiff is drawn to the Gap by spiritual communications; [474] 7. The plaintiff locates the Suzuki Vitara in Gap Lane; [475] 8. The plaintiff contacts Tony and Peter Byrne and their attendance at the Gap; [476] 9. The examination of the Suzuki Vitara; [477] 10. The search of the Gap before the involvement of police; [478] 11. The "sighting" of Ms Byrne by the plaintiff before the arrival of police; [479] 12. The "sightings" of Ms Byrne after the arrival of police.
The content under each subheading was the subject of considerable focus in the way the Crown case was structured. Mr Tedeschi's treatment of some of them was the subject of criticism on the appeal and some are said in these proceedings to be evidence of malice. For example, (11) and (12) above, which became styled by Mr Tedeschi at trial as "the killer point" [480] were said by the plaintiff to include material misstatements of the evidence of the plaintiff's purported sightings of Ms Byrne at the base of the cliff. The plaintiff also contends that Mr Tedeschi deliberately misstated the effect of the evidence as the circumstances in which the plaintiff collected the red utility to search for Ms Byrne (subheading (4) above). Considerable criticism is levelled both at Det Insp Jacob and at Mr Tedeschi for the weight they gave to the identification evidence considered in (1) above. I have already referred to the significance of this evidence to prove beyond reasonable doubt the plaintiff's presence at the Gap at the time of Ms Byrne's fatal descent.
It is useful at this time to expand upon that evidence since it was in the form of a summary of the identification evidence which follows, that it was presented and considered by Det Insp Jacob and, it must be assumed, considered and assessed by Mr Tedeschi when he advised Mr Cowdery that a prosecution be commenced. It is not the plaintiff's case that this evidence was materially different from the way the evidence fell in the course of the trial. It is the plaintiff's case that the identification evidence was flawed from the outset.

[88]

Mr Melbourne's first statement

In his statement of 9 July 1995, Mr Melbourne described noticing a "tall attractive girl, blonde hair, wearing a blue denim jacket which came to her hips and a pair of full-length tights" [485] standing on the top of the pathway to Robertson Park at Watsons Bay. He said she was "very striking in appearance" and "looked like a model". [486] He said he wondered what she was doing "hanging around with the two guys". He described one of the men as "tall, slim build, had medium length fair hair and he was wearing a brown coloured suede type of jacket". The other male was described as having "dark long hair, of thin build, of dark complexion" [487] wearing black clothing and long black boots. Mr Melbourne said the three people were laughing and enjoying themselves. He said two hours later he saw the same three people as they stood around the corner of Clovelly and Military roads for a short time. He said they appeared to be in good spirits.
In his statement of 9 July 1995, Mr Martin described noticing a young blonde girl approximately 20 years old with long blonde hair walking across Military Road, Watsons Bay, towards Robinson Park in the company of two men. He described the woman as wearing a blue denim jacket with light tights. He said one of the men with the woman was short with a thin build and dark hair, in his mid-20s wearing a black leather jacket that looked too big for him. He described the other person as "probably" 6'2 or 6'3'' in height with "reddish or light coloured hair", of slight build, "Australian appearance" [488] and wearing a dark anorak style jacket.
It was clear from the statements of Mr Martin and Mr Melbourne of 9 July 1995 (even if it was not made patent in Cst Woods' July 1995 statement to the Coroner) that in taking their statements Cst Woods showed each of them a single photograph of Ms Byrne. It was also clear that they told him that they had already been shown a different single photograph of the same woman who "looked similar" to the woman they had seen in the park.
At par 5 of Mr Martin's statement he said: A number of weeks later whilst I was working at the Bad Dog Café a group of ladies were eating at the café. During the time that they were there I spoke with them and they showed me a photograph of a friend of theirs that they told me had died recently, I looked at the photograph and believe that it could of been the same lady that I had seen walking with the two men through the park. At 11am on the 9 July 1995 I attended Rose Bay Police Station where I spoke with a Constable Woods who showed me a photograph of a young lady who I recognise as the girl who I saw walking across the road with the two males I described. [489]
At par 4 of Mr Melbourne's July statement he said: A couple of weeks later I was at the Bad Dog café and a group of ladies were eating there and they were discussing a friend that they said had recently died. They showed both myself and Craig Martin a photograph of their friend and I thought that it look liked the girl we had seen walking with the two males in the park a couple of weeks earlier. About 11.20am on Sunday the 9th of July, 1995 I attended the Rose Bay Police Station where I was shown a picture of a young female by Constable Woods and Sweeney. This female in the picture looks very similar to the female I refer to walking through the park with the males earlier in this statement. [490]
However, neither Mr Martin nor Mr Melbourne made any mention in their statements to Cst Woods of 9 July 1995 of having been shown a photograph of the plaintiff some weeks later, apparently by the same group of women.
In his statement of 19 August 1998, taken in the second phase of the police investigation, Cst Woods told the interviewing officer that June Clifford had told him in the course of one of many conversations he had had with her (and with Carel Clifford and Lisa Clifford as concerned friends of Ms Byrne), that she had attended a café at Watsons Bay on 16 June 1995 after having visited the area that day in order, as he expressed it, "to say good bye to Caroline in their own way". [491] He went on to say that Ms June Clifford told him: 30. … They attended the 'Bad Dog' Café and were sitting around having a coffee and just passing around photographs of Caroline. Whilst at the Café they spoke to owners, Lance Melbourne and Craig Martin and showed them a photograph of Caroline. A short time later both men came back and informed June they recognised Caroline from the photograph and believed they had seen her and two males walking in the park in early June. They described the two males to June. 31. As a result of that conversation with June Clifford in which she also expressed concern that one of the males described by Melbourne and Martin was similar in description to Gordon Wood, I spoke with and obtain statements from Melbourne and Martin individually 9 July, 1995. At the time I obtained the statements they were both shown a photograph of [Ms] Byrne. They both identified [her] as similar to the female they had seen in the company of the two men at Watsons Bay about the day of [Ms] Byrne's death. I did not show them photographs or make any attempt to identify who the males were at that time. The description they provided of one of the males, was similar in description to Gordon Wood. Additionally they describe this male as wearing a jacket similar to one I had seen Wood wearing. 32. Following the information I received from Melbourne and Martin I contacted Gordon Wood. I told him that I had some further questions to ask and made arrangements to interview him. [492]

[89]

Ms Clifford's first statement to the police

As noted above, at the time of her death Ms Byrne was employed as a School Course Consultant with June Dally-Watkins Pty Ltd, a company owned by Ms June Clifford. Cst Woods obtained a statement from Ms Carel Clifford, the General Manager of the company, on 26 June 1995. Her statement formed part of the coronial brief of evidence. She also gave evidence at the inquest. Her evidence was carefully considered by Det Insp Jacob in the Sufficiency of Evidence Report.
In Cst Woods' statement to the Coroner he made no reference to being aware that Ms June Clifford had spoken to Mr Melbourne and Mr Martin despite being aware, as he made clear in his statement of 19 August 1998, that he knew they had spoken on or about 16 July 1995, and despite being aware that she had shown them a single photograph of Ms Byrne with a view to seeing whether either of them had seen her at Watsons Bay at any time proximate to her death.
He did report to the Coroner that he obtained statements from Mr Martin and Mr Melbourne on 9 July 1995, which he summarised as follows: [They] stated that in early June they believe they may of seen the deceased with two males walking in the Watsons Bay Park at about 1pm, they believe that they saw these three people the same day that they noticed a white Suzuki Vitara parked in Gap road in the evening and early the next morning, the description of this vehicle is the same as the deceased['s] vehicle. [493]
Ms June Clifford first gave a statement to police about visiting the Bad Dog Café and speaking to Mr Martin and Mr Melbourne in May 1996, before the inquest. She said she also made notes of the meeting at that time. However, in neither her statement nor the notes was there any reference to having showed the plaintiff's photograph to Mr Melbourne and Mr Martin. Ms Kylie Watson who was with Ms Clifford on both occasions also supplied a statement to police in May 1996 during the second phase of the police investigation. She also gave evidence at the inquest 24 November 1997. In neither her statement nor her evidence did she make any reference to having visited and spoken with Mr Melbourne and Mr Martin a second time, or any reference to the plaintiff's photograph being produced by Ms Clifford and shown to them

[92]

Mr Melbourne's second statement

Mr Melbourne did not formerly advise police that before he saw the plaintiff at the Coroner's Court in February 1998 he had seen a photograph of him in June 1995 until he supplied a further statement during the third phase of the investigation on 24 March 1999.
Following an attempt to appoint the date on which Mr Melbourne made the alleged sighting of the plaintiff and Ms Byrne, Mr Melbourne said in his statement: 16. … I am in no better position now to fix the date any more specifically other than to say I had seen the three about a week prior to the day Craig and I spoke with June Dally-Watkins in the cafe. It was at this meeting Ms Watkins showed Craig and I the photograph of the woman I had noticed wi th the two men and which I have described above. 17. Detective COOKE this date asked me if I am able to more fully explain the circumstances surrounding Craig and me speaking with June Dally-Watkins at the cafe in relation to the female I had seen with the two men. 18. I do not recall the date Ms Dally-Watkins came to the cafe. Prior to meeting and speaking with her on this occasion I had not met her. Prior to Ms Watkins speaking with Craig and I she was seated at a table in the cafe with a younger female and an older male. I was sitting at the counter and Craig was preparing drinks ordered by patrons. My wife, Sandra, was serving them. Ms Dally-Watkins and the younger female at some point began chatting to me about the cafe. We were chatting generally when she took a photograph from her handbag and said words similar to, "Have you ever seen this girl before". 19 . When she held up the photograph I immediately recognised the female in the photograph as the female I had seen with the two males about a week prior and which I have described in this statement. When I saw the photograph I turned to Craig and said words similar to, "Have a look who this is." Craig replied in terms similar to, "That's the girl from down the park with those blokes." I recall a conversation in similar terms to the following with Ms Dally-Watkins. I said, "That's a girl we saw the other day. Why?" Ms Dally-Watkins said, "We've just been to her funeral." I said, "What happened?" The younger female then said, I "['hey said she jumped off The Gap." Both Craig and I said, "When?" Ms Dally-Watkins then introduced herself to Craig and I. Prior to this point I did not know who she was and assumed she was a friend or relative of the female. … 21. Ms Dally-Watkins then took a second photograph from her handbag and said to me words to the effect of, "Would you have seen", or "Would you recognise the person she was with?" I said, "Yes" She then showed me the second photograph. This photograph depicted a side on view of a male dressed in a brown jacket standing in front or nearby a hedge. I said, "That's him. Who is it?" She said, "That's her boyfriend." She did not name him. The mal e depicted in the photograph was one of the males I had seen with the deceased female friend of Ms Dally-Watkins. The male in the photograph is the person I describe in my statement of 9 July, 1995 as being ' ... tall, slim build, had medium length fair hair and he was wearing a brown coloured suede type of jacket'. [494]

[93]

Mr Martin's second statement

Mr Martin, who also gave a further statement on 26 March 1999, did not say he had earlier seen a photograph of the plaintiff before he identified him at the Coroner's Court. He did tell police the following: 8. I first noticed the three as Lance and I walked across Military road. They were walking north on the eastern kerb about 40 metres south of the tavern. Lance and I continued across the road and stood at the railing of the balcony of the café overlooking Robertson Park. I again noticed the three as they reached the top of the pathway which runs diagonally down Robertson Park from Military Road to Doyles Restaurant and the Watsons Bay Hotel. 9. The woman was very attractive. It was for this reason I noticed the three of them and continued to watch them as they walked down the path. I remember either Lance or I mentioning how good looking the woman was and then commenting as to why such an attractive looking woman would be with the two men she was with. This is how I and why I vividly recall the description of the three persons. 10. In all I would say Lance and I watched the three walking down the path for a minute or two. At the closest point they would have been about 5 metres away from where Lance and I were standing. The three were talking but I could not hear what was said. I did not see them again. 11. Detective COOKE has asked me if there is anything further I can recall in relation to any of the three which is not contained in any of my statements. Having read my statements, the descriptions I have given accurately reflect my recollection of the three at the time I saw them. 12. Detective COOKE has asked me if I recall staff that were working in either the cafe or tavern that day. There was myself and Lance, Lance's wife Sandra. Joerg (I do not recall his surname) and Steve Laidlaw were employees and were working that day. 13. Detective COOKE has today asked me if I am able to fix the day or date I saw the three people at Watsons Bay. As I mentioned in evidence at the Coroner's Court on 25 November, 1997 I believe I saw the three persons on either a Tuesday or Wednesday afternoon. I say this because I recalled it being a Tuesday or Wednesday at the time I spoke with Ms Dally-Watkins in the café, the same day she showed Lance and I a photograph of Caroline Byrne. This was only a week or so after seeing them. 14. Detective COOKE this date asked me if I am able to more fully explain the conversations Lance and I had with June Dally-Watkins. 15. I do not recall the date she came to the cafe. She was in the cafe having coffee with a young girl and a male. Lance's wife Sandra was serving them, Lance was seated at the counter and I was doing the coffees. They were seated at a table near to the counter. We were all in close proximity to each other. From my memory the conversations started when Sandra, who was at the time standing at the table with Ms Dally-Watkins, drew our attention and said words to the effect, "The woman wonders if you guys have seen this girl." Ms Dally-Watkins was holding a photograph of a female. I walked over closer to see the photograph and immediately recognised the female in the photograph as the female I had seen with the two males the week or so prior. Lance also recognised her and we acknowledged this to each other, I think he made some comment but I do not recall what was said. 16. Ms Dally-Watkins, Lance and I then spoke about the girl in the photograph. I do not recall the conversations however it was in the following terms. Lance and I told Ms Dally-Watkins of the occasion we saw the female -in the photograph with the two males. She had not initially told us why she was asking but then told us the girl in the photograph had been found dead at the bottom of The Gap. Ms Dally-Watkins went on to tell us the woman in the photograph worked for her. The younger girl was a friend. They had in fact come from a service for the woman to the cafe. The conversation went on and I continued to work. I don't recall any more of the conversations. Ms Dally-Watkins did however ask if Lance and I would be prepared to speak with the police about seeing this woman with the two men. Both Lance and I agreed we would do so and we both gave Ms Dally-Watkins our particulars on the understanding she would give them to police investigating the death. Ms Dally-Watkins and her friends left a short time later. The conversation lasted no more than five minutes. 17. Detective COOKE has today asked me if I was shown any other photograph by Ms Dally-Watkins. I was not shown any other photographs. 18. It was not until some time later I was contacted by police and went to the Rose Bay Police Station on 9 July, 1995 and made a statement. [495]
It was in the course of reviewing Mr Martin's statement of 6 August 1996 (his second statement) that Det Insp Jacob noted that Mr Martin informed the interviewing officer that later in the afternoon of 7 June 1995 he saw a two door green Bentley motor vehicle drive past the Bad Dog Café. He said he believed he had seen the vehicle "around before because there are only a few Bentleys in Sydney, and two of them are this green model". [496] He also added that he had only ever seen "the blonde longhaired female" [497] he had earlier described seeing at Watsons Bay on that day.
What was ultimately confirmed as a misidentification by Mr Martin and Mr Melbourne of Mr Adam Leigh as the second man with the plaintiff and Ms Byrne on 7 June 1995 was the genesis of what was to become a relatively protracted course of enquiry by Strike Force Irondale as to what, if anything, Mr Leigh could say (or would be prepared to say) as to whether or not he was with the plaintiff and Ms Byrne that day. It is also clear from the multiple references to that line of enquiry in the Crime Scene Reports that the proposed interview with Mr Leigh was not able to be convened, although it appears that it was not known until late in the investigation that he was mentally ill. Although, as Det Insp Jacob acknowledged, the Strike Force had focused a significant amount of work upon efforts to locate and speak with Mr Leigh and that it was also not until late in the investigation that Det Insp Jacob was satisfied that Mr Leigh was definitely not at Watsons Bay on 7 June 1995. In the report Det Insp Jacob stated the firm view of the investigators that the second man at Watsons Bay on 7 June described by Mr Martin and Mr Melbourne was not Mr Leigh with the inevitable consequence that his identification by Mr Melbourne at the Coroner's Court was "a case of mistaken identity".
In the Sufficiency of Evidence Report, Det Insp Jacob also identified Gary Redding as a witness/person of interest and possibly the second man in the area of the Gap with the plaintiff and Ms Byrne on the day of her death. After Mr Redding had been located in New Zealand, and after he had indicated a willingness to assist investigators, an overseas application was submitted to State Crime Command to utilise New Zealand police to collect information that it was thought Mr Redding would be able to provide. Though it is not entirely clear, the suggestion is that by the time New Zealand authorities had attended Mr Redding's home, he had purchased a one-way ticket to England which increased police suspicions. Det Insp Jacob made it clear however that it was not only that conduct that supported the suggestion that he might be the second man. Mr Redding also had an association with the plaintiff, being one of the men with whom Mr Rivkin was in regular contact and a man who dressed in a manner similar to the person described by Mr Martin and Mr Melbourne (and Mr Doherty).
Det Insp Jacob placed considerable weight on the evidence of Mr Melbourne and Mr Martin and their sightings of the plaintiff and Ms Byrne at Watsons Bay, however, as is clearly stated in the Sufficiency of Evidence Report, it is not the position of the Strike Force investigators that they were at Watsons Bay throughout the whole of the afternoon. [498] The investigators appear to accept that at various times the plaintiff left the area, attending to his work commitments. The investigators accepted that Ms Byrne also left the area in the afternoon as evidenced by her use of her Westpac debit card in the Eastern Suburbs between 3:32pm and 3:47pm. [499] However, in substantial reliance on the evidence of Mr Martin and Mr Melbourne, the position taken by the investigators was that the plaintiff was lying when he claimed not to have been at Watsons Bay at any time that afternoon.
What is further maintained is that irrespective of the movements of each of the plaintiff and Ms Byrne from about 8pm they remained in the area of the Gap and were together until the scream was heard by the fisherman (and Mr Doherty) at about 11:30pm. [500] Det Insp Jacob acknowledged that Mr Doherty makes no actual identification of any of the three people he heard and saw arguing. [501] What is maintained is that his description of them is consistent with the description of the three people Mr Martin and Mr Melbourne described in one another's company during the afternoon, in particular, the combination of two males and one female and the area in Watsons Bay where they are observed in one another's company. Emphasis is also given to the fact that Ms Byrne was located deceased hours later and her car was found parked at Gap Lane.

[94]

Mr Doherty's first statement

In his statement of 9 April 1998, Mr Doherty could be no more precise than to say that the incident he described witnessing from his window overlooking Military Road occurred one night at about 8pm in the winter months of 1995. He said his attention was first drawn to a girl's voice moaning and in distress. He said it was a different moaning sound to people from "the pub" [502] who "quite frequently … come past drunk and carrying on". [503] He said she was having an argument with someone.
He said on looking from the window he saw a slim built man, about 6 foot tall, with short cropped fair to blond hair, wearing a dark jacket with either the collar up or wearing a scarf walk under the awning away from his window and towards the girl. The girl had her head down with her hands covering her face, such that he could not see her face. She was sitting in the gutter, leaning against a pole. He could not describe her other than to say she was wearing dark clothes.
He described another man dressed in dark clothes about 5 foot 7 inches standing about 20 metres away.
He said the tall man and girl were arguing and that the girl seemed "drunk or stoned or both", [504] and that her voice was slurred but aggressive. He said she was "having a go" [505] at the taller man. After about 10 to 20 minutes he said the three people moved "up the road towards the 'Gap'." [506]
He went on to say that later that night, after 10.30pm, he heard an argument coming from the Gap which he identified as the same argument or voices he had heard on the street which continued "for about an hour", [507] after which he heard a scream. He said: I looked out the window. I couldn't see anything because it was dark but I could pin point the location to the area of the 'Gap'. I know this area well. I walk around that area all the time. [508]
He said that he continued working until sometime around 1am to 2am and that he saw the police and later a helicopter lighting up the whole area. He said he remembered the area being lit by the helicopter lights as he was "interested in the lighting effect it had on the area". [509] He said he spoke to his neighbour, Ms Fairlie Kingston, the next day about what happened when he learnt that "a girl had gone over the cliff". He said he did not give the incident any further thought and heard nothing about it in the press as he was overseas for some time. In November 1997 (when he returned to Australia), Ms Kingston told him then about a newspaper story. He gave no further thought to the article until he saw the "Witness" program and "thought there were similarities in that story", [510] prompting him to contact police.

[95]

Mr Doherty's second statement

Mr Doherty gave a second statement to police on 10 February 1999 during the course of Strike Force Irondale in which he clarified and elaborated upon his first statement.
He said that he had only been woken in the early morning by a helicopter on two occasions, and one such occasion was in 1995 when "a model was found deceased at the base of the Gap". [511] He said he was told that by a local shopkeeper.
He said that on the previous evening he heard an argument between a man and a young woman and later that night he heard a women scream from near Simon University (which is at the northern end of the Gap).
He said that the following day when the death of the model came up in general conversation he told Ms Kingston that he had heard a scream. He said he has since become aware the model's name was Caroline Byrne. He said he did not discuss the matter with anyone until January or February 1998 when Mr Kingston showed him a newspaper article which insinuated her death may not have been a suicide. He said a few days later (ten at the most) he again spoke with Ms Kingston and discussed with her "what [he] had seen and heard". [512] He said: Part of what I had seen and heard and told Fairley of included the description of the three persons I had seen on the evening prior to Miss BYRNE's death including their physical appearance and clothing. I distinctly recall telling Fairley of the descriptions of the three persons prior to me finding out what was being circulated in the media including the screening of the Witness program. As the result of discussions I had with Fairley I began to believe what I had seen and heard may have been relevant in Miss BYRNE's death. [513]
In his second statement, Mr Doherty also clarified what he meant by the girl being "distressed". He said he meant she was crying while she talked. He said, "she was very loud and obviously not caring about other people hearing her".
He said that he thought that the man arguing with the girl looked like the plaintiff, albeit from behind. She was however quite obviously talking to the male that appeared from under the awning of my building and eventually walked across the road toward her. I had looked out of the window as he walked from under the awning. The argument had been going on for a few minutes that I was aware of, so I looked out to see what was going on. As I looked out the male walking across the street toward the female would have been about 20 feet from where I stood. He was in the middle of the road when I first saw him. While it was dark he was walking under a street light toward her. She sat at the base of a telegraph pole directly under the light with her face in her hands. It is this male I believe Gordon Wood looks like from behind.
He said that he believed the dark coloured jacket that the man was wearing was a leather jacket. He confirmed that the upturned collar or the scarf did not obscure any part of the back of the man's head and he could see below the line of the man's hair at the back.
He said that the girl may have been wearing some denim jacket or jeans but that his view of her was obscured. He said that the argument lasted for 15 to 20 minutes and that at about 8:30pm or 9pm they walked away. He said he thought he thought no more of it until he heard them again at about 10:30pm and thought there was more than two voices. He then heard the argument on and off for an hour and then heard a scream. Prior to going to bed he noticed the police going past towards the Gap. Later he was awoken by a helicopter.
At the committal, when asked if the woman was moaning, as if in pain, he said [514] : Distress, just sort of, like I think I said in my statement just like somebody drunk and that was my immediate interpretation of the sound and I looked out the window when it continued.

[96]

Mr Doherty's third statement

Mr Doherty gave a third statement on 9 November 2004 after the matter was under consideration by the ODPP. The third statement was in the form of an interview in which Det Sgt Quigg focused on "the scream". He also invited Mr Doherty to address or change any detail in his previous statements: Q.6 Could you describe to me in as much detail as possible this 'scream'? A. Well the first thing I remember is that it sounded like a girl's scream, more like a female then a male. I distinctly remember that it came out of the darkness and quietness at that time of night and carried down the road to my piace. It was definitely not like a fun type of scream, it came on the back of arguing and talking but came out on its own, there wasn't any talking or arguing at the time of the scream. I hear a lot of fun type screaming regularly and it was nothing like that. I regularly hear voices and noises coming from The Gap area even from further away then the pathway I believed these noises were coming from. I'm not sure why I'm able to hear the noises from up and around The Gap so well from my place. Q.7 Was there more than one scream or was it continuous? A. Just one short scream. Q.8 Could you estimate the length of time this scream went for? A. It was short, just one scream, it was short and sharp, it was definitely enough for me to know it was a scream, not a laughing scream and was something concerned me. But it didn't go on for long perhaps one or one and a half seconds. Q.9 Did the scream change volume or appear to move or fade away? A. No, it was the same volume, but I should say that if there was a helicopter above the cliff top you could clearly hear the volume of its operations. But if that helicopter dropped below the cliff top towards the water, you loose the sound immediately. It makes a big difference my ability to hear noises. Q.10 At the time you heard this scream did you hear anything else at all? A. I was working away, there had been the arguing, and then the scream on its own, if the scream had continued I would have looked out towards that area again, but it didn't, at the time I just thought it was another scene of the ongoing argument. Q.11 You have indicated that you heard arguing prior to the scream. Can you tell me whether there was any change in the volume of the arguing prior to the scream? A. No I can't. The arguing was [definitely] not happening when I heard the scream, it had subsided before, I can't say whether it was 2 minutes or 10 minutes, I can only say that it was in the time frame of the events that night from after 10.30pm. I just can't remember how close it was. Q.12 Is there anything else about this event you wish to say at this time? A. No I can't think of anything else. [515]
Later in the Sufficiency of Evidence Report under a subheading entitled "Witnesses to the events on the 7 June 1995", [516] Det Insp Jacob summarised in greater detail the evidence it was anticipated Mr Martin, Mr Melbourne and Mr Doherty would give in the event that they were called by the Crown at the plaintiff's trial for murder. [517]

[97]

The plaintiff's movements after 6:30pm and the plaintiff sleeping through to 11:30pm/12:40am

The analysis of the plaintiff's account to police and others of his movements after 6:30pm on 7 June 1995 concluded with Det Insp Jacob's assertion that the account is completely untruthful for the following reasons: [518] 1. The plaintiff's failure to respond to the pager messages sent by Mr Rivkin at 7:30pm and 8:30pm, in circumstances where the plaintiff told Mr Barry in the "Witness" program that it would be practically impossible for him not to have heard the telephone had he received a call. 2. The plaintiff told police in the June 1996 interview that when he woke and saw that Ms Byrne was not home: I think I rang her mobile and it didn't answer and I thought, well of course it doesn't 'cause I told her to turn it off. [519] There is no evidence that the plaintiff attempted to contact Ms Byrne's mobile telephone, either from the home telephone number or his mobile telephone number at any time on 7 June 1995. [520] Additionally, and contrary to what would be expected of a person who finds his (unwell) girlfriend not yet home, he did not check his own mobile telephone for messages (two having been left by Damian Rivkin and Rene Rivkin, at 7:40pm and 8:43pm respectively) or check the home answering machine since were he to have done that, he would have learnt that Mr Byrne had left a message and may have readily concluded that Ms Byrne was visiting with her father. [521] 1. The plaintiff did not seek to contact any of Ms Byrne's family, friends, or make any of the inquiries one would expect a person to make in the event that a loved one had not returned home after earlier being ill, in circumstances where her whereabouts were otherwise unaccounted for. In the circumstances, Det Insp Jacob commented: [W]e assert that Gordon Wood was very much aware of mobile telephone technology, used it often, and regularly contacted Caroline using his mobile telephone. To suggest that he didn't ring Caroline's mobile telephone or that he did but hers was turned off (without even attempting to leave a message) is beyond belief. Further, to jump from Caroline not being home to knowing something was terribly amiss, sets aside many other likely possibilities. [522]

[99]

The plaintiff collects a car to "search" for Ms Byrne via the Kings Cross carpark

The plaintiff told police he left his apartment and went directly to the Kings Cross carpark to see if Ms Byrne's vehicle was where it was usually parked. When he could not locate her car, he told police he went to the Crown street carpark associated with "The Sanctuary". [526] A further carpark described in the Sufficiency of Evidence Report as the Woolloomooloo carpark (referred to at trial as the ABC carpark) was located between the two carparks. Both the Kings Cross carpark and the ABC carpark were security-controlled with an electronic access card at Kings Cross and an access/alarm code entry at the ABC carpark. [527] In the Sufficiency of Evidence Report it is said, referable to the record of interview with Mr Freris, that Mr Rivkin had between approximately 20 and 70 cars, all of which were accessible by the plaintiff and many of which were parked at the Kings Cross carpark and the ABC carpark. None were stored at the Crown Street premises. The only vehicle kept at the Crown Street premises was a company car, a red utility, Mr Freris used.
In the Sufficiency of Evidence Report, this information was analysed and the conclusion drawn that the plaintiff was not telling the truth when he said he went to the Kings Cross carpark looking for Ms Byrne's vehicle. It was the view of the investigators that the plaintiff had been with Ms Byrne throughout the afternoon and that he knew that her vehicle was parked at the Gap. There is no specific position articulated in the Sufficiency of Evidence Report to account for when the plaintiff collected the red utility from Crown Street and why he collected it. He was driving that vehicle when he picked up Mr Byrne and his son from the Connaught after allegedly alerting them to Ms Byrne being "missing".
Det Insp Jacob expressed the view that investigators could only speculate about the plaintiff's movements between 11:30pm and 12:30am (being on the Crown case when the scream is heard by the fisherman and when the plaintiff appears on the cliff top calling her name). Det Insp Jacob went on to say, "there is no evidence that disclose[s] the movements of either Wood or the other male person with him". [528]

[100]

The plaintiff searches for Ms Byrne

The plaintiff told police that he first drove to the Connaught Apartments and upon not finding Ms Byrne's car parked in the street, he drove up Oxford Street, through Bondi to Camp Cove, and then to Watsons Bay. As to this account, the investigators noted that if the plaintiff awoke at 12:40am as he first told police, and which he affirmed in his ERISP in 2001, then there was literally no time for him to have driven to these various locations before arriving at Watsons Bay given that, according to Mr Brunetta, he and Mr Wano first saw the plaintiff at approximately 12:30pm and there is nothing to put their evidence in doubt. Similarly, in Peter Byrne's statement, he says it could have been as early as 12:30pm that he received the telephone call from the plaintiff. The investigators concluded that it was in the plaintiff's ERISP of June 1996 that he changed the so-called "wake up time" of 12:40am to 11:30pm, affording him more time to "drive around looking for [Ms Byrne]" [529] as he claimed.
Quite apart from the plaintiff giving inconsistent accounts as to whether he called Mr Byrne from his mobile phone or called from a public phone at the Gap, Det Insp Jacob offered the view that it "seems incredulous" [530] that the plaintiff, after having conducted a search of the Gap area himself, fearing that Ms Byrne had committed suicide, would contact her father in the early hours of the morning to inform him that his daughter was missing and that her car had been found at the Gap, and then to offer to collect him and Ms Byrne's brother and seek their attendance to conduct a further search for what the plaintiff must have feared was her deceased body on what Det Insp Jacob described as an extremely cold and miserable morning. The plaintiff told the Coroner that he would have liked Ms Byrne's father and brother to have found Ms Byrne's body for him. [531]
In the view of the investigators, a reasonable person, even if acting in extremis, would have called police and reported the matter and not involved her family. From that course of conduct the investigators drew the inference that the plaintiff was endeavouring to involve Ms Byrne's father and brother, prior to the involvement of police, to deflect attention from him. Det Insp Jacob also referred to the plaintiff's behaviour as described by Mr Byrne as "highly agitated, hands moving about, looking from side to side whilst he was driving, as if he was looking for something", and that his overall behaviour was "irrational". [532]
The ultimate position taken by investigators was that the plaintiff's account of arriving at the Gap and concluding she had committed suicide was a fabrication. In the view of investigators, the plaintiff was never asleep at home in Ms Byrne's absence but with her at Watsons Bay at the time of her death, and that he was responsible for it.

[102]

The plaintiff locates the Suzuki Vitara in Gap Lane

An extension of what Det Insp Jacob regarded as a series of interrelated lies as to how the plaintiff came to be at the Gap purportedly calling out for Ms Byrne at 12:30am includes the circumstances in which he claims to have located her car in Gap Lane behind the Gap restaurant. [541] He gave the following accounts variously in his statement to police in June 1995, in the two recorded interviews in July 2001, and his evidence before the Coroner: [542] I drove back towards the Gap and drove down a lane next to the Gap and saw the car parked in the lane. [543] … [I] came back through Watson's Bay and saw her car. Well, to tell you the truth, I can't remember if I saw her car up the lane as I was corning through, but as I was corning through Watson's Bay I remember thinking I don't know why, but I remember thinking, This is good, I haven't found her car at any of these spots. And then as I was going through Watson's Bay I either saw her car up the lane or I went up the back lane and I saw her car parked at the bottom of the steps, and at that, at that point I felt sick, you know, and I thought, Well, she's, she's jumped off The Gap. [544] … Q Where were you when you first saw her car? A. Well I don't know, I mean I must have been driving through where the bus turns or -- … Q You're not suggesting you drove up the laneway and saw it then? You saw it from - A. Well I did go up the laneway but yeah, yeah. I did go up the laneway. Q Yeah after you saw it? A. I can't tell you. [545] … [T]hen on the way back through Watsons Bay I found the car at the Gap. [546] … A: What I think, if I recall correctly, I said, and am on record as saying that I went down the lane because I saw her car. Q: Right. A: So it's entirely possible that that is either mistyped or I wasn't very specific. I, I believe, if I remember rightly, as I was coming back out of the, Watsons Bay, her car or our car, the back of our car is, it, it was, I recall there's a, a building, like a restaurant Q: Yes . A: - - - and the back of the car was kind of parallel, in line with the edge of the restaurant, it wasn't, like, way up the lane, it was near the front of the lane, and there's, there's all sort of - - - Q: Mmm. A: - - - stairs that walk up to The Gap. Q: Right. A: I think that's, that's, I'm pretty sure I've, I'm on record as saying that's why I went down the lane. [547] … Q: And how did you see her car? A: Well, this is where it's very loose, and I seem to be uncertain. Why would I drive up the lane? I can assume I went up the lane because I saw her car. Q: Now assume --- A: Maybe, hang on. Maybe I went up the lane because I was scared that she, you know, had done something stupid. [548] … I cannot tell you definitively if I saw her car and then went down the lane or that I went down the lane because of instinct, or whether I went down the lane because I ' d done that road and not that road. I can't tell you. But somewhere here there were some steps going up to - Q: Yes. A: --- The Gap. And I believe, and I can't say definitively, I believe the car was parked before those steps are reached. Q: Right. A: And I believe the car was visible from the road, but I can't tell you that for sure - Q: Was there - - - A: --- 'cause I can't say that that's what drew me down the lane, or whether I just went down the lane. [549]
On the analysis of that material, Det Insp Jacob concluded that Ms Byrne's car was not visible to passing traffic and that in order to find it one would need to drive into Gap Lane. [550] Det Insp Jacob concluded that this is another of the plaintiff's deliberate lies (and one repeatedly advanced by him), there being no need to "search" for her car given that he knew where it was parked, having been in her company at Watsons Bay at various intervals that day. [551]
On returning to the Gap after collecting Ms Byrne's father and mother, the plaintiff alerted them to Ms Byrne's vehicle. Peter Byrne saw the plaintiff open her car with a set of keys. [552] This was regarded by Strike Force investigators as significant given that when police later attended the scene entry to the vehicle was forced, the plaintiff having not informed police he had keys. [553] Both Mr Byrne and Peter Byrne saw the plaintiff retrieve Ms Byrne's wallet from inside the vehicle which he then handed to Peter Byrne and which he encouraged him to open. Peter Byrne then handed the wallet to his father. Mr Byrne did not see Ms Byrne's debit card or the receipts for the purchases she made earlier that day. He said that had he seen them, he would have paid particular attention to them as he was looking for anything which may have given him a clue as to why Ms Byrne would have been at the Gap at all. Mr Byrne said that he was familiar with the debit card as he opened the account for her. [554]
Later that afternoon at 3pm the plaintiff told Mr Byrne, "They have found receipts in her wallet which shows she was out there the day, the Tuesday and the Wednesday". [555] Investigators note that it was not until 12 June 1995, when the plaintiff was giving a statement to Senior Cst Woods, that the plaintiff gave the receipts to police. [556] From that information, the conclusion drawn by the investigators was that the plaintiff searched Ms Byrne's vehicle and her wallet after killing her but before the arrival of Mr Byrne, Peter Byrne, and the police, and that the receipts were removed by him at that time. [557] Further, only when the plaintiff was satisfied that he could incorporate the receipts into "a scenario" [558] that suited his claim that she had committed suicide did he mention them first to Ms Byrne's father and then some days later provide them to the police.

[103]

The search of the Gap before the involvement of police

In both statements Mr Byrne and Peter Byrne gave to police, their search of the area around the Gap before the arrival of police was described in detail. The poor weather conditions were noted, as was the topography and the poor functioning of a torch borrowed from Mr Wano and Mr Brunetta. [559] The torch had a weak beam that was not apparently functioning at optimum in any event. It would appear that because of the darkness and the weather, Mr Byrne did not participate in the search for very long but returned to the red utility whilst Peter Byrne and the plaintiff continued searching.
On a pathway near the cliff face, the plaintiff indicated an area over the cliff edge and almost directly below and in the general direction of where Ms Byrne's body was later recovered and said words to the effect, "Can you see that Pete, it looks like it could be something". [560] Peter Byrne gave evidence that he could see nothing other than darkness, after which the plaintiff said the following words "Look Pete, it looks like legs and a body". [561]
At about 5am, after Peter Byrne had taken his father home, he received a telephone call from the plaintiff in which he said, "Pete, yeah, they found her. A helicopter found her. It was where we were looking". [562]
Peter Byrne's impression was that the plaintiff was being definitive in drawing attention twice to what he claimed to see and which Mr Byrne claimed he could not see, despite the fact they were standing together at the cliff top. Peter Byrne said in his statement to police of 20 May 1999: I had no doubt that he was trying to convince me that he had seen something. Whilst he was speaking to me about what he could see he was trying to direct my eyesight towards the area he was looking. [563]
Peter Byrne went on to say that he was unable to make out any shape or form on the rock floor, despite what he considered was his good eyesight. [564]
What was described as further supporting evidence that the plaintiff had claimed to have seen Ms Byrne's body with the use of the fisherman's torch were statements of uniformed police officers who attended the area. They are set out in the sufficiency of evidence report as follows: [565] • Constable Brown recalls one of the officers (not known to him) but present said, "The boyfriend had seen the body down there with a torch". Constable Brown also recalls someone mentioning, "The boyfriend had used a fishermen's torch to locate the body." • Constable Cameron Miller, recalls speaking to other police, "About how Wood could have seen the body at the base of the cliff with the use of the fisherman's torch. It was discussed because there was a certain amount of disbelief that anyone could sight the body using a normal torch. " • Constable Wayne Miller recalls hearing on the night "that the boyfriend had seen Byrne's body at the base of the cliff using a fisherman's torch". Miller thought this was strange, as he didn't think the fisherman's torch would have been powerful enough.
Of the process of searching under the command of the Police Rescue Unit, the plaintiff said in his 1996 ERISP: I can remember thinking, that's ridiculous, you're in the wrong area. And I said to one - they had these big torches ... saying to one of the cops holding that, I said, have a look down there. I thought I saw something, where I thought I saw the sneakers with Peter. And he shone the torch ... I could see her legs and I said, there, that's her down there, ... he said, no, I can't see anything there and he kept moving it away and I remember saying, no, no look back there. That's her there. And he shone the torch on her and then they could see her legs sticking up. [566]
In the Sufficiency of Evidence Report, the plaintiff's claim that he saw Ms Byrne's legs with the light of the fisherman's torch in Peter Byrne's company, and then later to have assisted police in locating her using the aid of the specialist light sources, was described as "a very significant issue". [567]
After his analysis of all the available information, Det Insp Jacob concluded that the plaintiff must have had prior knowledge of where Ms Byrne had left the cliff top and the area on the rock platform below where she landed. [568] In support of that claim, Det Insp Jacob noted there was no evidence of even an approximate area where Ms Byrne had left the cliff top given there were no personal belongings found or any other indicia of her descent along the cliff top at the Gap from where a person could have intentionally jumped or stepped. In addition, the conditions of the evening which, in the view of the investigators, made it "impossible" to have sighted Ms Byrne at the base of the cliffs from any point along the cliff top, were emphasised. [569]
Helicopter rescue officer Cracknell described the conditions as follows: The visibility on the night was very poor with sea sprays and high winds… By virtue of the sea spray and the high winds and poor visibility, the lights served no purpose because the light beam was refracted from the moisture in the air the search pattern conducted did not allow for the lights to penetrate to the areas we were requested to thoroughly search. We then returned to the Base and remained on stand-by rescue operations. … In my opinion the weather was exceptionally bad for search and rescue operations. [570]
Det Insp Jacob also noted that each of the members of the police rescue unit gave evidence that police torches were not powerful enough to penetrate the mist to the base of the cliff, and that visual recognition of the rocks was only possible using a Metralux torch which produced a defined optical beam of light.
Det Insp Jacob concluded that although the plaintiff sought to distance himself from the specific statements he had made on 8 June 1995 concerning sighting Ms Byrne's body at the base of the cliffs, what he said at that time was revealing. This was said to be particularly so given what plaintiff told Cst Griffiths who was the officer on duty when he attended at Rose Bay police station with Mr Byrne and Peter Byrne to report Ms Byrne missing. [571] Cst Griffiths reported the plaintiff as having said: I'm pretty sure my girlfriend has jumped off the Gap. [572]
Cst Griffiths responded with the question, "What makes you think that?" to which the plaintiff is reported to have replied, "I'm pretty sure I know where she is". [573]
Det Insp Jacob also noted that it was only at Mr Byrne's instigation that they attended Rose Bay police station as he was frustrated that time was being wasted without police intervention. [574]
It was whilst at the police station that the plaintiff produced the referral to Dr Sippe. Mr Byrne told police of a conversation he had with the plaintiff at that time when, after querying why Ms Byrne did not go to work that day, the plaintiff said, "She'd been to the doctors, she's depressed. She was supposed to go and see a psychiatrist today." [575] Mr Byrne queried what she was depressed about, as to which the plaintiff said, "I don't know. I don't know what she's depressed about", [576] at which point he produced a folded document and said, "Look, she's got a referral to [a] psychiatrist. Here it is, read it. Here's the proof, she's taken her own life". [577] Later that morning the plaintiff also told his mother about the referral. This was also considered by the investigators as another very significant issue and one upon which they relied, together with the evidence that had been assembled of the plaintiff's known movements and those of Ms Byrne on 7 June 1995 which the investigators regarded as supportive of the plaintiff's knowledge of the circumstances of Ms Byrne's death and his involvement in them, and a determination to conceal the truth of that fact. [578]
Particular reliance was also placed upon the plaintiff's reference to the psychiatrist's referral letter to Mr Byrne as proof of her suicide before any other alternative had been fully explored. [579] As Det Insp Jacob emphasised, the plaintiff had not contacted any of her friends or professional associates which might have explained why her vehicle was at the Gap, by way of example, that she may have been socialising late with friends and was now safely at home having been driven home leaving her car to be collected the following day. Police were not provided with the referral letter and were not told of its existence until some time later. Investigators expressed the view that the plaintiff showed the referral document to both Mr Byrne and later to his mother in an effort to persuade them to accept that Ms Byrne had committed suicide, again to deflect attention from himself. The investigators considered it "highly suspicious" [580] that the plaintiff would have the referral with him at the police station on 8 June 1995, and to be in a position to refer to it.
Further, in a record of interview in July 1995, when Snr Cst Woods asked the plaintiff whether Ms Byrne had an appointment with anybody on the Wednesday afternoon, he said: Subsequent to her death, I found her Dr's referral note to the psychiatrist [and on] the envelope in Caroline's handwriting the appointment time of Wednesday 4pm. [581] (Emphasis added.)
Investigators expressed the view that the existence of the referral letter was the genesis of the plaintiff's claim that Ms Byrne committed suicide due to depression; a scenario he developed after killing Ms Byrne, and which he continued to develop and to proffer thereafter in his account to police and the media and in his evidence to the Coroner. [582]

[104]

The suicide hypothesis is rejected by Det Insp Jacob

The hypothesis that Ms Byrne committed suicide was examined by Strike Force Irondale at length. It was also the subject of detailed evidence and submissions at the plaintiff's trial. The plaintiff had widely asserted that it was Ms Byrne's changing career that was a trigger to "her depression"; that she had not recovered from her mother's death by suicide; and that she had a genetic predisposition to committing suicide. [583]
After a close analysis of Ms Byrne's career path, and after taking into account the views of her friends, associates and family members, Det Insp Jacob concluded that the plaintiff's contention that she was suicidal was both "false and embellished". [584] The investigators emphasised that Ms Byrne did not identify a change in career to Dr Pan as a possible cause for her feeling depressed, and in any event, the change in career was only of recent currency, whereas she told the doctor that her feelings of being depressed had been with her for a month. [585] As evidenced by the summary of Ms Byrne's social and professional life in the month or so before her death, she had apparently thoroughly discussed the issue of her changing career with her father and friends, and whilst she had some continuing diffidence about it, she generally spoke about it positively and with anticipation, in particular that her new role would provide her with future work and income security. [586] Moreover, after apparently resolving not to lose her status as a model in the short-term, she had settled on arrangements to ensure a continuity of work in that industry, thereby negating any ongoing career issues as a source of inner conflict. [587]
Det Insp Jacob also firmly rejected the plaintiff's claim that Ms Byrne had not recovered from her mother's death, or that she had a genetic predisposition to commit suicide. In support of that conclusion, he referred to Mr Byrne's account to the effect that the family had accepted the loss of their mother and, so far as Mr Byrne was concerned, she had received and completed a course of treatment with Dr Alexandra Vrjosseck in April 1993 to address her grief. [588]
Finally, after taking into consideration that it was the view of investigators that it was Ms Byrne who Mr Doherty saw arguing with the plaintiff at the Gap on the evening of 7 June 1995, followed by a scream, the hypothesis that Ms Byrne threw herself to her death was rejected. [589]
Whilst Strike Force Irondale investigators accepted, as is evident from the multiple sources they had interrogated, that there was what was described by Det Insp Jacob as "a constellation of issues" [590] impacting on Ms Byrne as at June 1995, they concluded these issues were centrally linked to her relationship with the plaintiff. Strike Force investigators regarded that constellation of issues as the ones Ms Byrne "could not put her finger on" [591] when seeking help from Dr Pan about her feelings of depression.
In the Sufficiency of Evidence Report, Det Insp Jacob noted that during the second phase of the investigation in 1996, Det Sgt Wyver consulted Dr Neil Schultz, Consultant Physician in Psychological Medicine. Dr Schultz provided a report to the Coroner in which he identified that Ms Byrne was capable of suicide and that, in his view, there were a number of features predisposing her to suicide, including her psychiatric and family history. He went on to say that the likelihood that she committed suicide depended upon the degree to which the history given by others was accepted, including the history provided by her colleagues, her father, her general practitioner and the plaintiff. Dr Schultz concluded that, prima facie, the risk of suicide was low when regard was had to the reports of colleagues and remained low factoring in her father's evidence, but that it rose to moderate if Dr Pan's consultation notes were taken into account, and to high if the plaintiff's evidence was added. [592] Since receipt of that report, Det Insp Jacob identified the additional evidence that Strike Force Irondale collected. In his assessment, the plaintiff's account of Ms Byrne's depressed mood and her determination not to return to work on 7 June 1995 should be rejected entirely. [593]
Det Insp Jacob noted that the Strike Force had consulted with a forensic psychologist, Ms Sarah Yule, who was, at the time of presenting the Sufficiency of Evidence Report, undertaking what was described as a "psychological autopsy" of Ms Byrne. For the purposes of that undertaking, she had been provided with the full complement of material assembled by Strike Force Irondale. Det Insp Jacob said that he expected her report to be completed within weeks. He concluded that, subject to anything arising from Ms Yule's report, and after full weight had been given to all of the issues that had been raised by Ms Byrne's presentation in the months, weeks and days before her death and fully investigated, Strike Force Irondale rejected the hypotheses that Ms Byrne took her own life, and that they had done so beyond reasonable doubt. [594]

[105]

Ms Yule's "psychological autopsy" report

Ms Yule provided a report dated 17 April 2004 which I assume was provided to Mr Tedeschi by police for his consideration in preparation for trial. [595] Ms Yule did not give evidence at the trial. There is no evidence one way or the other as to whether it was disclosed in discharge of the Crown's duty of disclosure. There is certainly no suggestion by the plaintiff that it was not.
In that report, Ms Yule identifies all of the material made available to her for the purposes of offering an opinion in the form of a "psychological autopsy" being "an assessment of the personality, lifestyle, significant events and behaviours of the deceased particularly in the days preceding the person's death". [596]
She went on to say: [I]t includes examination of the behavioural, forensic and medical evidence and where possible the scene in an attempt to form a logical understanding of the circumstances of the person's death. It is not an exact science and the limitations of this process must be acknowledged. [597]
It is not necessary to identify the materials provided and the information available to Ms Yule in preparation of her report. Suffice to say that it appears to have included all of the statements which comprised the brief of evidence which accompanied the Sufficiency of Evidence Report, excluding any reference to the contribution of A/Prof Cross. Importantly (for reasons which will follow), it also included the full complement of the hospital and medical records relating to Ms Byrne's 1992 admission following overdosing on sleeping tablets.
In a subheading entitled "Sequence of known relevant events", [598] Ms Yule sets out a chronology of events both personal to Ms Byrne and, in particular, the 24 hours preceding her death.
Ms Yule made it clear in her report that in determining the most likely scenario based on relative probability, "all possible manners of death are considered" [599] . She went on to say that these factors, in isolation, may not contribute substantial psychological evidence, however in combination they can indicate the relative likelihood of one scenario. [600] She acknowledged that an indeterminate conclusion is also possible as part of that process.
Although no reference was made to the evidence of A/Prof Cross, Ms Yule discounted the possibility that Ms Byrne's death was accidental. In considering the possibility of suicide, she considered: [601] 1. Ms Byrne's family history of depression and her mother's suicide in 1991; 2. Her admission to hospital in April 1992 after overdosing on sleeping tablets. Ms Yule noted, however, that the treating doctor deemed the self-harm act not a serious attempt at suicide, but likely an expression of her despair relating to the unresolved grief associated with her mother's death; 3. Her reporting feelings of depression to Dr Pan in June 1995; 4. Her uncharacteristic absence without notice at pre-arranged appointments, including a modelling assignment on the day before her death, and an appointment with a psychiatrist on the afternoon of her death; 5. Cst Woods' belief, as the investigating officer reporting to the Coroner, that her death was a suicide. Ms Yule noted, however, that this was primarily based on the plaintiff's account as her boyfriend.
In considering the possibility of a homicide, Ms Yule detailed a large number of considerations, some of which also addressed the unlikelihood of suicide. They included: [602] 1. Despite reporting feeling depressed in consultation with Dr Pan, Ms Byrne insisted that she was not having thoughts about self-harm, underpinning Dr Pan's clinical opinion that she was not suicidal. Ms Yule considered that Ms Byrne's presentation to Dr Pan did not, in itself, constitute a diagnosis of depression, nor did it reflect suicidal intent. She agreed with Dr Schultz that very few of several criteria required for a diagnosis of depression were apparent on Ms Byrne's presentation on 5 June 1995. Additionally, even were she to have met any of them, it does not automatically follow that she would have contemplated suicide. 2. The referral to the psychiatrist was not made because Dr Pan believed Ms Byrne to be suicidal, but because she had reported finding therapy helpful in her previous engagement with Dr Vrjosseck. In Ms Yule's view: This also suggests that Ms Byrne was probably therefore unlikely to feel the 'helpless/hopeless' state that people considering suicide usually feel. Ms Byrne's self-initiated contact with her GP for assistance is consistent with the evidence of family and friends who described her as someone who when faced with a problem would address it and solve it, including asking others for advice. This characteristic appears inconsistent with someone who would seriously consider suicide. [603] In this connection, Ms Yule also referred to the reports of friends and colleagues (who she referred to by name) based on the statements which she had been provided. As to that material, she said: All of Ms Byrne's family, friends and associates expressed surprise and disbelief that she would commit suicide, describing her as a stable and strong person who would resolve problems that she faced. Their disbelief was based on knowledge of her personality but also witness accounts of her behaviour and disposition in the days prior to her death. Whilst denial can be an initial reaction to a loved one's suicide these adamant opinions nevertheless provide valuable insight into the personality of Ms Byrne and her ability to cope with problems, and have remained consistent to date. [604] 1. As to a family history of depression as a risk factor, Ms Yule said: Although a family history of depression can be considered a risk factor, individuals who have experienced the grief and loss suffered by themselves and their loved ones following the suicide of a family member can instead be vehemently opposed to the idea of a similar decision. It is believed that the latter situation is consistent with Ms Byrne's personality, · reported behaviours and close family relationships. It is noted that the statement provided by Michelle Whelan, a previous student at June Dally-Watkins' school, indicates Ms Byrne demonstrated attitudes inconsistent with suicide when the topic was raised in discussing this witness's own problems. Mr Blanchette's statement further supports this as she had once discussed with him a case in which a girl jumped from a building to her death and "she could not understand how someone could get so low to do this to themselves". [605] 1. Ms Yule went on to express the opinion that Ms Byrne's concern for making career decisions to best facilitate her future options detracted from suicide since it indicates future orientation and a consideration of issues that would impact on her future career. [606] 2. Finally, she noted that there was no evidence of pre-suicidal behaviour, including the use of subtle language that is typical of pre-suicidal people, for example the giving away of possessions or resolving outstanding life issues, and that there was no suicide note. As to the latter, Ms Yule noted that although this was not always present in cases of suicide, given the value Ms Byrne placed on her relationship with family and friends, it appeared likely that even were she suicidally depressed she would have wanted to explain her decision and apologise for the pain that it would cause. [607]
Although not strictly within the remit of her report, Ms Yule considered the plaintiff's behaviours as inconsistent with his apparent personality and his usual behaviours. These included what she considered a surprising lack of concern as to Ms Byrne's whereabouts at both 4pm and 7pm on 7 June 1995; the more surprising given what she described as "his reported knowledge that she was depressed, that several Rohypnol tablets were missing [and] that she was uncharacteristically sleeping throughout the day". [608]
Ms Yule also considered that behaviour unusual given the plaintiff had also told Mr Barry in the "Witness" program interview that Ms Byrne would never go out without telling him where she was going, and would rarely go out without him at all and, further, that he frequently contacted her to find out where she was, including ringing her father and others when he could not contact her directly. [609] (I have already referred to the consideration Det Insp Jacob gave to the plaintiff's unusual conduct on 7 June 1995 and his failure to contact anyone.)
It is unnecessary to refer further to Ms Yule's analysis of the evidence relevant to the possibility of homicide, suffice to note that her ultimate conclusion was as follows: Upon consideration of the personality, lifestyle, significant events and behaviours of Ms Byrne in addition to the forensic, medical, police, scientific and witness evidence, my opinion is that the probable manner of death in the matter of Ms Caroline Byrne was homicide. I believe that, in addition to evaluating her career direction, her relationship situation was a primary focus of her attention in the weeks prior to her death and that this issue escalated significantly in the last 24 to 48 hours before her death. [610]

[108]

Mr Melbourne's evidence at trial

Mr Melbourne gave evidence that he first noticed the girl, as she was "a really appealing looking girl" [611] and that "she was tall and blonde, and very striking. She had tights on". [612] He said she also wore a blue denim jacket and that "she looked like she would have to be a model or a, you know, someone in the public eye-type of thing". [613]
He described one of the men as a "rangy sort of a guy" [614] by which he said he meant "[w]ell, he's tall and looking pretty fit. You know, like a rangy sort of fit guy". [615] He had long blonde hair down to his collar, and was wearing a brown suede jacket. [616] The man had a strong, chiselled face, a strong jaw-line with a round chin. Mr Melbourne formed the impression that the man looked "a bit ponsy". [617] On the Crown case, this man was the plaintiff.
Mr Melbourne gave evidence that when Ms June Clifford showed him a photograph of Ms Byrne he immediately recognised her as the woman he had seen with the two men. [618] He said he then called Mr Martin over and showed him the photograph and he also recognised the woman. Ms June Clifford told him that they had been to a funeral that day for the girl depicted in the photograph. He was told that the girl in the picture was the deceased, Caroline Byrne.
Mr Melbourne gave evidence that after Ms Clifford had shown him the photograph of Ms Byrne she showed him a photograph of a man who he recognised as the taller of the two men he had seen with Ms Byrne. [619] The man in the photograph wore the same jacket and was the same build as the man he had seen with the beautiful girl. Mr Melbourne gave evidence that he was not told at that stage who the man was, nor what his relationship was with Ms Byrne. [620] However, he agreed that in his statement of March 1999 he had said that he had been told that the man was Ms Byrne's boyfriend. [621]
At trial Mr Melbourne, having given evidence that on his way to the Coroner's Court he had recognised a male as the same person in the photograph and the same person he had seen at the Gap, was asked: Q. Do you see that person in court today? A. Yes I do. Q. Would you please identify him? A. That person there (indicates accused). CROWN PROSECUTOR: For the record identifying the accused, Gordon Wood. [622]

[109]

Mr Martin's evidence at trial

Mr Martin gave evidence that he recalled seeing Ms Byrne because she was: [J]ust stunning. Just a really beautiful looking young girl. And I noticed her and so did Lance. And the two fellows with her just seemed, I don't know, it just didn't seem to go together. And that's probably why it stuck in my mind a little bit more, but she was just a really good-looking young girl. [623]
At the time he saw the girl, Mr Martin said he commented to Mr Melbourne as follows: Isn't it always the way, you know, you see a girl like that, and they're with two guys like that. [624]
Mr Martin described the girl as being 5 feet 10 inches to 5 feet 11 inches tall. She had dark blonde hair and was in her early 20s. She was wearing tights and a "loose-ish … shirt-type top". [625] After refreshing his memory from his statement of 9 July 1995, he described the top as "like a denim sort of shirt-ish jacket type thing". [626] In cross-examination he agreed that in his statement dated 9 July 1995, he described a female as quite tall, approximately 20 years old, with long blonde hair and wearing a blue denim jacket with light-coloured tights. [627]
He gave evidence that one of the men was "tall, sort of gingerish-blondish hair; athletic build, but, you know, not a big man". [628] He appeared to be of Anglo-Saxon background. [629] He wore a dark-coloured jacket that appeared to be over-sized. It was an anorak, outdoor-type jacket with pockets. Mr Martin stated that the jacket worn by the person depicted in Ex AT was similar to the jacket worn by the taller man he saw at Watsons Bay.
At trial, Mr Martin, having given evidence of his instant recognition at the Coroner's Court of the plaintiff as the taller of the two men he had seen with Ms Byrne, was asked: Q. The man that you saw in the park with Caroline Byrne, and the man that you saw at the Glebe Coroner's Court, do you see that person at Court today? A. Yes, I do. Q. Would you identify that person? A. Yes. Sitting in the dock. Q. That's the accused Gordon? A. That's correct. Q. At the time when you saw him at the Glebe Coroner's Court, when you recognised him, did you see him with anybody or speak to anybody? A. No, he was just sitting on his own, from what I can remember. [630]

[110]

Mr Doherty's evidence at trial

Mr Doherty gave evidence at trial that in 1995, before 8pm, on an evening prior to a helicopter searching at the Gap at around 1 to 2am, he heard "a young girl outside who was sort of slurring her words and moaning". [631] She was "with her head in her hands sitting on the kerb at the bottom of a light post on the far side of the road from my studio". [632] There was a man under the awning and a smaller man sitting on the wall just up from the girl. He thought they were having an argument. He said the woman was: [S]ort of talking and slurring and moaning at the same time in - I suppose it was like a - an argument that was sort of, how would I put it? I mean, I did say in my statement she was slurring aggressively, and really she was slurring in return to the argument. She was sort of being combative, but I thought she was just too drunk and she wasn't making sense, but she was annoyed. [633]
He described the man under the awning as: A tall man, probably around 6 foot tall. He had dark clothes on. I thought it was a leather jacket, a dark leather jacket, probably black, and it was like a three-quarter length down to, you know, the thigh below the bottom, and he had short cropped blonde hair. [634]
The other man was: [D]ressed in dark clothes … He was small. He was about - probably a little smaller than me, about 5'6" and I thought he had something on his head like a beanie. [635]
He said the girl had: [D]ark clothes on. That's all I could say … And I have a feeling that she had denim on. I don't know whether it was a denim jacket or denim jeans, or something. [636]
At about 10:30pm he said he could hear arguing coming from near the pathway where the Simon University meets the Gap lookout, and he recognised this as a continuation of the argument he had heard earlier. The argument went on for about an hour and then at 11:30pm or midnight he heard a short scream, maybe a second or so, before silence. He said it was a woman's voice.
He said he spoke to Ms Kingston the next day and told her he had heard a scream. (Ms Kingston made no reference in her statement of 8 February 1999 to Mr Doherty telling her in February 1998 about hearing an argument which extended to the Gap or that the scream came from near Simon University.) Mr Doherty made no reference to Simon University in his first statement. He said that in 1998 he spoke to Ms Kingston again and she showed him a newspaper article which contained photographs of the plaintiff and Ms Byrne. Ten days later he spoke to Ms Kingston again and for the first time gave her a description of the people he had seen in 1995.
Mr Doherty gave evidence that he then watched the "Witness" program where he had a "proper look" [637] at the plaintiff. Mr Doherty was then asked to compare the plaintiff's appearance on the "Witness" program to the tall man he saw on the night. Mr Doherty gave evidence that the plaintiff (as he appeared on the program) had a similar stature, height, build and hair to the man under the awning.
In cross-examination Mr Doherty agreed that he had told the police that the man under the awning had "short cropped fair to blonde hair", [638] that he could not describe the woman "only to say she had dark clothes on" [639] and that: The tall guy and the girl were obviously arguing. The other guy was not participating. She seemed drunk or stoned or both. Her voice was slurring but was aggressive. She was having a go at the taller guy. [640]
He said her words were "all slurred. It was like a rant". [641] He gave evidence that the taller man "had short hair at the sides … and the back … and a little bit longer on top" [642] and that "it was what you would call probably a number 2 or number 3 around the sides". [643] Mr Doherty then said, "[s]o you could see the shape of the head quite clearly. And there seemed to be a little bit more on top". [644] It was "short on the side, the back, all around the back and a little bit more on top. It was a style at the time". [645] He agreed it could be described as very short hair following the contours of the skull at the sides and back. He said the man had "long limbs … long arms and long legs". [646] Mr Doherty was emphatic that the man he saw did not have long blonde hair: "No, no, no. You could see the shape of the head very clearly". [647]
Mr Doherty did not give any evidence of seeing the woman's face or her hair. He said he could not see her hair at all as she was holding her head in her hands and that he did not see the back of her head as they walked away. He was asked: Q. … Could you tell whether she had long hair? A. I couldn't, no, because she had her [head] in her [hands]. [648]
There was evidence at trial from Ms Byrne's family members and friends that Ms Byrne was not the sort of person that would be sitting in the gutter affected by prohibited drugs, or alcohol, shouting at people, and that such behaviour would have been totally out of character. Her sister, Deanna, gave evidence that she had never seen her sister drunk. Tanya Zaetta, a friend of Ms Byrne, agreed that a description of Ms Byrne as drunk and shouting would be "absolutely absurd". [649]

[111]

The effect of displacement and the plaintiff's submissions concerning the "identification evidence"

It is well recognised that the displacement effect, described by Stephen J in Alexander v The Queen (1981) 145 CLR 395; [1981] HCA 17 at 409, set out in the passage below, creates the opportunity for the misidentification of a person. Having been shown a photograph, the memory of it may be more clearly retained than the memory of the original sighting of the offender and may, accordingly, displace that original memory. Any subsequent face-to-face identification, in court or in an identification parade, may, on the identifying witness's part, in truth involve a matching of the man so identified with the remembered photograph, which has displaced in his memory his recollection of the original sighting.
In R v Skaf 60 NSWLR 86; [2004] NSWCCA 37 at [80] this Court described the displacement effect in the following terms: The displacement effect refers to the risk that a witness who has seen a photograph of someone may unconsciously have his or her memory reinforced by the photograph as distinct from his or her earlier observation of the person in the flesh; and that that displaced memory may be the basis of a later in-court or other identification made in the presence of the accused person…
In circumstances where the identification of the plaintiff by Mr Martin at the inquest in November 1997, and then the separate identification of the plaintiff by Mr Melbourne at the resumed hearing in February 1998 as one of two men with the woman they identified as Ms Byrne at Watsons Bay on 7 June 1995, was preceded by them both having been shown a single photograph of the plaintiff by Ms June Clifford within weeks of the initial sighting, the risk of displacement was in play. The risk of displacement was also in play (although in a different way) in Mr Doherty's nomination of the plaintiff as similar to the taller of the two men he saw and heard arguing with a girl on the evening of 7 June 1995, after he had seen the "Witness" program in 1998 in which the plaintiff featured prominently, and also after he had been shown a newspaper article which included a photograph of the plaintiff.
The plaintiff submitted the evidence of Mr Martin and Mr Melbourne, and their identification of Ms Byrne, also carried the additional risk that their evidence was "contaminated" by the identification of her from the photograph produced by Ms Clifford at Watsons Bay.
The plaintiff went further in his submissions by contending that there were motives for persons aligned with Ms Byrne's father and with Mr Blanchette to have Messrs Melbourne and Martin "come forward" [650] and identify the plaintiff as being with her at Watsons Bay on the afternoon of the day she died. It must be assumed from the tenor of that submission that the plaintiff also contends that this was accompanied by a ploy to have the plaintiff identified at the Coroner's Court and for them to deliberately suppress or fail to give evidence about the circumstances in which they had each been shown a photograph of him in 1995. Nothing was advanced to support that submission other than what counsel submitted were "irreconcilable differences" [651] between the evidence of Ms June Clifford and Mr Martin and Mr Melbourne about the sequence of events that preceded the plaintiff being identified by each of them in the course of the inquest. While it is clear from the evidence they gave at trial in 2008 that the circumstances in which they were in contact with one another in the weeks that followed Ms Byrne's death in 1995 (all of which were casual and unplanned) produced differing recollections as to what photographs had been shown to them and by whom, and in what sequence, including the discussions that they had with each other and with Ms June Clifford at that time, that is a wholly insufficient basis upon which to invite the Court to infer that they had deliberately conspired to make a false identification of plaintiff. That submission should not have been advanced.
The plaintiff also advanced the submission that Ms Clifford had told a deliberate lie in her statement of 15 May 1996 in saying that when she returned to Watsons Bay on the second occasion (this time to The Gap Tavern) she came to the conclusion that she was "being dramatic" and then "put everything out of [her] mind". The plaintiff submitted that it was "no accident" that neither Mr Melbourne, Mr Martin nor Ms Clifford disclosed at the inquest that they had earlier been together when a photograph of the plaintiff was discussed. Again, the clear implication is that they each knew that would have undermined the weight of their evidence and that they conspired to conceal it. It might be gainsaid that the evidence of Mr Martin and Mr Melbourne would not have been viewed by the Coroner as having the same compelling weight he ascribed to what he considered was the "spontaneous" identification of the plaintiff by each of them in the court precincts, were he to have known that they had been shown a single photograph of the plaintiff within weeks of 7 June 1995 (even if that were two or more years before they claimed to identify the plaintiff at Glebe). That does not, however, entitle the plaintiff to advance the submission that there was a deliberate suborning of the proceedings by either of them or by Ms Clifford. That was also a submission that should not have been advanced.
For the purposes of these proceedings the plaintiff is obliged to demonstrate not merely that there were issues as to the reliability of the identification of the plaintiff by Mr Martin and Mr Melbourne which should have been apparent to either or both of Det Insp Jacob and Mr Tedeschi at the time proceedings were initiated and maintained, but that no reliance should have been placed upon their evidence in assessing the sufficiency of the Crown case against the plaintiff for murder for that reason. The same approach needs to be taken to Mr Doherty's evidence.
The plaintiff submitted that Mr Doherty's evidence at trial was "worthless" and could not reasonably or properly have been relied upon by Mr Tedeschi when he initiated proceedings against the plaintiff for murder, or when he maintained the criminal prosecution through to verdict, his evidence being, in the plaintiff's submission, irretrievably tainted by the extensive media coverage of Ms Byrne's death following the inquest, including the broadcast of the "Witness" program. The plaintiff submitted that to rely on Mr Doherty's evidence to establish that the plaintiff was at Watsons Bay at a time proximate to Ms Byrne's death (on the Crown case at 11:30pm on 7 June 1995), a fact identified by Mr Tedeschi as a critical circumstantial fact in his opening and closing submissions, was further evidence of the objective insufficiency of the evidence to support a charge of murder. It was then submitted that Mr Tedeschi's treatment of Mr Doherty's evidence in his closing submissions is also evidence of his malice. This will be dealt with as a separate issue later.
The plaintiff does not discharge the onus on him in these proceedings by a critical analysis of the "identification evidence" as it was adduced at trial and tested in cross-examination, in particular the circumstances in which Mr Melbourne and Mr Martin made their positive identification of the plaintiff in November 1997 and February 1998 and the circumstances in which Mr Doherty made his identification of the plaintiff after viewing the "Witness" program. That exercise was obviously necessary for the purposes of the plaintiff's conviction appeal where the challenge was to the adequacy of the directions given by the trial judge. (I note that the submissions filed by the applicant's counsel on the appeal are a mirror image of the analysis of that evidence undertaken by his counsel in these proceedings, with references in final submissions to the trial transcript referable to its page numbers in the Court Book as distinct from transcript references in the submissions on the appeal.)
A different analysis is called for the purposes of these proceedings. The question here, insofar as it relates to Mr Tedeschi as a prosecutor, is whether there was reasonable and probable cause for him to initiate and maintain the proceedings against the plaintiff for murder, where the Crown sought to make the case that the plaintiff had not given a truthful account to police of his movements on 7 June 1995 (in particular his account of not seeing or speaking to Ms Byrne at any time after 1pm that day after he left her in bed at their apartment) by relying on the direct evidence of Mr Martin and Mr Melbourne as two witnesses who positively identified him at Watsons Bay in Ms Byrne's company that day, together with other items of evidence said by the Crown to support that identification - the sighting of Ms Byrne's car parked in Gap Lane being one such circumstance. That is not to say that what emerged at trial is irrelevant. Indeed, it would appear, perhaps unsurprisingly, that in some respects the identification evidence adduced by the Crown at trial from Mr Melbourne and Mr Martin was expressed in more qualified terms than in their July 1995 statement.

[112]

The alternate case against Det Insp Jacob as prosecutor fails: Mr Tedeschi is the only prosecutor

Insofar as Det Insp Jacob is concerned, the question is different again. It is whether the plaintiff has established that Det Insp Jacob knew of the effect of displacement and/or "corruption" by the media and somehow sought to conceal it or mute its impact in his treatment of the evidence of Mr Melbourne, Mr Martin and Mr Doherty in the Sufficiency of Evidence Report. I am not persuaded that the plaintiff has discharged that onus. While Det Insp Jacob did place significant reliance on their evidence, despite obvious issues with it including the wrong identification of Adam Leigh by Mr Melbourne in 1998, I do not read his analysis of their evidence in the Report as other than a fair summary in the context of the Report read as a whole and for the purposes for which it was prepared. The same analysis and conclusions apply with respect to his treatment of the evidence of Mr Doherty. I am of the same opinion as regards particulars (c)-(e) above. I do not regard any aspect of Det Insp Jacob's analysis of those subjects comprehended by (a)-(d) as other than reasoned and available or that the plaintiff has made good the claim the subject of (e). I am not satisfied that the plaintiff has established that Det Insp Jacob acted dishonestly in his dealings with Mr Tedeschi or that the challenge to his credit in these proceedings was successful.
In particular, I consider it was open to Det Insp Jacob to reject the plaintiff's account of his movements on 7 June 1995, including his account of being at home asleep for many hours before waking and finding Ms Byrne absent, leaving it for a tribunal of fact or officers of the ODPP to determine whether there were other explanations for his conduct inconsistent with what Det Insp Jacob considered was the plaintiff's knowledge of the circumstances in which Ms Byrne descended from the cliffs at Watsons Bay to her death.
For that reason, the plaintiff's alternate case against Det Insp Jacob as a prosecutor fails. It follows that the plaintiff's case is confined to proving Mr Tedeschi prosecuted him maliciously and without reasonable and probable cause.

[113]

Mr Tedeschi's evidence on the issue of identification

There were significant issues with Mr Doherty's evidence which Mr Tedeschi accepted in his evidence in these proceedings were obvious to him at the time he advised Mr Cowdery that there was sufficient evidence to support a charge of murder. He said in his statement of October 2016, "As an experienced Crown Prosecutor, I did not form the view that Mr Doherty was an unreliable witness". [652] Mr Tedeschi accepted, however, that the description in Mr Doherty's first statement of the girl he saw as "stoned" or "drunk" could not have been Ms Byrne since toxicology confirmed she had no alcohol (or Rohypnol) in her blood at the time of her death.
Mr Tedeschi also accepted Mr Doherty did not see the girl's face (or hair) and that he gave no other physical description of her, and that his description of the taller man was inconsistent with the length and cut of the plaintiff's hair as at June 1995 referable to photographs of him taken on 10 June 1995. By contrast, when the plaintiff appeared on the "Witness" program in 1998 he had short hair in a style that was not inconsistent with what Mr Doherty described the taller man to have had. The potential for Mr Doherty's memory to have been influenced by the images he saw of the plaintiff on the television three years after the evening of 7 June 1995 is obvious. In his second statement Mr Doherty also asserted the second man resembled the second man who participated in the "Witness" program re-enactment. It was no part of the Crown case that that person was in any way implicated in the events of 7 June 1995.
Quite apart from the potential corruption of Mr Doherty's evidence by media coverage, the plaintiff submitted it was not open for Mr Tedeschi to have "work[ed] backwards" [653] from the fact of Ms Byrne's death and the isolated scream the fisherman heard, to invite the jury to conclude it was Ms Byrne who Mr Doherty saw and heard arguing with two men (one of which was the plaintiff). The plaintiff submitted that the issues with Mr Doherty's evidence were so great that the scream heard by the fishermen and the scream Mr Doherty heard might well have been unrelated. I do not accept that submission. In my view, it was open to Mr Tedeschi to construct the Crown case on the basis that the scream the fishermen heard was in all probability Ms Byrne's scream as she descended from the cliff edge such that the temporal alignment with the scream heard by Mr Doherty was also evidence upon which he could invite the jury to find that it was Ms Byrne who was also seen and heard by Mr Doherty underneath his awning.
Mr Tedeschi accepted in his evidence in these proceedings that the identification evidence had significant issues attending its acceptance by a jury, not the least because Mr Melbourne misidentified Adam Leigh at the Coroner's Court as the second or other man with the plaintiff and Ms Byrne in the daytime sighting at Watsons Bay. It was the Crown case at trial that the identification of Mr Leigh was a mistake. It was the defence case that their identification of the plaintiff was also wrong or at least unreliable. In my view, Mr Tedeschi was entitled to regard this as a classic jury question. I am not persuaded that it carries very much weight on the question whether there was an absence of reasonable and probable cause in the prosecution being initiated or maintained.
The plaintiff submitted that by Mr Tedeschi recognising that there were significant issues as to the admissibility and reliability of the identification evidence, he was admitting to knowing there were fundamental deficiencies in the case that he prosecuted of which the identification evidence was one among many. I do not see that conclusion necessarily follows. In any event, Mr Tedeschi's evidence was not that there were significant issues as to the admissibility and reliability of their evidence per se. When asked whether he thought the identification of both Ms Byrne and the plaintiff was unreliable he gave the following evidence: Q. It was clear, I suggest, from, first, the fact of being shown the photographs and, second, the incorrect identification of Mr Leigh that their identification of Caroline Byrne and my client was unreliable? A. No, I didn't consider that it was unreliable. I realised that there were some issues that would be litigated in terms of the admissibility of the evidence and then in terms of the reliability of the evidence in front of the jury, but I did not consider that it was a proper role for a Crown Prosecutor to pull the evidence because of that. I thought that it should be led. It was - I, I believed that it was credible, reliable evidence in relation to the identification of the two people and it was a matter for the judge to rule on any objection that came to that evidence. Q. It was, in fact, a classic example of the displacement effect, wasn't it, to your knowledge? A. I don't think that it was classic case of displacement but there was certainly the issue - there was the potential for the issue to arise of displacement by - to be raised by the defence both in terms of admissibility and in terms of the reliability in front of the jury. [654]

[114]

The defendant's submission on the identification issue

The defendant submitted that the approach Mr Tedeschi took to the identification evidence was consistent with principle. In the defendant's submission, the fact that there was no objection to the evidence at trial (and no ground of appeal advanced that it ought to have been withdrawn from the jury's consideration at the instance of the trial judge) reinforces the further submission that it was open to Mr Tedeschi to regard the identification evidence from Mr Melbourne and Mr Martin and the evidence from Mr Doherty, coupled with the body of other evidence that operated directly and by inference to locate Ms Byrne at Watsons Bay for some hours on 7 June 1995 (including, importantly, that her car was parked in Gap Road from at least as early as 6pm on the evening of 7 June 1995) as having the capacity to contribute to proving that the plaintiff was with her at the time she descended to her death from the cliffs at Watsons Bay at around 11:30pm.
The defendant emphasised (as it did in respect of the evidence of Mr Martin and Mr Melbourne) that defence counsel took no objection to Mr Doherty's evidence, and further, that the directions requested of the trial judge by defence counsel (all of which were given with the Crown's agreement) is the strongest indication that, in the atmosphere of the trial, defence counsel did not perceive that any injustice was occasioned to the plaintiff as a criminal accused, either in the way the evidence was adduced or the way it was used by Mr Tedeschi in proof of the Crown case. Ultimately it was the defendant's submission that it was open to Mr Tedeschi to utilise Mr Doherty's evidence as part of the complex of evidence relied upon by the Crown to prove its case, and for Mr Tedeschi to advance the submissions in closing the Crown case that relied upon his evidence.
The defendant emphasised the concessions Mr Tedeschi made in the course of the trial as to the need for the trial judge to warn the jury in accordance with s 165 of the Evidence Act about the dangers of "identification" evidence (including the incorrect identification by Mr Melbourne of the second man as Adam Leigh) thereby bringing into sharp focus the potential unreliability of the identification of the plaintiff as the other man and the warnings his Honour needed to give concerning the displacement effect as regards the identification of the plaintiff at the Coroner's Court (a matter Mr Tedeschi said he was conscious of from his early consideration of the brief of evidence). These concessions are said by the defendant to be inconsistent with a prosecutor focusing single-mindedly on securing a conviction, the allegation central to the plaintiff's case that he was prosecuted by Mr Tedeschi maliciously. By contrast, the defendant submitted that they are consistent with a prosecutor acting in conformity with his legal and ethical obligations.
The defendant advanced the further submission that had Mr Tedeschi refused to lead the evidence of identification from Mr Martin and Mr Melbourne (even if it was of reduced probative value), defence counsel may well have been critical of him not leading evidence from all material witnesses. The defendant cited a number of authorities in support of that proposition (R v Kneebone (1999) 47 NSWLR 450; [1999] NSWCCA 279; Richardson v The Queen (1974) 131 CLR 116 at [119]; R v Apostilides (1984) 154 CLR 563 [1984] HCA 38; R v Shaw (1991) 57 A Crim R 425; Tien Tran v Magistrates' Court of Victoria [1998] VSC 337; R v O'Brien (1996) 66 SASR 396; Geitonia Pty Ltd v Inner West Council [2016] NSWCCA 186). Although the plaintiff did not take issue with the authorities to which the defendant referred, he submitted that this was not a case where the defence would have been critical of the Crown for not calling the identification evidence from Mr Melbourne or Mr Martin. I do not consider that hindsight reasoning of this kind by both parties assists the resolution of the issues that present in these proceedings.

[115]

The competing cases on the "identification evidence" in summary and their resolution

The plaintiff's case is, in short, that on a proper analysis, the evidence of the identification witnesses was neither credible nor reliable, and further, that it was so fundamentally flawed that a cautious and prudent prosecutor in Mr Tedeschi's position would not have relied upon it in his advice to Mr Cowdery as to whether proceedings should be initiated. Further, the plaintiff submitted, the position taken by Mr Tedeschi at trial, in urging a jury to accept the identification evidence as strongly probative of the plaintiff's guilt, was not a position reasonably open to him.
The defendant submitted that despite issues in the way the identification evidence was obtained by police (including, but not limited to, what the defendant submitted is the notorious effect of displacement when a single photograph is used for identification purposes), issues which, standing alone, may have impacted adversely on the weight of the evidence as probative of the plaintiff's guilt, it was open to Det Insp Jacob to rely upon the evidence in the Sufficiency of Evidence Report, as it was for Mr Tedeschi to rely upon it when furnishing his advice to Mr Cowdery and to seek to adduce it as relevant and admissible evidence in the Crown case at trial. I accept that submission as I do Mr Tedeschi's evidence that he considered the evidence from Mr Melbourne and Mr Martin (and Mr Doherty) to be relevant and admissible, although he said he would not have been surprised were there an objection to the evidence which he might have needed to contend with. In the conduct of the plaintiff's defence at trial no objection was taken.
Save for the issue of "the green Bentley" (to which I will presently refer), I also accept that Mr Tedeschi fairly and properly adduced the evidence and made submissions about its weight in proof of the Crown case that the plaintiff was guilty of murder in his opening and closing addresses to the jury.
Accepting that the previous presentation of a single photograph of the plaintiff had the capacity to undermine the reliability of identification of the plaintiff by Mr Martin and Mr Melbourne at the Glebe Coroner's Court, and that, in other respects the reliability of their account of seeing Ms Byrne with the plaintiff suffered from the circumstances in which their evidence was obtained by police, I do not accept the plaintiff's submission that the identification evidence was so fundamentally compromised that neither Det Insp Jacob nor Mr Tedeschi should have placed any weight on it, and Mr Tedeschi ought not to have done so were he to have honestly and diligently complied with his ethical obligations as a prosecutor.
The defendant filed supplementary submissions citing The Queen v Dickman (2017) 91 ALJR 686; [2017] HCA 24 as authority for the proposition that potentially flawed identification evidence, which is assessed to be of low probative value, is nonetheless admissible in a case based on circumstantial evidence in cases where, if the evidence is considered with other evidence probative of guilt, it may have increased probative value. The plaintiff also filed submissions addressing Dickman. In the plaintiff's submission, the decision in Dickman has no relevance to the issues raised in these proceedings, there being nothing in the decision to support the proposition contended for by the defendant that the low probative value of the identification evidence in this case was capable of being elevated by other evidence available to the Crown in proof of the plaintiff's guilt such as to strengthen its cogency.
While not a binding authority, I regard the discussion in Dickman of some guidance in resolving, as I have, that the plaintiff has failed to establish that the identification evidence was so fundamentally flawed that the proceedings were initiated against him without reasonable and probable cause for that reason or that the assessment of the evidence by Mr Tedeschi as relevant and admissible revealed a lack of any genuine belief in the capacity of the evidence to support the Crown case.

[116]

The significance of the green Bentley on the issue of identification and Mr Tedeschi's submissions about it

In closing submissions, Mr Tedeschi took some time to interleave the evidence of Messrs Martin and Melbourne with the evidence of Mr Doherty, together with a range of other facts emergent from the evidence, to make good his submission that the jury would be satisfied that the plaintiff was with Ms Byrne at Watsons Bay in the afternoon of 7 June 1995.
This submission refers to the issue of the green Bentley to which I propose to give separate attention. I will include it in this extract for context. Firstly, Mr Martin. Mr Martin said that the tall man was tall, sort of gingerish blondish hair, athletic build, not a big man. The other fellow was dark haired and a fair bit shorter. The taller man was angular. The taller man's height was about 6 foot or a bit more maybe. The other man was shorter, probably 5'8", 5'10", something like that. The shorter man had a dark complexion and dark hair. The woman was wearing some sort of tights, she was in her early 20s, she was darkish blonde, 5'10" or 5'11" and she had something like a denim sort of shirtish-jacket-type of thing. The second male was wearing a dark leather jacket. He had a darker complexion. He was fairly slight. My learned friend, Mr Terracini, read to Mr Martin from his statement about the taller man, that the taller man was probably about 6'2" or 6'3" inches tall with reddish or light coloured hair cut short. He had a slight athletic build and Australian appearance. That's Mr Martin. Mr Melbourne gave this description, that he and Craig commented how attractive this woman was. That one of the guys, the shorter guy, looked very out of character for the area. She was tall and blonde and very striking. She had tights on, body tights that were full length. She had a blue denim jacket on. One of the chaps, the taller one, was a rangy sort of guy. He had fairly long blonde hair, probably down to his collar, and he was wearing a suede jacket, a chamois-type of jacket. It was brown. The other guy was short, he had black dreadlocks, he was all dressed in black. He was 5'3" or 5'4". He had a dark complexion. He looked Spanish. He had long black boots that came up to his knees. The first man, the taller man, had a very distinctive facial structure. He had a very sort of strong face, like a chiselled-type face, indicating around the chin. He had a very strong jaw line-type of thing. The other man, the shorter man, looked like he came out of a nightclub in LA. The taller man, he thought: "he looked a bit poncy, the way he was walking , sort of a rangy sort of guy; he's tall and looked pretty fit, you know, like a rangy sort of fit guy." Now, ladies and gentlemen, a beautiful blonde woman who , one of them also described her as looking like she was a model, blonde hair dressed in tights and a denim jacket with a tall man 6'2", 6'3", fit and rangy looking, and the description given by both these two men, you could stand on the corner of Robertson Park for a month and not see two people who matched that description, but the combination of those two descriptions of those two people very clearly describe the accused and Caroline Byrne. … Now, ladies and gentlemen, if the Vitara was there, Caroline Byrne was there; if Caroline Byrne was there, who was the tall gingery-haired man that she was with, with a strong jaw line and the description that was given by Mr Martin and Mr Melbourne? Including the brown suede jacket which we know, from a whole lot of evidence, that that was a jacket that the accused wore all the time? So we submit that purely on the descriptions that were given, you would be satisfied, when combined with the evidence about the Vitara, that Caroline Byrne and the accused were at Watsons Bay walking towards the hotel and the restaurants at about 1, and coming back about two hours later at about 3. If she was there, the taller man that she was with must have been the accused. If the accused was there, then his story about going home and seeing her groggy with Rohypnol in the middle of the day is a complete and utter fabrication. Then, we come to the evidence about the Bentley - before we get to that. Then, we come to the evidence of these two men, Martin and Melbourne, identifying Caroline and the accused from photographs about a week later. [Mr Tedeschi then summarises the circumstances in which that occurred]. … Constable Craig Woods spoke to both Lance Melbourne and Craig Martin, and both of them identified the photographs of Caroline Byrne as similar to the female that they had seen with two men at Watsons Bay. Then, of course, in 1997, Craig Martin attended the Glebe Coroner's Court and identified a man in the foyer, the accused, as the taller of the two men in the park, and he told Detective Wyver that. In February '98, he again attended the Glebe Coroner's Court and he identified Adam Leigh as the shorter of the two men. On the same day, Lance Melbourne separately attended the Glebe Coroner's Court and separately identified Adam Leigh as the second man. And he also identified the accused on that day as being the taller man. … I am sure that my learned friend is going to say to you, "You can't be satisfied of any of the identification evidence by Martin and Melbourne because they got it so wrong with Adam Leigh." And our response to that, ladies and gentlemen, is this: the fact that the second man may not be Adam Leigh would not cause you to reject the identification of Caroiine Byrne and the accused because of the presence of the Vitara. The Vitara is an essential part of that identification. Without a shadow of a doubt, the Vitara was there that night. Of course, those people have given evidence about it being there also at lunchtime and in the late afternoon. If the Vitara was there, Caroline Byrne was there; if Caroline Byrne was there, what an amazing coincidence that she is with a man who so closely fits the description of the accused. We submit that you would be satisfied that Caroline Byrne was in Watsons Bay at lunchtime and then later on, which I will come to, and that the accused was with her at lunchtime on the 7th and later on . We now come to the evidence of Wednesday evening. That, of course brings us to the evidence of Mr Doherty and Fairlie Kingston. Sorry, I have been reminded, ladies and gentlemen, that there is some additional evidence about the green Bentley. We submit to you that the additional evidence about the Bentley is not of much evidentiary value. Mr Melbourne gave evidence that at about one or two hours after the second sighting of these three people, at about 4.30 or 5pm, he saw a green Bentley in Watsons Bay, which is around the same time that the Vitara is sighted. Ms Munro saw a racing green Bentley one day at around that time with a young blonde man driving, who looks similar to the accused, either late morning or early afternoon. Now, of course, they have said that they saw, I think they said they saw a two-door Bentley, and Mr Rivkin had a four-door Bentley. But, ladies and gentlemen, it would be very easy to mistake the number of doors. If you look at Mr Samartis's evidence, he says that the accused was driving a green Bentley that day and it was a two-door Bentley, which, of course, is wrong, it was a four-door. [655] (Emphasis added.)
The sighting of a green Bentley at Watsons Bay on 7 June 1995 was one of a number of aspects of the evidence used to support the Crown case that the plaintiff was present at the Gap on the afternoon and evening of 7 June 1995 with Ms Byrne, there being evidence that Mr Rivkin owned a "green Bentley" that the plaintiff was known to drive.
In his opening address the Crown Prosecutor said: [656] These two men [Melbourne and Martin] also saw a green Bentley in the area at that time. Now, they thought it was a two-door green Bentley. Mr Melbourne's partner, Sandra Munro, also saw a green Bentley in the area being driven by the man who fitted the description of the accused. One of the Rene Rivkin vehicles, which the accused would often drive, was a green Bentley, a four-door green Bentley.
In his statement of 6 August 1996, after describing seeing a woman (who he later described as Ms Byrne) in company with two men at around 1pm and then the same people around two hours later, Mr Melbourne said: Later that same afternoon I saw a green two door Bentley. It was the current series. I have been involved in the car industry for 25 years. I'm particularly interested in vehicles such as that. The Bentley was driving north on Military Road and heading towards the Watsons Bay Hotel. There was only the driver in the Bentley. I can't describe the drive[r] only that it was a male. [657] (Emphasis added.)
In his statement of 6 August 1996, also after describing seeing a woman (who he later described as Ms Byrne) in company with two men between 12 and 1pm, Mr Martin said: Later that afternoon, I'm not sure of the time, I saw a dark green two door Bentley, a new model one, drive past the 'Bad Dog Café' in which I was working at the time. I was near the street side window and I looked out of the window as the Bentley drove past. The Bentley was heading in the direction toward the Watsons Bay Hotel. I didn't take note of who was in the car at the time. I think it had black and white number plates. I think I have seen this Bentley around before because there are only a few Bentleys in Sydney and two of them are green of this model. [658] (Emphasis added.)
In her statement of 28 March 2008, Ms Munro described seeing a green Bentley on or around 7 June 1995. She said: 7. During the telephone conversation that I had with Detective Sergeant Paul QUIGG on Wednesday the 26th of March 2008, I mentioned to him about seeing a dark green coloured 'Bentley' car on Military Road at Watsons Bay in the late morning or early afternoon in June 1995. When I say a dark green coloured 'Bentley' I can elaborate the colour of this car is actually called 'British racing green'. When I saw the 'Bentley' on this occasion, I was in the 'Bad Dog Café' working, as I stated in my first statement on the 17th of July 2000, the café first opened on the 10th of June 1995. Lance, Craig and I had been setting up the business for opening when I saw the 'Bentley it was travelling south on Military Road and the 'Bad Dog Café' which is located on the western side of Military Road at Watsons Bay. 8. As the 'Bentley' drove past the café, I saw only one (1) person in the car that was the actual driver. The driver of this car was a young blond haired male who was casually dressed; I cannot identify this clothing any further. Since this time, I have read and seen a large volume of photographs of Caroline BYRNE'S boyfriend Gordon WOOD, from all the photographs and all the electronic media footage of Gordon WOOD; I believe that Gordon WOOD was the driver of the 'Bentley' car at this time. [659]
A statement from David Mitchell dated 10 August 2001 was read to the jury. In the statement he said that he was the current owner of a green, Turbo R four-door Bentley previously owned by Mr Rivkin. In his statement he attached pictures of the Bentley and describes the differences between the four-door Turbo R Bentley, the two-door Continental R Bentley and the two-door Corniche Rolls Royce.
David Cameron gave evidence at trial that he worked for the owner of a two-door Continental R Bentley. He confirmed that the car was one of only three in the world and that it was being restored at McMillan Bentley in Five Dock on 7 June 1995. [660]
John Singleton gave evidence at trial that between 1994 and 1997 he was the owner of a two-door Continental R Bentley. He gave evidence that as at 7 June 1995 he was living in Bondi and would drive his Bentley between Bondi and Camp Cove to visit his children. He also gave evidence that on occasion he would use a driving service to pick him up or drive him home from work in his Bentley. [661]
Messrs Martin and Melbourne gave evidence at trial largely consistent with their statements regarding their sighting of a green Bentley, save for the fact that Mr Martin estimated the time he saw the vehicle at around lunch time, whereas in his statement he said it was slightly later in the afternoon. Mr Martin gave evidence that: One of our clients at the restaurant, John Singleton, had one [a two-door Continental R Bentley] and I knew, by reputation, that Rene Rivkin had one. When I saw this car, I recognised it as not being John's. [662]
When Mr Martin was cross-examined, he said that the basis for his belief that Mr Rivkin had a two-door Bentley was anecdotal. He gave evidence that he did not recall anyone showing him photographs of any Bentleys that belonged to Mr Rivkin. [663]
Mr Melbourne gave evidence that the Bentley he saw drove past him as he was standing on the edge of Gap Road. As to the driver of the Bentley, he said: Well, I knew that John Singleton owned a Bentley, but it wasn't him. I just got a - sort of didn't take that much notice. [664]
Before Mr Tedeschi commenced his closing address, the following interaction occurred with the trial judge: CROWN PROSECUTOR: I think Ms Munro gives evidence that she saw a Bentley at around the time the Vitara had been parked there. She can't be more specific than that. But either Mr Martin or Mr Melbourne gives evidence that on the day that the Vitara was parked there, that they saw a green Bentley being driven by someone other than Mr Singleton. HIS HONOUR: Yes. CROWN PROSECUTOR: Of course, there is the issue of whether it was a two-door or a four-door they saw. HIS HONOUR: It is not an issue. They say it was a two-door. CROWN PROSECUTOR: They say it was one and Mr Rivkin owned the other, whichever it is. HIS HONOUR: Rivkin owned a four-door. They said this was a two-door, and they say they know about these cars. CROWN PROSECUTOR: They do. They do. [665]
In his closing address Mr Tedeschi referred to the green Bentley as follows: We submit to you that the additional evidence about the Bentley is not of much evidentiary value. Mr Melbourne gave evidence that at about one or two hours after the second 40 sighting of these three people, at about 4.30 or 5pm, he saw a green Bentley in Watsons Bay, which is around the same time that the Vitara is sighted. Ms Munro saw a racing green Bentley one day at around that time with a young blonde man driving, who looks similar to the accused, either late morning or early afternoon. Now, of course, they have said that they saw, I think they said they saw a two-door Bentley, and Mr Rivkin had a four-door Bentley. But, ladies and gentlemen, it would be very easy to mistake the number of doors. If you look at Mr Samartis's evidence, he says that the accused was driving a green Bentley that day and it was a two-door Bentley, which , of course, is wrong, it was a four-door.
He concluded by saying: We concede that the evidence about the Bentley is a little bit wishy-washy and it pales into insignificance when compared to the evidence about the Vitara, the descriptions of the people, and the identification of them. [666]
Det Insp Wyver gave evidence in these proceedings that at least one of either Mr Martin or Mr Melbourne had mentioned a green Bentley prior to giving their statements of 6 August 1996 but that the 1996 statement was the first time that there was any record made of what they said about it. He said that Mr Samartis had raised a green Bentley in his statement. He said that he did not raise the Bentley with either Mr Melbourne or Mr Martin prior to them both making reference to it in their statements. Det Insp Wyver acknowledged, however, that he knew of the issue of the green Bentley prior to Mr Melbourne and Mr Martin referring to the car in their 1996 statements because Mr Samartis had raised the Bentley in a police interview of 14 June 1996. Det Insp Wyver said he spoke to the plaintiff about a two-door model green Bentley but was told that he drove a four-door model.
Mr Tedeschi dealt with the issue of the green Bentley in his statements of 13 October 2016 and 16 February 2017. In the February statement he said as follows: There was also other evidence to support the fact that the plaintiff had been in the vicinity of Watsons Bay at the time of the observations by Mr Martin and Mr Melbourne. That other evidence consisted of the sighting of a green Bentley by Mr Martin and Mr Melbourne at around the time of their observations during the afternoon on 7 June 1995. Mr Martin and Mr Melbourne described it as a green, two-door Bentley. At that time, the plaintiff frequently drove a green four-door Bentley owned by his employer, Mr Rene Rivkin. There was evidence at the trial about how rare both types of green Bentley were in Australia at that time. I took the view that the sighting of a green Bentley was some evidence to support Mr Martin and Mr Melbourne in their identification of the plaintiff as having been at Watsons Bay on that day. The fact that they described it as a two-door Bentley, whereas Mr Rivkin's Bentley was a four-door one, was capable of being explained. That is precisely what I did during my closing address on this point. [667]
In his statement of 13 October 2016 he stated that Mr Martin and Mr Melbourne saw two cars: a white Vitara and "a green Bentley (which was one of Rene Rivkin's cars which Gordon Wood would drive)". [668]
Mr Tedeschi said that he was not intending to suggest in his October 2016 statement that the Bentley Mr Martin and Mr Melbourne saw belonged to Mr Rivkin, but rather that they saw "a Bentley", and that Mr Rivkin also owned a Bentley, which the plaintiff was known to drive. He said that that part of his statement had been "badly expressed". [669]
Mr Tedeschi gave evidence that, in his view, the significance of the Bentley was that it provided "significant corroboration of Martin and Melbourne's identification of [the plaintiff] and Caroline Byrne having been seen at Watsons Bay at around lunchtime on the day prior to her death". [670] He was cross-examined as follows: Q. This evidence actually had some significance, didn't it? A. That is, about the green Bentley, because if it was Mr Rivkin's Bentley that Melbourne or Martin saw it might in fact be used to suggest that my client had been at The Gap during the afternoon of 7 June 1995. That was the significance it had, wasn't it? A. The true significance of the evidence was that in considering the accuracy of Martin and Melbourne's identification evidence of your client the jury could take into account the fact that these two men had seen two vehicles in the vicinity, one was the white Vitara, which Caroline Byrne drive a white Vitara at that time, and the other one was a green Bentley, and Mr Rivkin had a green Bentley which your client drove at that time. So its significance was in providing significant corroboration of Martin and Melbourne's identification of your client and Caroline Byrne having been seen at Watsons Bay at around lunchtime on the day prior to her death. Q. Yes, but the point is if in fact it was someone else's car or someone else was driving it, it went nowhere, did it? A. It was the combination of all of those pieces of evidence that was of significance, and the way that I addressed the jury was that in considering Martin and Melbourne's evidence they could take into account the observations about these two vehicles, and there was other evidence as well that they could take into account. Q. The only significance it had was if my client was driving that Bentley, that's right, isn't it? A. The only significance was to prove that your client had been at Watsons Bay at lunchtime on that day. Q. Or in the course of the afternoon, I think you would agree, wouldn't you? A. Yes. [671]
Mr Tedeschi accepted that during the course of the trial it was clear to him that Mr Rivkin owned a four-door and not a two-door Bentley, and that there was nothing either Mr Martin or Mr Melbourne said in their evidence to suggest that they had seen anything other than a two-door Bentley, or that they might have confused the type or model. In adducing this evidence Mr Tedeschi did not suggest to them that what they had seen was a four-door Bentley rather than a two-door Bentley, nor did he give them the opportunity to reflect upon the certainty of their observations. He gave the following evidence: Q. You would agree with me, wouldn't you, that both Melbourne and Martin had repeatedly said that the car in question was a two door British racing green Continental R Bentley. A. Don't think they both said Continental R, but they both said it was a two door green Bentley. Q. You never asked either of them, did you, whether the car they saw was a four door car? A. That would have been cross‑examination by me of my own witness. I don't think it would have been permitted. Q. You would have been perfectly capable of putting in non‑leading form a question that raised the query whether it was some other configuration of car, wouldn't you? A. They had given evidence that it was a two door car. I didn't think it would be appropriate for me to ask them questions to suggest that it was otherwise. HER HONOUR Q. You might have asked them whether there was any observable difference aside from the number of doors, between a two door and a four door Bentley. I'm not suggesting you should have, but you could have, couldn't you? A. Suppose I could have, your Honour, yes. MCCLINTOCK Q. You see, so far as this evidence ‑ as anyone who heard this evidence can tell, there wouldn't have appeared to be any issue at this stage as to whether this car, the car they saw, was anything other than a two door Bentley, would there? A. I think that you misconceive the position of this evidence. It was a classic circumstantial case where the jury were presented with evidence from a number of different sources with the view to proving that your client had been at Watsons Bay on that afternoon. There was - there were a whole lot of pieces of evidence, some of which had some issues associated with them, including this evidence, because they said that it was a two door Bentley and clearly Mr Rivkin's was a four door. But the jury were entitled to have that evidence to assess whether the totality of all of the evidence convinced them that your client had been at Watsons Bay. The evidence consisted of the identification evidence from Martin and Melbourne, which had its own issues. It consisted f their observations of the white Vitara and there was no suggestion that anybody else's white Vitara had been in that vicinity other than Caroline Byrne's. Then there was the evidence of the, of the green Bentley and then, in addition to that, there was the fact that your client claimed, at that time, falsely claimed to have been driving Graham Richardson to lunch with Rene Rivkin and that - we were able to prove that that was demonstrably false. So our, our submission to the jury on that was that he deliberately told a lie as to where he'd been on that day. So the totality of all of that evidence was, in my view, legitimately placed before the jury to enable the jury to have all of the evidence to decide whether or not your client had been at Watsons Bay at - between about 1pm and 3pm, thereabouts, on the afternoon of 7 June 1995. Q. I think you can take it that I am aware that the case being made against my client was a circumstantial one. The point about the Bentley, though, is that as you've agreed previously, I suggest, this evidence went absolutely nowhere if the Bentley wasn't (a) a four door Bentley owned by Mr Rivkin and (b) driven by my client. A. What I'm suggesting is it was part of the circumstantial case to prove that your client was at Watsons Bay with Caroline Byrne on the day just prior to her death. And so you cannot take each individual piece of evidence on its own and pick it to bits and say, "Well, I wouldn't accept that." The jury would have - were told many times, "You look at the totality of the evidence" in deciding whether or not you're satisfied that the evidence proves a particular point. Q. You wouldn't suggest that a circumstantial case - the fact that it's a circumstantial case entitled you to misrepresent the quality of the evidence, would you? A. No, I wouldn't. [672]
That being so, he was invited to explain the basis upon which he considered he was entitled to advance the submission in his closing address that Mr Melbourne, Mr Martin and Ms Munro may have been mistaken when they said they saw a two-door Bentley and that it may have been a four-door Bentley, as to which he said: What I was suggesting is that if they were mistaken it was some evidence to go to the totality of all the evidence to prove that Gordon Wood had been in the vicinity of Watsons Bay during that - those two hours in the afternoon of the day of her death. [673]
Mr McClintock then asked the following questions: Q. I'm going to take you to what you say about some others. I'm going to give you every opportunity to answer this but right now I want you to answer this question: didn't it occur to you at the time you made the statement about mistaking the number of doors that it completely missed the point? Did that occur to you? A. No. Q. It missed the point in the sense that the car in question or the cars in questions were completely different. It wasn't merely two-door versus four-door; it was a two-door sports car, so to speak, versus a four-door stretch limousine; that's right, isn't it? A. I don't think it was a sports car at all. Q. Perhaps it wasn't a limousine but it was certainly a bigger car, that is, the four-door - A. It was neither, neither a sports car nor a limousine. … Q. …You wouldn't suggest though that your right and I accept it's a right to - I accept that no counsel is bound by absolutely everything a witness says, but of course, that doesn't give you and didn't give you the right on day 47 of this trial to make a proposition for which there was no evidentiary support, did it? A. I believe that I was perfectly entitled to make that submission and I'm, I'm sure that I was sure at that time and I'm still sure now that it's perfectly appropriate for any counsel to suggest that a witness' observations may be partially in error and to suggest to the jury what, in fact, the observation may have been, particularly if it accords with, with other evidence in the trial and, and it's precisely what I was doing here. Q. It was a little drop of illegitimate poison that you were putting into the jury's mind, wasn't it? A. I disagree. [674]
Mr McClintock put the proposition, "what you were doing there was really quite wrong and improper. Do you agree with me or not?" [675] Mr Tedeschi rejected that proposition.
It is the plaintiff's case that, in seeking in his closing submissions to use the evidence of Mr Martin and Mr Melbourne about the green Bentley as a link to the plaintiff by suggesting to the jury that the witnesses may have been mistaken about the number of doors, Mr Tedeschi's submission was contrary to the evidence and deliberately advanced without fairly representing all of the evidence bearing on the question. The plaintiff further submitted that the evidence of Messrs Martin and Melbourne about the green Bentley, in truth, added no weight at all to the identification evidence.

[117]

Conclusions on the issue of the green Bentley

I am well satisfied that it was not open to Mr Tedeschi to suggest to the jury that they might find that either Mr Melbourne or Mr Martin were wrong or mistaken about the number of doors on the Bentley they saw, whether by suggesting that another person had confused the two vehicles or otherwise. Their evidence simply did not admit of error in circumstances where the difference between the two vehicles were exhaustively ventilated and their capacity to know the difference between the vehicles not challenged by the Crown. However subtle might have been Mr Tedeschi's suggestion that the green Bentley added weight to the identification of the plaintiff by Mr Martin and Mr Melbourne at Watsons Bay on 7 June 1995, it was not a submission that he should have advanced. Mr Tedeschi's attempts, in his evidence to justify his right to have made that submission, reflect what I regard as a failure to appreciate a significant error in his forensic reasoning.
For reasons which I will return to develop later, this issue and others raise real and persisting questions about Mr Tedeschi's competence as a prosecutor at the plaintiff's trial. That said, I accept the defendant's submission that I should treat Mr Tedeschi's reference to the green Bentley in his closing submissions as an error made in a complex of forensic decisions he made in closing the Crown case, and that I would not conflate that error with proof of malice or treat it as evidence from which I would find an absence of reasonable and probable cause in application of the subjective test for proof of that element.
I should add for completeness, the identification of the plaintiff by Mr Melbourne and Mr Martin at the invitation of the Crown in the course of the trial in what was described as the "dock identification" was also said by the plaintiff to reduce the probative value of the evidence of identification generally in the course of the trial. While that might be so, it was not put to Mr Tedeschi that inviting a dock identification was a deliberate ploy by him to endeavour to bolster the identification evidence. In fact, there was no cross-examination of him in these proceedings at all about it.

[119]

The submissions of the parties on the question of suicide and Mr Tedeschi's obligations in dealing with it

In his final submissions, the plaintiff sets out (and at considerable length) all of the evidence favouring the plaintiff on the question whether the evidence at trial had excluded suicide as a reasonable possibility. I do not consider it necessary to review that evidence. In large part, it corresponded with the evidence that had been assembled in the course of Strike Force Irondale, making obvious allowances for some variation in the manner in which witnesses expressed themselves when giving their evidence orally and under cross-examination at the plaintiff's trial. The defendant makes the point in its submissions that the question in these proceedings is not whether the evidence taken as a whole had the capacity to exclude suicide as a reasonable possibility (the view ultimately taken by the Court of Criminal Appeal in reviewing the plaintiff's conviction under s 6(1) of the Criminal Appeal Act was that it did not), but whether the plaintiff has established that there was an insufficiency in the evidence, viewed prospectively, such as to make good his claim that the prosecution was initiated by Mr Tedeschi and maintained without reasonable and probable cause.
The defendant also submitted that it is untenable for the plaintiff to urge this Court to find that the available evidence at the time proceedings were commenced was incapable of excluding suicide beyond reasonable doubt, in circumstances where that submission was not advanced by defence counsel at trial and where the trial judge permitted the case to proceed to the jury for verdict. In short, it is the defendant's position that the question of suicide (with the Crown at all times having assumed the obligation of excluding that as the manner of death beyond reasonable doubt) was a factual issue which it was open to Mr Tedeschi to treat as an issue for the jury's determination, and that there was nothing in his conduct of the trial that so overwhelmed that issue that it can be said that the proceedings were maintained without reasonable and probable cause.
In his submissions, the plaintiff points to the evidence at trial of various call charge records which related to calls placed by Ms Byrne on 6 June 1995 to support what he submitted was the inference that she "may have been at the Gap on the Tuesday night at around 7.30pm", [676] but not in the company of the plaintiff, in support of the submission that she was in some way rehearsing her suicide. That is not a submission I propose to give any countenance to. It does not, in my view, have any relevant bearing on the issues that arise for determination in these proceedings. As I have already made clear, I will not be offering any concluded view as to the manner of Ms Byrne's death, including whether or not she committed suicide.
What is relevant is the complaint that Mr Tedeschi used the same telephone evidence for an impermissible purpose by suggesting that the phone call placed by Ms Byrne within the user area of "North Shore" (a catchment area which includes Watsons Bay) supported the possible explanation that the phone call was made from the Gap on 6 June 1995 by the plaintiff by taking: [H]er phone to the Gap and ma[king] a call, thinking to himself, 'this is going to support my case that she's committed suicide so I can say she's been out at the Gap the previous night'. [677]
It was clear in the evidence before me, although not a matter that was taken issue with by defence counsel at the plaintiff's trial, that there was no evidence at all that the plaintiff had gone to the Gap and made a call to support his case in advance of killing Ms Byrne that she had committed suicide.
The plaintiff submitted in these proceedings that there was no other rational explanation for that submission other than that Mr Tedeschi was "attempting to obtain a conviction by deceit", [678] and that the submission was: [S]trong evidence that he was maintaining the prosecution for a sole or dominant purpose other than the proper invocation of the criminal law, that is, maliciously. [679]
The defendant complains that was not put to Mr Tedeschi in breach of the rule in Browne v Dunn. While I accept an allegation of that serious kind was not put in terms, it was addressed by Mr Tedeschi in the sense that he conceded in his evidence that he could not offer an explanation as to why he would advance that submission in the absence of any evidence to support it, while at the same time denying he was intending to mislead the jury. It is obviously wholly inappropriate for a Crown Prosecutor to advance any submission that is not properly grounded in the evidence. While I regard the submission as one that might well have excited a strenuous objection from defence counsel for that reason, Mr Tedeschi's candid admission that it was a submission he could not justify (and, it might be added, in circumstances where it was not pleaded as a particular of malice, giving him the opportunity to consider the issue before giving evidence under cross-examination), and his candid acceptance of the proposition that it was not a submission that should ever have been made, goes some considerable distance, in my view, to treating it as a submission that is more readily explained by Mr Tedeschi's unintended overreach in the course of developing closing arguments in a complex and factually detailed Crown case.

[120]

Mr Tedeschi did not lead evidence of Ms Byrne's 1992 hospital admission

The approach Mr Tedeschi took to Ms Byrne's 1992 hospital admission was the subject of criticism by the plaintiff as part of his challenge to Mr Tedeschi's conduct of the trial generally. I propose to deal with the competing position of the parties on that issue now in the context of considering the plaintiff's submission that the Crown had failed to exclude the reasonable possibility that Ms Byrne committed suicide, in support of the finding the plaintiff urges the Court to reach, that proceedings were initiated in the absence of reasonable and probable cause for that reason.
The plaintiff contends that Mr Tedeschi deliberately omitted to tender the hospital and medical records from Ms Byrne's hospital admission in April 1992, aware that they undermined the Crown case that the suicide hypothesis for her death in June 1995 had been excluded, and concerned that they would put into question whether the Crown could discharge its evidential obligations of disproving suicide beyond reasonable doubt. In taking that approach, the plaintiff contends that Mr Tedeschi breached his legal and ethical obligations as a prosecutor.
The fact that Ms Byrne was admitted to hospital in April 1992 after overdosing on prescription sleeping tablets was openly disclosed to investigating police by Ms Byrne's father early in the police investigation. Although it is not entirely clear, it would seem that that was apparently as a consequence of the plaintiff informing police that Ms Byrne had previously attempted suicide. It is also clear from the proceedings before me that the hospital records relating to that admission, together with a referral letter upon Ms Byrne's discharge from hospital to Dr Vrjosseck, consultant psychiatrist, and her notes of successive consultations over a period of weeks (inclusive of a reporting letter from the psychiatrist on 10 May 1992 to the referring doctor) were either part of the brief of evidence as served, or disclosed as part of the Crown's duty of disclosure before the trial, either independently of Ms Yule's report (where the records are considered by her at some length) or as part of that report.
The Crown did not call Dr Vrjosseck as a witness in the Crown case or the resident medical officer who referred Ms Byrne for psychiatrist assessment, and did not tender the hospital records. There is no suggestion that Mr Terracini asked that the witnesses be called and that Mr Tedeschi refused that request.
The way Mr Tedeschi chose to deal with the circumstances relating to the 1992 hospital admission and the course of treatment that followed was to adduce evidence from Ms Byrne's father as to what Ms Byrne told him were her motivations or intentions in overdosing on sleeping pills and what he otherwise learnt from her doctors.
Mr Tedeschi opened the Crown case by informing the jury that Ms Byrne's mother had suicided by ingesting prescription tablets in March 1991 as a result of a surgical cosmetic operation which resulted in severe disfigurement. The Crown went on to say: [Mrs Byrne] was terribly distressed at the results of this operation and terribly embarrassed by it, and, in fact, apart from her own doctor, the only other person in the world who knew about this operation was her husband, Tony Byrne. She didn't even tell her own children. [680]
Mr Tedeschi led from that narrative into the circumstances relating to Ms Byrne overdosing on sleeping tablets a year later. As to that issue, Mr Tedeschi said as follows: Caroline was taken to hospital. At all stages she remained fully conscious, although sleepy. Later at hospital, she had told her father that she had not intended to do herself any harm, but was just feeling very down about the death of her mother. The Crown case is that, clearly, this was a cry for help. Caroline assured her father that if she ever felt bad again that she would come to him and discuss things. She was released from hospital the next day. [681]
I note the reference to her motivations being "a cry for help" was the conclusion Ms Yule attributed to the treating doctors. Although in his evidence Mr Tedeschi makes no reference to Ms Yule's report being the source of that submission, it is an available inference.
Mr Tedeschi went on to submit in his opening address that it was only in April 1992 that Ms Byrne and her brother and sister were told about the circumstances which preceded their mother's suicide, with Ms Byrne apparently realising then, for the first time, why it was that her mother had never hugged her. He said: Caroline progressed extremely well after this incident and came to terms with the death of her mother. [682]
Mr Byrne's evidence-in-chief is extracted below. It is largely consistent with the way the Crown opened its case: Q. That day I think was a Monday? A. A Monday, the 27th, yes. Q. And at about 10.30am, whilst you were at work, did you receive a telephone call from Caroline? A. Yes, I did. Q. Was that unusual? A. No, not unusual to get a call from Caroline. Q. Did you have a conversation with her on the phone that was, at first, a very general conversation? A. Yes. Q. And then did Caroline say something to you? A. Yes. She just said in a general way that "life can be cruel". We were talking about her mother. When her mother died, Caroline was in the final year at Sydney University, and she kept on with her studies and graduated. She still grieved with the rest of us, but she was occupied and put off her grieving until she graduated. And when she was in the middle of the grieving, that was about the 27th of July when she rang me, and I told her that, "It's just time, love", I said, "It's time, you know." And she said - she then told me that, like I said, that "life can be cruel". But I said, "Time will heal, it's just a matter of time", and, "We will be all - we will reach acceptance and everything will be fine." And she said, "When will you be coming home?" I said, "I'll be home at about 12.30 for lunch." She said, "I'll see you then." Q. Was there anything in that phone call that caused you any concern? A. Nothing whatsoever, just the fact that we were both sharing the grief that - Q. Did you arrive home at about 12.30? A. Yes. Q. And when you walked in, was the bathroom door closed? A. Yes, the bathroom door was closed. Q. Did you notice a light? A. And the light was shining underneath the door. The bathroom is the first done door on the left when you walk in. Q. Did you call out to see if she was in the bathroom? A. I did. I said, "Are you in there Caroline?", and she replied, "Yes". Q. Did you then go to the kitchen? A. Yes, to get to the kitchen, you have to walk past Caroline and Deanna's bedroom and, as I walked past, I noticed a number of little white pills on the floor, which alarmed me, and I walked into the bedroom and saw the little white pills on the floor and the cap and the base of a prescription pill container. Q. So did you go back to the bathroom? A. I then opened the bathroom door and the water was half full. Q. The bath was half full? A. Yes. Q. Was the door locked or unlocked? A. It was unlocked. Q. And was Caroline in the bath? A. Caroline was in the bath sound asleep. Q. Was she sound asleep or-- A. Well, she was asleep and she opened her eyes when I pressed my lips to hers to give her mouth to mouth, in case - and she opened her eyes and - and I just checked her over, as I knew what to do , because of my experience in the fire service. Q. And did you call an ambulance? A. I then put a towel around her, a large towel around her shoulders, and she's sitting up, and then I rang the ambulance. But I told them that it was, it was not life - I told them that it was just - I needed the ambulance, but it wasn't - Q. Life threatening? A. Life threatening, no. Q. Did the ambulance come and take her to Sydney Hospital? A. Yes, the ambulance came and took her to Sydney Hospital. Q. During that time, did she remain conscious? A. She remained conscious, yes. Q. Later that day, at about 3pm, did you go to the hospital with your other children? A. Yes. We all went there to the hospital, and Caroline was sitting up in bed, with an embarrassed smile on her face, and she just said - she just said, "Sorry, daddy, but I was just feeling down about mum." Q. Did she say anything else? A. She said that she would be coming home in the morning. Q. Did she say whether or not she intended doing herself-- A. She said "I had no intention of harming myself. It was just that I was feeling sad about mum." Q. Okay. Now, was she released from hospital the next day? A. She was released from hospital the next morning, yes. Q. And, after that, did you have discussions about what had happened? A. Yes. We had discussions and she - we had discussions and she was - she was referred to a counsellor. And I attended the first session with her, and I could tell that Caroline was 100 per cent then, when we went to the counsellor. And I did then inform both my daughters, Caroline and Deanna, that the reason for their mother's death and the reasons for her behaviour 10 years before her death , for the 10 years leading up to her death , for her at times unusual behaviour. Q. All right. How did Caroline react to being told about her mother's suffering and about the operation that had gone wrong? A. Caroline's reaction was more than Deanna's. Deanna stood there and accepted it. Caroline put a smile of, I'd say, relief on her face, and said, "Oh, that's why when I'd go to put my arms around mum, she'd push me away." Q. How did Caroline progress from then on? A. From that time onwards, Caroline went through the grieving stage. She reached acceptance. She began working at June Dally-Watkins and she became a very - she blossomed into a - I can only describe as a very happy, outgoing girl that any father would be most proud of. And she also had another quality, which was loyalty. [683]
The plaintiff in these proceedings (although not at trial) submitted that Mr Byrne's evidence was in conflict with the hospital notes and other medical records and that his evidence was "unreliable" for that reason and should have been treated as such by Mr Tedeschi.
The first issue said to reflect Mr Byrne's unreliability appears in the discharge letter where, in contrast to Ms Byrne telling her father she did not intend to hurt herself, under "Finding (clinical/investigations)" the following is recorded: Admitted via [accident and emergency] with collapse at home following … ?25 x 10mg Temazepam. No suicidal intent, although did want to hurt herself. [684] (I venture the opinion that "self-harm" was obvious since there could be no suggestion that the ingestion of the tablets was accidental. The more significant question is whether it was an attempt at suicide.)
A further issue emerges from both Dr Vrjosseck's clinical records and her letter to the referring medical officer of 10 May 1992, which is also said by the plaintiff to put into question Mr Byrne's evidence that he attended the first session with Dr Vrjosseck and that he (Mr Byrne) thought his daughter was "100 per cent" well.
In the reporting letter on 10 May 1992, Dr Vrjosseck reported that at interview on 29 April 1992 (the day following Ms Byrne's discharge from hospital) Ms Byrne said she was "really depressed and had been, for approximately two weeks". [685] Dr Vrjosseck went on to say: She said that for several weeks prior to this suicidal gesture she had been losing confidence, had experienced a loss of self-esteem, and felt unable "to do anything". [686]
Dr Vrjosseck went on to report that a strong family history of suicide had been reported and that her mother committed suicide by overdose. She recorded her finding: I felt that she was depressed and prescribed anti-depressant medication, viz. Prothiaden in gradually increasing dosage and offered to see her on a regular basis. Her vegetative symptoms have responded markedly to the medication and she is currently stabilised on 150mgms prothiaden nocte with a more positive approach and the commencement of formulating plans for her future in her supportive family. [687]
The notes of consultation, both before the reporting letter and for the weeks that follow through to the last consultation on 27 July 1992, are broadly supportive of Dr Vrjosseck's insights. It would appear from the notes of consultation that Ms Byrne was also provided with a prescription for anti-depressant medication in the last session. As I understand it, there was no evidence led at trial to suggest that Ms Byrne was maintained on anti-depressant medication from July 1992 through to June 1995, or for any interval of time over that three year period. There is nothing in Dr Pan's consultation notes to suggest otherwise. Neither is there any evidence of Ms Byrne seeking medical intervention for any resurgence of symptoms of depression after 1992, or seeking a referral to psychological or psychiatric counselling before June 1995. What is clear from Dr Pan's notes is that in June 1995 Ms Byrne did report feeling depressed and that she had received assistance in the past from a course of counselling, which appears to have prompted Dr Pan's referral to Dr Sippe.
At trial, Mr Terracini in cross-examination invited Dr Pan's confirmation that she was unaware of Ms Byrne's 1992 admission to hospital in 1992 or the referral to Dr Vrjosseck at that time. Dr Pan also confirmed she was not aware of the medication that had been prescribed to Ms Byrne or of Ms Byrne's mother's suicide in 1991. Mr Terracini did not invite Dr Pan's consideration of the hospital records. Neither did he invite her comment on the relevance, if any, of the history of the 1992 incident, and the way it was treated by Dr Vrjosseck, to the clinical conclusion that Dr Pan reached that Ms Byrne was not a suicide risk in June 1995. That was clearly a course open to him as defence counsel.
It is the plaintiff's case, consistent with settled authority (see Whitehorn v R (1983) 152 CLR 657; [1983] HCA 42) and the relevant Prosecution Guidelines, that Mr Tedeschi was obliged to tender the hospital and related medical records in discharge of his independent obligation to adduce relevant, admissible and cogent evidence, irrespective of whether the evidence ran counter to the Crown case and irrespective of any approach defence counsel might take. The plaintiff submitted that the Court would conclude that Mr Tedeschi made a tactical decision not to tender the evidence and to take the approach of adducing evidence of Ms Byrne's previous hospital admission and the circumstances surrounding it through her father, aware that his account was different from what the medical records reflected and that his evidence was largely to a benign effect on the issue of a predisposition to suicide.
The plaintiff went on to submit that had Dr Vrjosseck's report been adduced in evidence, it would have supported the plaintiff's suicide hypothesis in the sense that it would have been open for the jury to find that in June 1995 Ms Byrne had suffered a relapse of her pre-existing depressive illness and had committed suicide as a way of dealing with it.
The defendant sought to defend Mr Tedeschi's decision not to tender the hospital and other medical records by putting in contention whether his failure to do so was in breach of his prosecutorial obligations at all. In the defendant's submission, Mr Tedeschi's evidence to the effect that he regarded his obligations to be fully discharged by having ensured that there was full disclosure of the evidence was what the defendant submitted to be "the reality of the situation" in the atmosphere of the trial.
Mr Tedeschi's evidence in that regard ought be set out in full: A. … Sometimes one makes a decision that if a matter is of sufficient importance to the defence that they will raise it. It's not necessary for me to prove the defence case or to, to initiate the defence case. I would, I don't recall but I would imagine that this is material that I would have thought legitimately that I didn't need to tender; that if the defence thought that it was relevant to their case, they had it. My obligation was to ensure that there had been full disclosure. I considered that there had been, and it was for Mr Terracini to make a decision whether he wanted to lead any of this. I, I didn't consider that it was my obligation. Q. You said in your answer, an earlier answer a few minutes ago, that the Crown had excluded suicide and that meant you didn't have to tender this. I think that's a fair summary of your evidence. A. No. I said that one of the reasons why I felt that the Crown didn't have an obligation to tender this material is because suicide had been excluded. HER HONOUR Q. I need to understand this, I'm sorry. We can view this in a theoretical light, which is one thing. We can view it, and I need to consider it, in the actual light of the decisions that were made at the time. You said before seeing the records - and I accept that you hadn't been shown them - that you couldn't recall seeing the hospital records, and I would include in that category the report by the psychiatrist back to the treating doctor or the admitting doctor at the hospital. You said, in answer to the questions asked of you by Mr McClintock, it seems from what you're saying - and I hope I'm not getting the wrong impression - that you actually made a decision not to call Dr Vrjosseck or Dr Babidge, that is both treating doctors, in respect of the earlier hospital admission, having determined in your own judgment that the best evidence was that of her father and that the decision was made in those circumstances. You went on to say that you considered that it was a matter for Mr Terracini if he wished to have those documents before the Court, as providing a clinical perspective as it were, on the earlier conduct. A. Your Honour-- Q. Do you remember making that decision? A. I don't, your Honour. The situation is I don't recall whether I had these documents, but I assume that I did. And I don't recall what my thinking about it was now, but I assume - because that would be my normal practice - that I, if I was aware of these documents and, and they weren't led, I assume that I made a decision that it was sufficient for me to have before the jury that there had been this incident, in which she had taken tablets, she had been groggy, her father had come home, she knew her father was coming home, he had called the ambulance, she had been taken to hospital and she had said certain things to him afterwards. I thought that that was sufficient. Q. Am I right in thinking then, putting all of that together, that when you look at the documents today, as they have been visualised on screen, you remain of the view that as the prosecutor at trial you were not obliged to tender these materials as part of the evidence in your case? A. Yes, your Honour. HER HONOUR: Mr McClintock, that probably deals with that. You can go further, but it would seem to me that Mr Tedeschi will maintain, as he has in his evidence, that he did not consider it a matter for him, but rather a matter for defence counsel. [688]
The defendant also complains that although it was put to Mr Tedeschi that he had made a conscious decision not to adduce the evidence, it was not suggested to him that he did so for an improper purpose in breach of the cross-examiner's obligations in accordance with the rule in Browne v Dunn. That complaint is not in my view fairly made in circumstances where it was clear that the point of contention in Mr Tedeschi's cross-examination on this issue was whether the decision not to adduce the evidence was deliberate and motivated by malice, and he had every opportunity to deal with that allegation.
The defendant also submitted that even were the Court to be satisfied that, viewed retrospectively, Mr Tedeschi ought to have adduced the evidence, and that his failure to do so was in breach of his legal and ethical obligations, it does not necessarily follow that malice is established, since allowance must be made for his decision being the product of a mistake or a misapprehension of his obligations in the adversarial context that presented at trial, including where the plaintiff was represented by experienced senior counsel.
This aspect of the plaintiff's case was not pleaded as a particular of malice, although it was addressed in the plaintiff's closing submissions. Neither was it the subject of any complaint or consideration by the Court of Criminal Appeal in the appeal judgment. Neither of those matters are, of course, determinative.
For my part, having regard to the Crown's obligation to disprove suicide beyond reasonable doubt, I find it difficult to accept that the disclosure of the medical and hospital records is an answer to the separate, although allied duty imposed on Mr Tedeschi as the prosecutor to adduce direct evidence of Ms Byrne's 1992 admission by either tendering the documents or calling one of the medical witnesses. That said, in circumstances where there appears to be some continuing question as to whether Mr Tedeschi saw the primary records, as distinct from Ms Yule's summary of them and their effect, I am unable to conclude that he was aware of the full import of their contents at the time of trial which might have allowed for a positive and adverse finding that in failing to adduce them he acted deliberately in breach of his obligations.
In those circumstances, and although I regard Mr Tedeschi's continuing justification for not tendering the documents as lacking an appreciation of their relevance, I am not satisfied that his failure to tender them evidences malice on his part. I am inclined to the view that Mr Tedeschi's failure to tender the hospital and medical records is more satisfactorily explained by a misapprehension on his part that the records should have been tendered than by some improper motive.
In addition, although it might now be fairly said that the reliability of Ms Byrne's report to her father that she did not intend to hurt herself by overdosing on prescription sleeping tablets, and his evidence that she was "100 per cent" [689] well at the time of her first attendance upon Dr Vrjosseck might be in doubt, that does not cause me to doubt the reliability and accuracy of all that Mr Byrne says he was told by his daughter as the plaintiff invited me to find. Neither do I regard Ms Byrne's reported comment in Dr Vrjosseck's notes - "I feel terrible to see Dad" [690] - as compelling an inference that Mr Byrne was not at her first consultation with Dr Vrjosseck as the plaintiff submits I would find.

[122]

Wave activity and suicide

It was in the context of what the plaintiff submitted was the objective insufficiency of the evidence to exclude suicide that he submitted the reasonable possibility was open that it was the tide and swell that carried Ms Byrne's body and lodged it in Hole A. That being the case, in the plaintiff's submission it follows that on that scenario, the Crown had no evidence as to where Ms Byrne left the cliff edge in the environs of Watsons Bay or when that occurred, particularly as rigor mortis was well advanced when she was found.
As I understand his submissions, the plaintiff does not seek to make the case that the potential for wave activity to explain Ms Byrne's orientation in Hole A was a matter that must have been obvious from the materials available to Mr Tedeschi when he initiated the prosecution as a possible explanation for how she arrived at that location. Rather, it was the way the evidence evolved at trial which the plaintiff now suggests presented suicide as a reasonable possibility that the Crown was unable to exclude, such that it was not open for Mr Tedeschi to maintain the prosecution through to verdict having regard to that material.
Instead of attempting to render that evidence in a narrative way, I propose to extract the plaintiff's submissions in full: 302. The prosecution case was that Ms Byrne had died at around 11-11.30pm on 7 June 1995. The evidence in the trial was that it was high tide (of approximately 1.28m) at approximately 3am on 8 June 1995, with low tide at approximately 9am (of approximately 0.34m), with the actual peak and minimum occurring between the hour points. There was a very light breeze blowing west north-west. The deep-water wave record showed waves of up to 3.29m at 11pm on 7 June 1995 and waves of up to 3.05m at 5am on 8 June. While these would be expected to refract or defract or attenuate when they hit the Gap, there was no way of calculating the effect of waves hitting the jagged rocks and cliffline. The representative description of wave heights at the relevant time at the deep-water mark was between 1.90m (11pm 7th June 1995) and 1.66m (5am 8th June 1995). However, as the waves approached the coast the waves tended to get steeper and "perhaps slightly higher". 303. At approximately 4.40am, Sgt Powderly located Ms Byrne's body from the top of the cliff using a Mitrolux light. It was wet and slippery at the top of the cliff on the seaside of the fence. He was subsequently lowered down to the base of the cliff and found Ms Byrne's body. When he was at the base of the cliff at the point of recovery of the body, "a fairly large surge of water came in and I got wet...another couple of large surges of water came through and I got very wet". Sgt Powderly had to take shelter from the water. He gave evidence "The water kept surging up in different areas. I don't know the size of the sea that day, but I was conscious of it and that it was quite large, and that a lot of the holes around where - underneath where I was and where the body was, water kept surging up quite strongly". He later referred to "the amount of water that surged in" in the context of not being surprised that body parts were not found. He was "saturated and wet, and the wind that was coming in off the ocean was still bringing a mist in". 304. On the DVD taken on 7 August 2003 Peter Byrne described "the sea crashing in, it was quite a big swell ...". He described having seen "the heavy swell with waves breaking over the rocks and spray everywhere". This was at a time when he and the plaintiff were at the top of the cliff on 8 June 1995 at approximately 2am. 305. The effect of Sgt Powderly's evidence on this point was that at approximately 5am, at a time when the tide was receding from a high-water mark at 3am, the sea was "quite large" at the bottom of the Gap at the point where Ms Byrne's body was located. It is reasonable to assume based on the evidence that there were higher seas at 11pm (up to 3.29m waves at the deep-water mark), at which time the tide was lower but coming in, with seas continuing to be large at lam (up to 3m at the deep-water mark) when the tide was at approximately the same mark as it was at 5am. Further it is reasonable to assume that the water had indeed earlier proceeded further past the point of recovery of the body with the tide having risen to high at 3am. As the tide receded, the sea continued to be large with waves up to 2.44m at the high-water mark at 3am, up to 2.93 at 4am (when the tide was again higher than when Sgt Powderly was at the base of the cliff) and up to 3.05m at 5am, the approximate time when Sgt Powderly was saturated by water at the point of recovery of the body. 306. Both the scientific evidence of seas up to 3.29 metres at the deep-water mark at a time when the body was at the base of the Gap, coupled with the effect of hitting the rocks at the base of the Gap, on an outgoing tide, and the evidence of Sgt Powderly that when he was at the base of the Gap the sea was "quite large" was contrary to the submission of the Senior Crown Prosecutor that "there was a very slight swell that night". Even based on the evidence of the representative wave height at the deep-water mark, with some added height as the waves reached the shoreline, the sea could not be described as having been a "very slight swell", rather the evidence supported the description of the sea being "quite large" at the relevant time. The prosecutor also submitted that "The only evidence is that the water was going to the very base of the rocks at pyramid rock only and not washing over them "which did not take into account that the point where Sgt Powderly had been standing was in issue, that he gave evidence that he was saturated and that this was at a point in time approximately two hours after high tide. 307. The plaintiff submits that this evidence illustrates first that Mr Tedeschi again made a submission in opposing the tender of the 31 December 1999 photographs to advance his case that had no support in the evidence in the trial or in the brief of evidence. Irrespective of his intentions in making the submission it is evidence of an approach to prosecution that can only be explained, given his years of experience, by malice. 308. Further, the Crown did not obtain any evidence (expert or otherwise) from which to analyse the size and capabilities of the swell at the Gap between 11pm and 4:40am. The tide and swell information obtained for a limited period did not of itself provide any evidence about the ability or inability of waves to have brought the body to the Gap or moved the body. Evidence obtained after the prosecution was commenced from Dr Fulde could not exclude the reasonable possibility that the body was washed directly into Hole A on a wave. His evidence was limited and only tends to prove that the injuries sustained were consistent with landing head first in Hole A and less consistent with the particular possibilities he was asked. He was not asked to consider other possibilities. The fisherman Brunetta identified a large area where the scream may have come from that included an area adjacent to the ocean at high tide. Any fall into the ocean would be unpredictable making forensic analysis of her injuries meaningless. 309. Dr Fulde's evidence was also based on the reliability of Sgt Powderly's descriptions, assumptions as to Ms Byrne's shoulder width's (or chest) and did not consider any other hole at the Gap other than Holes A and B. The Crown evidence could not exclude that the force of waves or rigor mortis were what wedged Ms Byrne's body so tightly in Hole A (or where ever the recovery point was). The essential assumption on which the expert evidence excluding suicide was based could not be established. Objectively there was no relevant expert evidence to exclude suicide in the brief of evidence or led at trial. [693] (Citations omitted)
The defendant responded to those carefully articulated submissions with its own carefully articulated submissions as follows: 265. There was no evidence placing the tidal heights in the context of a range of tides, for instance being large, small or average. There was no evidence of an expected height of water at the base of The Gap in the context of tidal information. That is because, as Mr Nalty said in his evidence, there were no records of tidal information at The Gap. That is not the fault of the police or the Crown Prosecutor. Mr Lellyett's evidence was that in the prevailing conditions at the time there was a large high pressure system which was dominating the weather which is a very stable type of system and so in that situation they would not have expected high winds to eventuate and they did not. When asked if he had any knowledge of the swell on the ocean Mr Lellyett answered: "I am afraid in this particular circumstance I do not." 266. As the wave and tidal data that was available to the Weather Bureau, and put into evidence by the Crown, established there were significant limitations even in estimating the actual conditions, including the nature of the waves and height of any water on the rocks, at The Gap on the night of 7-8 June 1995. The visibility from the top of The Gap must have greatly impeded the observations of the state of the sea at the time they were made by various persons who attended the scene. The Crown Prosecutor's submission that there was a very slight swell was inconsequential having regard to the evidence and there was certainly no evidence to the contrary. In particular there was no evidence that the sea conditions on the night could have accounted for Ms Byrne's body being found by Sergeant Powderly located head first in Hole A. 267. Reference PS 95 [306] the evidence was that there was only one wave recorded which reached a height of 3.29 metres at the deep water mark and that was a measurement at Long Reef 80m from the shore. Further, there was no evidence describing that swell as large or small. The submission at PS 95 [307] should be rejected. The 1999 aerial photo taken by Mr Terracini SC did not have the capacity, as the trial judge correctly ruled, to bear on the issue of the sea conditions at The Gap in June 1995. As noted, Mr Terracini SC's submission in support of the tender was limited and the Crown Prosecutor was entitled to answer that submission and not entitled to speculate about the range of unidentified issues the plaintiff now submits should have occurred to him despite them not being identified by Mr Terracini SC. The proposition that the Crown Prosecutor's objection to the tender can only be explained by malice is, with respect, ludicrous. If the evidence was inadmissible, as it was, it was the Crown Prosecutor's obligation to object to its tender. 268. The submissions at PS 95 [308] should be rejected. As seen, the Crown called evidence from Mr Nalty and Mr Lellyett and tendered the relevant documents. In fact there was no evidence capable of establishing as a reasonable possibility that Ms Byrne's body landed elsewhere and was washed into Hole A on a wave nor could such evidence have been obtained at any time. The available evidence negated the possibility. Further, Dr Fulde's evidence by tending, as the plaintiff concedes, to prove that Ms Byrne's injuries were consistent with landing head first in Hole A is extremely significant. The fact that there was an evidential contest about this is irrelevant. It fell to the jury to decide the facts, not the Crown Prosecutor. There is also no basis whatever for the plaintiff's submission that any fall into the ocean would be unpredictable, making forensic analysis of her injuries meaningless. It is a matter of common knowledge and therefore one of judicial notice that human beings who fall from substantial heights and land on water suffer all kinds of injuries, usually fatal, but do not lose part of their skull and an eyeball. 269. As for the submissions at PS 96 [309], both Sergeant Powderly and the Crown Prosecutor did consider places at The Gap other than Holes A and B and their unchallenged evidence is that there were no other holes in the vicinity. This is also supported by Ex 96, the video in which Detective Sergeant Quigg took measurements of Holes A and B. During the video Detective Sergeant Quigg said that he had descended to the base of The Gap on six occasions and had looked around at the various rock forms there at the base of The Gap. He gave clear descriptions of Holes A and B, which were filmed, and the surrounding scenes do not show any other holes where Ms Byrne could have landed. Ex 96 also directly supports the reliability of Sergeant Powderly's descriptions of his observations and actions at the time he first located Ms Byrne's body. Further, the defendant takes issue with the plaintiff's submission that objectively there was no relevant expert evidence to exclude suicide in the brief of evidence or led at the trial. The evidence capable of excluding suicide went beyond expert evidence and although the expert evidence was significant it was the function of the jury to weigh up all the evidence on the issue and find as a fact whether or not suicide had been excluded beyond reasonable doubt. 270. The submissions at PS 96-99 [310]-[318] are repetitious and do not more than point to select parts of the evidence the plaintiff relies on to submit that, from the prospective viewpoint of the Crown Prosecutor at the time, the reasonable possibility of suicide could not be established beyond reasonable doubt on the whole of the evidence bearing on that issue. Neither the Crown Prosecutor nor the jury were obliged to take that view based on the whole of the evidence. [694]
It is this exchange of submissions that exposes the difficulties this Court is presented with when considering competing submissions of differing degrees of persuasive weight in respect of an issue, while not immaterial, is nonetheless an issue which, on my analysis, is not determinative of the plaintiff's claim for damages or sufficiently probative of that question to require resolution.
Ultimately, the question whether the plaintiff has made good his contention that the proceedings were initiated and maintained without reasonable and probable cause because the Crown was unable to exclude the reasonable possibility of suicide, will not be resolved because of the continuing controversy over the relevance of the meteorological evidence (as to which there appears to me to be a lack of clarity and no scientific certainty to support the proposition contended for by the plaintiff) and even less support for it in the evidence from post-mortem. Instead, the question of suicide merges with what I regard as by far the more persuasive submission, namely that the Crown was unable to mount a case that the manner of Ms Byrne's death allowed for a conclusion of homicide on the case advanced by the Crown at trial that the plaintiff threw her from the northern ledge to her death. As I see it, that is the more pertinent question. The related question whether the plaintiff has made out a case that he was prosecuted without reasonable and probable cause and maliciously by Mr Tedeschi also remains to be considered.

[123]

Mr Tedeschi's duties as a prosecutor

A summary of the applicable law appears in the judgment of McClellan CJ at CL with which Barr and Price JJ agreed in Causevic v R [2008] NSWCCA 238, which has been cited with approval in a number of cases since then including GDD v R; NJC v R [2010] NSWCCA 62 at [21]-[22]; Cittadini v R [2009] NSWCCA 302; Anderson v R [2010] NSWCCA 130 and Gersbach v R [2009] NSWCCA 132.
That principled approach acknowledges the DPP prosecution policy and guidelines (which incorporate the relevant Bar Rules) that a prosecutor must not press the prosecution case for a conviction beyond a full and firm presentation of the Crown case and must not, by language or other conduct, seek to inflame or bias the Court against the accused. The Rules binding Mr Tedeschi as Crown Prosecutor at the time of the plaintiff's trial were Rules 62 to 65 (now Rules 82 to 85). The Rules then in force were made by the Bar Council under s 702 of the Legal Profession Act 2004 (NSW) (now repealed) and were binding on legal practitioners by virtue of s 111 of that Act. I set them out in full below: Prosecutor's duties 62. A prosecutor must fairly assist the court to arrive at the truth, must seek impartially to have the whole of the relevant evidence placed intelligibly before the court, and must seek to assist the court with adequate submissions of law to enable the law properly to be applied to the facts. 63. A prosecutor must not press the prosecution's case for a conviction beyond a full and firm presentation of that case. 64. A prosecutor must not, by language or other conduct, seek to inflame or bias the court against the accused. 65. A prosecutor must not argue any proposition of fact or law which the prosecutor does not believe on reasonable grounds to be capable of contributing to a finding of guilt and also to carry weight.
Section 13 of the Director of Public Prosecutions Act empowers the Director to furnish guidelines to Crown prosecutors in respect of the prosecution of criminal offences. Section 15(2) further provides that prosecutors to whom the Director has furnished guidelines are obligated to comply with them. Relevantly, Guideline 2, which was in force at the time of the plaintiff's trial, sets out the "Role and Duties of the Prosecutor" as follows: A prosecutor is a "minister of justice". The prosecutor's principal role is to assist the court to arrive at the truth and to do justice between the community and the accused according to law and the dictates of fairness. A prosecutor is not entitled to act as if representing private interests in litigation. A prosecutor represents the community and not any individual or sectional interest. A prosecutor acts independently, yet in the general public interest. The "public interest" is to be understood in that context as an historical continuum: acknowledging debts to previous generations and obligations to future generations. In carrying out that function: "it behoves him - Neither to indict, nor on trial to speak for conviction except upon credible evidence of guilt; nor to do even a little wrong for the sake of expediency, or to pique any person or please any power; not to be either gullible or suspicious, intolerant or over-pliant: in the firm and abiding mind to do right to all manner of people, to seek justice with care, understanding and good countenance." (per RR Kidston QC, former Senior Crown Prosecutor of New South Wales, in "The Office of Crown Prosecutor (More Particularly in New South Wales)", (1958) 32 ALJ 148). It is a specialised and demanding role, the features of which need to be clearly recognised and understood. It is a role that is not easily assimilated by all legal practitioners schooled in an adversarial environment. It is essential that it be carried out with the confidence of the community in whose name it is performed. "It cannot be over-emphasised that the purpose of a criminal prosecution is not to obtain a conviction; it is to lay before a jury what the Crown considers to be credible evidence relevant to what is alleged to be a crime. Counsel have a duty to see that all available legal proof of the facts is presented: it should be done firmly and pressed to its legitimate strength, but it must also be done fairly. The role of the prosecutor excludes any notion of winning or losing; his function is a matter of public duty than which in civil life there can be none charged with greater personal responsibility. It is to be efficiently performed with an ingrained sense of the dignity, the seriousness and the justness of judicial proceedings." (per Rand J in the Supreme Court of Canada in Boucher v The Queen (1954) 110 CCC 263 at p 270). In this State that role must be discharged in the environment of an adversarial approach to litigation. The observance of those canons of conduct is not incompatible with the adoption of an advocate's role. The advocacy must be conducted, however, temperately and with restraint. The prosecutor represents the community generally at the trial of an accused person. "Prosecuting counsel in a criminal trial represents the State. The accused, the court and the community are entitled to expect that, in performing his function of presenting the case against an accused, he will act with fairness and detachment and always with the objectives of establishing the whole truth in accordance with the procedures and standards which the law requires to be observed and of helping to ensure that the accused's trial is a fair one." (per Deane J in Whitehorn v The Queen (1983) 152 CLR 657 at pp 663-664). Nevertheless, there will be occasions when the prosecutor will be entitled firmly and vigorously to urge the prosecution's view about a particular issue and to test, and if necessary to attack, that advanced on behalf of an accused person or evidence adduced by the defence. Adversarial tactics may need to be employed in one trial that may be out of place in another. A criminal trial is an accusatorial, adversarial procedure and the prosecutor will seek by all proper means provided by that process to secure the conviction of the perpetrator of the crime charged.
Although Crown Prosecutors are subject to considerable constraints as prosecuting counsel, consistent with the fundamental and underlying prohibition against a prosecutor straining for a conviction, they are nonetheless obliged to advance the Crown case in a firm, even a vigorous manner, and to do so fearlessly in the interests of the Crown as a representative of the community.
The plaintiff submitted that Mr Tedeschi's improper conduct as a prosecutor is evidenced by multiple occasions where he intentionally misled the jury in his closing address as to certain aspects of the evidence and what it was capable of proving, and other occasions where he deliberately failed to adduce evidence which he was obliged to adduce in the Crown case. The plaintiff submitted that what the Court would find as multiple examples of prosecutorial misconduct of this kind is available to prove both elements of the tort of malicious prosecution, in the sense that it is conduct which both demonstrates a lack of Mr Tedeschi's subjective belief in the sufficiency of the evidence to maintain the Crown case to verdict and his malice (see Brain at 379 (per Dixon J); Johnston at [42]-[43] (per Basten JA); State of New South Wales v Landini [2010] NSWCA 157 at [57]-[58] (per Macfarlan JA)).
When it is submitted that a prosecutor has infringed proper bounds in closing submissions, it is necessary to consider what are said to be instances of that occurring, but to do so in the context of the Crown case and the closing address viewed as a whole. I am mindful that Mr Tedeschi's closing address extended over three days. I am also conscious that it was a closing address comprehending a vast complex of evidence adduced in a trial which extended over three months and which required not simply an assimilation of objective facts, but the inferences that the Crown contended could legitimately be drawn from those facts in advancing the Crown case that guilt had been proved beyond reasonable doubt.
In the defendant's closing submissions, criticisms were levelled at the plaintiff's approach to analysing Mr Tedeschi's closing submissions and what is said to be his misconduct in the way in which the Crown evidence was adduced. The defendant submitted that the plaintiff's overall challenge may be dissected as follows: 226. … (a) Pick out a part of the evidence in the complex and substantial circumstantial case; (b) Argue that a favourable component in the part of the evidence makes it unreliable; or argue the part of the evidence is of low (or no) probative value; (c) Ignore the issues as they were defined at trial by the plaintiff or to which no objection was taken, or how they were dealt with by the trial judge in the context of the whole evidence; (d) Ergo; the part of the evidence ought not have been led or otherwise relied upon by the prosecutor in commencing or maintaining the entire prosecution; (e) Ergo; the prosecution was malicious; (f) Ergo; the prosecution lacked reasonable and probable cause. 227. The flaw is apparent from the very first step in the deduction process, and it trickles down to the very end.
The defendant further submitted that the repeated assertions in the plaintiff's submissions that isolated aspects of the evidence were "worthless" or "of no evidentiary value" (the submission advanced when addressing the "identification evidence" in particular) also reflects an impermissible approach to the discipline required of the plaintiff's counsel.
Those criticisms are, in my view, well made. The defendant's submissions should be extracted in full (emphasis in original): 370. First, the relevance and weight of evidence must be considered in its context and not in isolation. It is trite one does not detach a particular fact in a case and argue it to be irrelevant in seclusion to the other evidence because the colour of the evidence may change depending on what other evidence there is. As explained by Heydon J in BBH v The Queen (2012) 245 CLR 499 at [97] (emphasis added): "As W A N Wells said: "[an] item of evidence whose relevance is in dispute may validly be held to be relevant notwithstanding that, upon an appraisal of the entire body of evidence in the case, it is found to carry no weight at all, and is discarded." If so, provided that evidence is reasonably capable of being characterised as the tendering party desires, the possibility that evidence will in fact be innocently characterised by the jury cannot render it irrelevant either: for much evidence is capable of characterisation in several ways. (Emphasis added.) 371. Second, this was a circumstantial case and the tribunal of fact was required to consider the whole of the evidence. As stated in the unanimous judgment of French CJ, Kiefel, Bell, Keane and Gordon JJ in The Queen v Baden-Clay (2016) 334 ALR 234 at [47] (citations omitted, emphasis added) in the context of circumstantial cases: For an inference to be reasonable, it "must rest upon something more than mere conjecture. The bare possibility of innocence should not prevent a jury from finding the prisoner guilty, if the inference of guilt is the only inference open to reasonable men upon a consideration of all the facts in evidence". Further, "in considering a circumstantial case, all of the circumstances established by the evidence are to be considered and weighed in deciding whether there is an inference consistent with innocence reasonably open on the evidence". The evidence is not to be looked at in a piecemeal fashion, at trial or on appeal.
That is not to say that the plaintiff's identification of particular aspects of Mr Tedeschi's conduct as constituting a breach of prosecutorial standards is without substance.
Not all of the various aspects of Mr Tedeschi's conduct as prosecutor that were the subject of criticism by the Court of Criminal Appeal were ultimately relied upon by the plaintiff in his final submissions as a source of proof of either of the two elements of the tort that are in dispute, and only some were pleaded in the FASC as particulars of malice. Additionally, the plaintiff's final submissions were not structured referable to the particulars of misconduct pleaded as constituting malice in various sub-paragraphs of par 16 of the FASC. Instead they addressed each of several discrete aspects of what was alleged to be Mr Tedeschi's misconduct as to which he was cross-examined, inviting a finding of misconduct from which malice could be inferred not only by what is said to be proven instances of misconduct (some more egregious than others) but Mr Tedeschi's justification of his conduct in his evidence in these proceedings.

[124]

Mr Tedeschi's evidence in these proceedings and the competing submissions of the parties concerning it

In defence of the case mounted against Mr Tedeschi as prosecutor, the defendant relied upon three statements: the first dated 13 October 2016, the second dated 9 February 2017 and a third dated 16 February 2017 ("the second February statement") in which Mr Tedeschi addressed, at considerable length, the way the Crown case was structured by him and the form and content of his opening and closing submissions.
Because the second February statement was structured as a response to the matters relied upon by the plaintiff in his Reply as attracting issue estoppel in his Reply, a redacted version was read in the defendant's case to meet the plaintiff's case that as the Crown Prosecutor at the plaintiff's trial, Mr Tedeschi conducted the proceedings maliciously and in the absence of reasonable and probable cause. The second February statement and the two earlier statements were read and received into evidence on the same basis.
It is impossible to cover all of what Mr Tedeschi asserted in his statements and in his evidence justifying the approach he took to the prosecution of the plaintiff, or to refer to the expansive explanation he gives for maintaining the belief that he was entitled to structure the Crown case and to put his closing submissions concerning the probative force of the evidence in the Crown case as he did in seeking to persuade the jury to return a verdict of guilty. In the concluding paragraph of the second February statement, he said as follows: Conclusion: I assert that at all times there was probable and reasonable cause to pursue the prosecution of the plaintiff. At no time did I bear any malice against the plaintiff. At all relevant times I was of the view that the evidence amply justified the initiation and continuation of criminal proceedings against the plaintiff for the murder of Caroline Byrne. Indeed, if any Crown Prosecutor, faced with the evidence in the possession of the Crown in this case, failed to pursue this prosecution, they would, in my view, have been in severe dereliction of their duty. [695]
That contention was under direct challenge by the plaintiff.

[125]

The issue of the conscious/struggling woman as assessed by Mr Tedeschi

At the outset, it is necessary to restate a number of findings made earlier in this judgment, in particular the consideration I have given to whether A/Prof Cross should be regarded as a prosecutor.
Despite the full complement of throw tests conducted by A/Prof Cross extending from October 2003, when Hole B was thought to be the landing point through to June 2004 when further throw tests were conducted after Hole A was designated, and then again in October 2004 when the question of a correlation between a thrower's bench press ability and throwing strength was under consideration, A/Prof Cross conducted no throw tests where a volunteer resisted being "spear thrown". In fact, he conducted no tests at all where the thrower was required to accommodate any movement of the volunteer which might have impeded or restricted his execution of the "spear throw".
It follows that A/Prof Cross had no information upon which he could make any assessment of the impact on launch speed were Ms Byrne to have resisted being lifted to the plaintiff's shoulder height, or were she to have struggled against his hold under her chest and between her legs before she was thrown to her death over the edge of the cliff. It also follows that there was no objective evidence available to Mr Tedeschi when he furnished his advice to Mr Cowdery; when he led A/Prof Cross at committal and when he opened the Crown case to the jury referable to which he could invite A/Prof Cross to consider whether his conclusion that Ms Byrne must have been spear thrown from the cliff at 4.5 metres per second to have landed at Hole A should be qualified by the potential for her to have been conscious and struggling at that time. In addition, there was no evidence upon which Mr Tedeschi could have invited A/Prof Cross to offer any opinion as to whether, were Ms Byrne to have offered resistance to being lifted and thrown, that might have had a material impact on the speed at which she was launched and thrown to her death.
Although Mr Tedeschi's advice to Mr Cowdery was not tendered in the proceedings, his opening address, the questions he asked A/Prof Cross in chief and in re-examination and his closing address were in evidence. It is this material that the plaintiff relies upon as the primary source of what he submitted are the exposed flaws in the Crown's reliance on the evidence of A/Prof Cross to support a charge of murder, and the tendentious approach taken by Mr Tedeschi to adducing his evidence and making submissions about it.
It is difficult to conceive that the lack of objective evidence of the kind referred to above was not obvious to Mr Tedeschi when he advised Mr Cowdery in February 2006 that a charge of murder should be laid (or very close to the date that he furnished that advice), given that one of the rhetorical questions A/Prof Cross posed and answered in his fifth report was: "Was Caroline Byrne conscious when she was thrown?". He answered that question as follows: There was no evidence to suggest that she was or she wasn't [conscious] … I did not conduct any experiments where the female actively resisted being thrown. It would clearly be more difficult and more dangerous to throw a woman who was struggling than to throw a woman who was not, especially if she attempted to hang onto the thrower. Consequently, I suspect that Caroline Byrne was not fully conscious when she was thrown and that she was also lifted over the safety fence onto the north ledge rather than climbing onto the ledge of her own accord… [696] (Emphasis added.)
Mr Tedeschi gave evidence in the proceedings that A/Prof Cross's identification of the "difficulties and dangers" of throwing an unconscious woman did not concern him. He said that in his advice to the Director and in his preparation for trial, he simply ignored the fact that Ms Byrne may have been unconscious when she was thrown. He said he took that approach because he regarded that aspect of A/Prof Cross's fifth report as conjecture and that he could and should ignore it. He gave evidence that he made the assessment that A/Prof Cross's "core findings" remained valid despite him venturing unsolicited views about the "difficulties and dangers" of throwing an unconscious woman, as one amongst many unsolicited views he volunteered about a range of factual matters as to which he had no knowledge and which did not call for the expression of expert opinion in any event.
A/Prof Cross's "core findings" was a term that did not find expression in A/Prof Cross's reports, or in his evidence at trial. It was a term utilised by Mr Tedeschi for the first time in these proceedings to describe what he considered as findings core or fundamental to A/Prof Cross's ultimate opinion that Ms Byrne must have been thrown from the cliff, namely that she could not have landed where she was found unless she was thrown. Mr Tedeschi regarded this conclusion as a conclusion A/Prof Cross described as based on a "simple high school calculation". [697] These "core findings" were repeatedly referred to by Mr Tedeschi's evidence to justify the criticisms levelled at him by Mr McClintock for failing to adequately or, as the plaintiff would submit, failing altogether to ensure that all and any qualifying assumptions were led from A/Prof Cross consistent with a prosecutor's obligations when adducing evidence from an expert witness.
Mr Tedeschi gave evidence that it was these "core findings" that he intended to rely upon in proof of the Crown case at trial, both when he furnished his advice to Mr Cowdery and when he conducted the trial on behalf of the Crown. He gave the following evidence in cross-examination: Q. You didn't think [A/Prof Cross's posing of six questions in his fifth report] showed a predisposition to accept uncritically things that had been told to him by the police, did you? A. By the time I came to write my advice to the Director, Professor Cross had had an article based on this very case published in one of the world's most foremost forensic science journals setting out the core findings that the Crown relied upon. I considered that his background in sports physics, the fact that he'd had this article published already and the fact that Professor Elliott confirmed all of his findings, showed that his core findings were utterly reliable and that all of this other stuff was just fluff that could be conveniently ignored and I, I accepted the accuracy of his core findings. Q. What you're saying is that it didn't cause you any concern that he was repeating uncritically information that he was supplied by the police; is that your answer? A. It didn't cause me any concern about his core findings which were the ones that I was intending to rely upon at trial. Q. What about not his core findings but his entire general approach to the problem; did it cause you any concern about that? A. It didn't cause me any concerns about his core findings, no. Q. I'm not asking you about the core findings, I'm asking you about his general approach to the problem. Did it cause you any concern about that? A. Look, Professor Cross is a colourful character. He's, he's a very enthusiastic man. He was very enthusiastic about sports science. He was very enthusiastic in his willingness to cooperate in answering any requisitions that we had. I did not consider that any of this material detracted from his core findings. HER HONOUR Q. Did you think that he was fast becoming an advocate for a cause by his including what you read as irrelevant, speculative opinions not based upon his expertise in any regard? A. Your Honour, I, I just considered that he was prepared to venture into areas that he had nothing really to add, that he, that he shouldn't have ventured into. Q. Did that signal a note of caution to you given what I know you understand to be the critical role of an expert bound as they each are by an Expert's Code of Conduct? A. I think that it may well have been the reason why we asked for an independent expert to verify his core findings and once we had that independent expert's report I was satisfied that even though he had overstepped the mark in advancing these other views, which were clearly outside his area of expertise, that I could rely upon those core findings. [698]
In his statement of 13 October 2016, Mr Tedeschi said of A/Prof Cross's evidence the following: 37. Based upon the information about the correct hole, Professor Cross, who is a physics professor at Sydney University with expertise in human movement, identified the only possible rock platform from which Caroline Byrne could possibly have ended up in the correct hole (hole A). Based upon the distance of the body from this platform (known as 'the northern rock platform') Professor Cross was also easily able to assess the velocity that Caroline Byrne must have been going on the northern rock platform at the top of the cliff in order to arrive head first in hole A at the bottom. This involved a very simple physics formula - one that is taught to first year high schools students. Associate Professor Cross then made extensive enquiries and conducted his own experiments that enabled him to determine that only an elite athlete would have had sufficient physical ability to project herself at that velocity from the top of the cliff to end up in hole A. The evidence was that Caroline Byrne was not an elite athlete - in fact she was of poor athletic ability. It should also be borne in mind that when Caroline Byrne went off the cliff, it was on a very dark night from a rough rock platform with sloping edges. 38. I considered that this evidence was compelling in that it irresistibly proved beyond any reasonable doubt that Caroline Byrne could not have projected herself with sufficient velocity to end up head first in hole A, let alone accidentally fallen. This left as the only explanation a forceful throw from the rock platform.
It does not seem to me to be to the point that A/Prof Cross was not specifically asked by Det Insp Jacob or Mr Tedeschi to address the question of Ms Byrne's state of consciousness or capacity at the time she was thrown when he furnished his fifth report, or that he had no qualifications to answer that question, or any of the other five questions he posed and answered in that report even were he asked to consider them.
Neither does it seem to me to be to the point that at least part of the answer to the first question extracted above was based upon conjecture or surmise, since A/Prof Cross made it clear that he had not conducted any experiments to enable him to offer any reasoned analysis of the impact of a struggling, non-compliant volunteer on the successful execution of the "spear throw", including, most importantly, the potential for movement or resistance to impact on the speed at which the volunteer was launched.
What is to the point is that A/Prof Cross identified in his fifth report that it would be "more difficult and more dangerous" [699] to throw Ms Byrne over the cliff were she conscious and resisting at that time, and that Mr Tedeschi was aware of his views in that regard. What is also to the point is that the obligation to make an assessment of whether those difficulties and dangers operated to qualify A/Prof Cross's ultimate opinion as to the mechanism by which Ms Byrne descended from the cliff top at the Gap to her death rested exclusively on Mr Tedeschi as the Crown Prosecutor.
In A/Prof Cross's sixth report of 8 March 2006 (prepared after a conference with Mr Tedeschi on 15 February 2006 in which he requested that A/Prof Cross prepare a report, in the form of a summary of his experiments and the findings generated from them) there is no reference at all to the results of his "spear throw" tests having no application where the subject is struggling, and only a passing reference to the so called "limp throw test".
Mr McClintock put to both A/Prof Cross and Mr Tedeschi in cross-examination that A/Prof Cross's reported views concerning the difficulty in throwing a struggling person in his fifth report was removed from the further summary (sixth) report from which the Court was invited to make the following related findings: Firstly, that A/Prof Cross was disinterested in ensuring that his summary report was expressed in appropriately qualified terms (inclusive of the fact that the test results had no application to a struggling woman). Secondly, because Mr Tedeschi knew that A/Prof Cross's conclusions must have been qualified by the test results having no application to a struggling woman, and because he also knew there might have been no adequate foundation for their application to an unconscious (limp) woman, A/Prof Cross's evidence should have been adduced by him subject to those qualifications. From that the Court was invited to find that Mr Tedeschi intentionally omitted any reference to either qualification when he called A/Prof Cross as an expert witness at committal and at trial, conscious that the Crown could not prove manner of death without his evidence and that the Crown's obligation to disprove suicide beyond reasonable doubt was also made much more difficult.
The further question is whether the inference can safely be drawn that Mr Tedeschi knew, at the latest as the trial progressed, that the expert evidence from A/Prof Cross and Prof Elliott was insufficient to invite the jury to return a verdict of guilty, and that he maintained the prosecution through to verdict with that knowledge. If that finding is open, then the plaintiff's case may be even further advanced since a finding that Mr Tedeschi knowingly maintained the proceedings without reasonable and probable cause may support the further finding that he did so maliciously.
In reviewing the way Mr Tedeschi adduced evidence from A/Prof Cross as to the method of throwing he had concluded was the only method that would achieve the launch speed necessary for Ms Byrne to land in Hole A, it is clear no questions were asked inviting him to comment on the significance of the volunteer having been directed to cooperate with the thrower in order to facilitate the best execution of the "spear throw", or whether that had the potential to influence launch speed.
Despite a raft of criticisms concerning the approach A/Prof Cross took to his role as an expert forensic consultant, and what I am satisfied was an abject failure on his part to meet his independent obligations as an expert witness, the plaintiff failed to establish that A/Prof Cross is a prosecutor to whom liability for the tort of malicious prosecution might attach. What is laid bare by that finding is that it is for the plaintiff to establish that the obligation to ensure that A/Prof Cross's evidence was adduced in such a way so as to make it clear to the jury that his conclusion that Ms Byrne was "spear thrown" to her death was qualified by his assumption that she did not struggle against the plaintiff as her attacker, rested on Mr Tedeschi as the Crown prosecutor at the plaintiff's trial and that his failure to make that clear evidences, in whole or in part, his tortious conduct as a prosecutor.
It is worth extracting in full the way in which A/Prof Cross described the throw technique when he was invited by Mr Tedeschi to describe the "spear throw" to the jury and demonstrate it. I don't need a volunteer, no. Just a mannequin. But, basically, the technique is to pick up a person, a female. The left hand on the chest area, the right hand supporting the weight, and the right hand located between the two legs. It wasn't a technique that any of us wanted to try initially, but we eventually tried that technique. Now, it is very difficult to support a weight at arms-length with the left hand and the right hand like that (demonstrated). So in order to support a person in that position, you actually have to raise them so most of the weight was taken by the right hand, if you are a right-handed thrower, and the left hand simply guides the person. The technique then - having picked the person up in that position, the technique involved running up to the edge of the swimming pool where the test was done, a few quick paces, and then pushing as hard as possible with the right hand, allowing the body to fall into a horizontal position at the point of release. And that technique, the combined run-up and the push with the right hand, achieved the maximum throw speed of all the methods that I had tried. [700]
In the questions that followed Mr Tedeschi asked A/Prof Cross to confirm that the "spear throw" tests undertaken to measure launch speed involved, primarily, two throwers, being Male A and Male B, and that the test results generated from their test throws were as reported by him in his second report. When asked about those tests, A/Prof Cross gave the following evidence: There was more than three, but I concentrated primarily on two of those throwers. Others attempted the throw, and their technique, in my words, was lousy and they were not able to throw in a straight line, or without rotation, and they achieved low speed throws for that technique. Two of the throwers were more athletic and were able to perform the throw with a reasonable technique; in other words, a good run up, without stumbling, without twisting the female person around. A good athletic ability. One was stronger than the other. [701]
Although it is implicit in what A/Prof Cross described as "a reasonable technique" that it did not involve the throwers stumbling (by a feigned trip) on the approach to the edge of the pool, and that the person thrown was not twisted as she was held at shoulder height and projected forward, nothing was led from A/Prof Cross (and he did not make it clear in his evidence) that all remaining tests (save for the single "limp throw test") involved the volunteer allowing herself to be lifted at the thrower's shoulder height before bracing herself to be thrown and then orienting her body as she was launched with her arms forward of her shoulders to achieve a head first dive into the water. Neither was there any evidence led from A/Prof Cross to make it clear that the single volunteer who was lifted to the above shoulder position of the thrower in the so-called "limp throw test", although simulating a certain limpness in her arms and legs, nonetheless cooperated with being lifted from a standing position to the thrower's shoulder and that she also braced herself so as to dive into the water head first when she was thrown. The "limp throw test" involved only a single throw, third in a sequence of four throws by Male A on 24 June 2004, the result of which was reported in A/Prof Cross's second report of 26 July 2004 (see summary at [1067]). It was the only "spear throw" test of any kind undertaken by A/Prof Cross that might have simulated the throwing of an unconscious subject.
The adequacy of the single "limp throw test" to assess the impact of a wholly non-compliant subject on launch speed, and the Crown's entitlement to rely on A/Prof Cross's evidence that the single test was sufficient to allow for the conclusion expressed by A/Prof Cross that it had no impact on launch speed, was the subject of critical review in the proceedings on appeal and the subject of further interrogation in these proceedings.
In response to the allegation that he led evidence from A/Prof Cross selectively, Mr Tedeschi maintained that at the time of rendering his advice to the Director (that is, after conferring with A/Prof Cross and after having read and considered all his reports including, in particular, his fifth report of 8 February 2006) he did not appreciate that the "spear throw" technique (which he accepted was foundational to the Crown case theory as the mechanism by which Ms Byrne was thrown from the northern ledge to her death) had no application if Ms Byrne were conscious and resisted being raised to the plaintiff's shoulder height and thrown from the cliff after a 4-metre run-up. The plaintiff submitted that I would reject Mr Tedeschi's evidence that he did not appreciate that fact as untenable.
It is important to set that part of Mr McClintock's lengthy cross-examination of Mr Tedeschi where he dealt with this issue in full: Q. I want you to focus your mind on what you thought when you read this report [the fifth report of 8 February 2006] and not what happened at trial, do you understand that? A. I understand. Q. There are only two possibilities, really, aren't there? She was conscious or she was unconscious? A. Yes. Q. It was part of your responsibility to determine, when you were determining whether charges should be brought against my client, to assess the validity and reliability of Professor Cross's evidence, potential evidence and the experiments he had carried out, wasn't it? A. Indeed. Q. Yes. You see, he has said, "I did not conduct any experiments where the female actively resisted being thrown," that's correct, isn't it? A. He said that. Q. It follows, doesn't it, that his results were only valid if the subject was actually not resisting being thrown, that's correct, isn't it? A. That's incorrect. Q. Why is that incorrect? A. That's incorrect because the, the fact of the matter was that once you accepted that she had come to rest in hole A, the distance out from the cliff was such that she could not have got there herself and somehow or other, conscious or unconscious, incapacitated or not incapacitated, she had ended up headfirst in that hole. We were not in a position to be able to say what her condition was but we were in a position to prove that she had been thrown with a particular speed, which she could not have obtained by running off herself. But which could have been obtained by a strong male who could bench press around 100 kilograms, throwing her in the, in the manner of a spear throw and-- Q. Let's just go back-- A. --whether she was conscious or unconscious, incapacitated or incapacitated (as said), was irrelevant to that. [702]
Dealing with the reference in A/Prof Cross's fifth report to the "struggling woman", he went on to say: [A/Prof Cross is] engaging in unnecessary and superfluous conjecture about whether she was conscious or unconscious. I didn't consider that that conjecture, in any way, detracted from his, from his experiments with women running and diving into swimming pool. From his experiments with the speed that athletes were able to obtain and from his inquiries - from his experiments with, with men throwing women into swimming pools and the speed with which they were able to project the women headfirst into a swimming pool. I didn't think that his conjecture about whether she was conscious or unconscious in any way detracted from his findings that were based upon his experiments and his expertise. Q. You considered, however, didn't you, that his failure to carry out experiments where the female resisted being thrown reflected on the reliability of his opinions, didn't you? A. I don't think he did experiments with females resisting. … Q. You misunderstood me. Let's just go back. You see he says clearly, "I did not conduct any experiments where the female actively resisted being thrown." A. Yes. Q. He is putting this material in, isn't he, ultimately to justify a conclusion that he suspects Caroline Byrne was not fully conscious, do you see that? A. I don't think it's a conclusion, I think it's, it's a, it's a hypothesis that he's advancing. Q. What he's saying is that his suspicion is that she was unconscious and that's because a conscious person would have resisted and therefore, could not have been thrown. That's what he's saying, isn't he? A. That's what he says. Q. At the time you saw this the - what he's saying is that it could not be done if the person in question was conscious and resisting, isn't he? A. That's not what he said. Q. Just look at those two sentences again, the ones, "I did not conduct" and "It would clearly be more difficult." A. Sorry, where's this? Q. Top of page 6527. A. Yes. Q. Just look at those. A. Yes. Q. I just want to give you a chance to say anything that you want to about your reaction on reading those two sentences when you read them in 2006. Anything you want to about your reaction. A. Well, I can't specifically recall now, more than ten years later, exactly what my thoughts were but I assume that I would have thought to myself, "I'm not in a position as prosecutor to say what condition she was in. His opinion about whether she was more likely to have been unconscious or conscious is irrelevant. I don't need to prove whether she was conscious or unconscious, all I need to prove is that she ended up in hole A and that she couldn't have got there under her own steam." Q. It didn't occur to you that this whole theory could not work if she was conscious? A. No, it didn't. Q. I see. It's perfectly obvious, first, isn't it, that if she was conscious she would have been resisting, that is correct, isn't it? A. I, I don't think you can make that assumption, no. Q. You don't think she - a conscious woman is being held up in a spear throw on the top of The Gap and you're suggesting to her Honour that she would not be resisting, is that what your evidence is? A. I can imagine that if I was held up that high next to a cliff I would be frozen with fear and I would be so terrified that the slightest movement that I made might result in me ending up off the cliff. I may well remain immobile, I couldn't say. I've never been in that situation; I've never spoken to anybody-- HER HONOUR Q. It would be unlikely that you would remain silent …? A. Yes, your Honour. MCCLINTOCK Q. You would be screaming for your life and you would be fighting for your life, wouldn't you? A. I would imagine that you would be screaming, yes. Q. Specifically what I want to suggest to you is that there is an essential qualification to the opinion expressed by Professor Cross in B on page 6526 and the essential qualification is that the person in question was not resisting. That is correct, isn't it? A. I didn't see it as a qualification in any sense of his previous findings. It was a gratuitous additional hypothesis that he had ventured to give without any request. Q. In fact, I want to suggest to you that you realised no later than at the time when you read this report that it was - that Professor Cross's views were limited to the circumstance where the person was not resisting, that is correct, isn't it? A. I don't accept that at all. Q. In fact, I want to suggest to you that it's actually obvious on reading Professor Cross's second report - which I will now take you to. The second report begins, which is dated - I am sorry. Before we go to that, do you see those pages still on the screen? A. Yes. Q. I want to suggest to you, as I've suggested to you already, forgive me for repeating it, that you knew and you knew full well that Professor Cross's views did not apply if the person in question was resisting? A. I don't accept that. Q. I want to suggest that the evidence you have just given to that effect is incorrect, do you agree with me or not? A. I don't agree with you. Q. I also want to suggest to you that you know it's incorrect, do you understand that question? A. I don't agree with you. [703]
Mr Tedeschi was later asked whether, accepting that he was under a duty to present the Crown's evidence accurately and fairly, and that serving the full complement of A/Prof Cross's reports did not alter that obligation, it occurred to him that a significant qualification to A/Prof Cross's conclusions was that no experiments had been undertaken where a volunteer resisted, or simulated any resistance to being thrown. Mr Tedeschi again rejected any suggestion that that did occur to him and that he deliberately failed to adduce that evidence. He denied that he saw it as essential that he do so. The plaintiff invites the Court to find that as untenable.
Before considering whether the plaintiff has established that Mr Tedeschi's approach to adducing evidence from A/Prof Cross was not one that was reasonably open to him, and before considering whether the plaintiff has also proved that Mr Tedeschi knew that A/Prof Cross's evidence was an insufficient basis upon which to invite the jury to conclude that Ms Byrne was murdered, what cannot be overlooked is that in his opening address Mr Tedeschi alerted the jury to an issue which he expressed in terms very similar both to the rhetorical question A/Prof Cross posed for himself in his fifth report and his answer.
Mr Tedeschi posed the question to the jury in the following way, "Was Caroline conscious or unconscious when she was thrown to her death?" which he answered by saying, "[w]ell we don't know". [704]
Mr Tedeschi went on to submit: There is a possibility that she was incapacitated by maybe being struck so that she was not able to defend herself and was then thrown. Maybe she was unconscious. We just don't know. Maybe she was fully conscious. But one would have thought that if the accused lifted her up to throw her at the edge of The Gap when she was conscious, she would have been flailing around trying to grab hold of anything. It would have been very dangerous for the accused to have thrown her if she was flailing around, grabbing hold of him, because there would have been the risk, if he was at the edge of the rock throwing her, that if he threw her and she grabbed hold of him, that he might go over as well. [705]
That submission bears a marked similarity to the consideration A/Prof Cross gave to the impact of a "struggling woman" on the successful execution of a "spear throw" in his fifth report (extracted above). Mr Tedeschi's opening submission to the jury is also difficult to square with his evidence in these the proceedings that he completely ignored A/Prof Cross's reference in his fifth report to the "dangers and difficulties" associated with throwing a struggling woman from a cliff altogether, and did not consider himself obligated to ask A/Prof Cross any questions about it.
That raises the question whether his evidence that he ignored the fact that A/Prof Cross had not conducted any tests where a volunteer was instructed to resist being thrown was truthful. It also raises the question whether he gave truthful evidence when he said he did not see any need to lead that evidence in order that the jury would understand that the experimental environment and the results generated from it necessarily qualified the conclusions A/Prof Cross reached.
In Mr Tedeschi's closing address the position he articulated on behalf of the Crown had changed. In his closing submission he invited the jury to proceed to consider their verdict on the basis that Ms Byrne was unconscious, or at least incapacitated (or likely to have been), when she was thrown from the cliff edge. In inviting the jury to proceed on that basis, Mr Tedeschi referred to a number of aspects of the evidence, or inferences which he invited the jury to draw from the evidence, which, he submitted, compelled the conclusion that Ms Byrne was likely to have been in that physiological state at that time.
In answering the plaintiff's case in these proceedings that he changed the Crown case in this respect because of what he was always aware were the difficulties and dangers of "spear throwing" an unconscious and non-compliant woman (a particular of professional misconduct in par 16.64 of the FASC), Mr Tedeschi gave evidence that in advancing that submission to the jury in closing he was merely "putting the submission" that the Crown did not know whether Ms Byrne was conscious or unconscious more directly.
In his October 2016 statement, in defence of the position he took, he said as follows: 81. I then went on in some detail to explain why the evidence was more consistent with Ms Byrne being incapacitated or unconscious at the time she was alleged to have been thrown off The Gap. I advanced three matters in support of this submission. First, I referred to the absence of evidence of substantial injuries to her arms or hands and in particular the evidence of Professor Duflou that if somebody had jumped or was thrown head first over a cliff when they were conscious, they would instinctively put out their arms if they were going and this would result in massive injuries to the head and arms. 82. Secondly, I referred the jury to the single short scream heard by the two fishermen and Mr Doherty. My primary submission was that if Ms Byrne was committing suicide, why would she scream at all; however, if she had been fully conscious then she would have been screaming for more than a second or two that she was heard by Mr Doherty and the two fishermen. 83. Thirdly, I pointed to the evidence of Dr Hilton and Dr Duflou that some of the injuries found on Ms Byrne were consistent with what might be described as "defensive injuries", particularly injuries to the knuckles on both her hands and a missing finger nail. I acknowledged that neither doctor could definitively say that they were defensive given the injuries that Ms Byrne had suffered from the fall, but I submitted that they were the sort of injuries that people would get during a struggle and therefore might be characterised as defensive injuries. 84. The three matters I relied upon in my closing submissions provided support that Ms Byrne was likely to have been unconscious or incapacitated at the time she was thrown over The Gap. However, I concluded my submissions on this issue by saying that it was not necessary, in deciding the verdict in this case, for the jury to make a definitive decision whether or not Ms Byrne was unconscious or incapacitated. If, at the end of the day they could not decide that issue, I suggested that it would not prevent the jury from reaching a verdict.
In inviting the jury to accept the evidence of Dr Duflou (a witness called by the defence) Mr Tedeschi must be taken to have impliedly acknowledged that if a person were conscious when thrown from a height off a cliff, they would instinctively extend their arms, and, if they were falling head first, massive injuries to the arms and hands would be inevitable. Since it remained the Crown case at the end of the trial that Ms Byrne landed head first in Hole A, and that she could only have been spear thrown to that position, because she could not have jumped (the so-called "core finding" of A/Prof Cross), Mr Tedeschi submitted that the inevitable conclusion the jury would reach (accepting Dr Duflou's evidence) was that Ms Byrne was unconscious when she was lifted and thrown to her death. Mr Tedeschi also submitted that the jury would be satisfied that Ms Byrne would not have voluntarily allowed herself to be ushered or steered over the safety fence onto the northern rock platform at night, in the cold and during the violent argument. That, he submitted to the jury, "defies rationality". Instead, he urged the jury to accept that Ms Byrne must have been lifted over the fence (incidentally the view A/Prof Cross expressed in his fifth report) and, were she fully conscious at that time, she would have been screaming for longer than the duration of the single short scream heard by the fishermen and Mr Doherty. To the contrary. Mr Tedeschi submitted: [Ms Byrne] would have been screaming for the time that she was dragged to the fence, that she was lifted over the fence, that she was lifted up, and then that she was thrown over. [706]
Mr Tedeschi went further and submitted that the short scream that was heard by the fishermen and Mr Doherty was not as Ms Byrne was thrown, but a scream in the course of the plaintiff rendering her incapacitated or unconscious.
Save for Dr Duflou's evidence (which it might be said was obvious in any event), the balance of what Mr Tedeschi relied upon in support of the positive proposition in his closing address that, in all probability, Ms Byrne was unconscious when she was thrown to her death was available when he advised Mr Cowdery in February 2006 that criminal proceedings should be commenced and when he opened the Crown case to the jury.
The further question that necessarily presents for the purpose of these proceedings is what evidence the Crown had available to it when Mr Tedeschi closed his case to the jury to make good the proposition that an unconscious person in the condition he invited the jury to accept was likely to be Ms Byrne's condition before she was thrown from the cliff, could not only be lifted and held at shoulder height in the way described by A/Prof Cross in his evidence (namely, under the chest and between the legs), but that her limp and unresponsive body could have been propelled at sufficient speed to have landed head first in Hole A.
I regard Mr Tedeschi's evidence that the absence of any evidence bearing on that scenario did not concern him because Ms Byrne must have been thrown because she could not have jumped the distance to Hole A or Hole B as unpersuasive. For the Crown case to be based on the bald assertion that Ms Byrne was "thrown" to her death was never an adequate basis to make good the Crown case that the plaintiff, acting alone, threw her. A/Prof Cross's evidence was critical to the Crown being able to prove the precise manner or the mechanism of the act that caused her death. Were it the Crown case simply that she was thrown off the cliff, A/Prof Cross's evidence that the "spear throw" by a single strong man was the only technique that could replicate her landing in Hole A by experimentation would have been otiose.
Leaving to one side consideration of the plaintiff's submission that Mr Tedeschi changed the Crown case when he invited the jury to accept that Ms Byrne was unconscious when she was lifted and thrown to her death, and leaving to one side consideration of the plaintiff's further submission that Mr Tedeschi changed the Crown case still further by implicitly abandoning the "spear throw" technique and renaming the throw as a "shotput throw" (see par 16.61 of the FASC as to which see later at [1072]), it is clear that Mr Tedeschi did not refer in his closing address to the effect of Mr Terracini's cross-examination of A/Prof Cross or the cross-examination of Prof Elliot.
Although Mr Tedeschi did not invite A/Prof Cross to address whether the ultimate conclusions he derived from his poolside tests should be qualified by inviting him to assume, as a working hypothesis, that Ms Byrne may have been conscious and struggling at the time she was raised to shoulder height and "spear thrown" to her death, or, conversely, that she was unconscious and limp at that time, Mr Terracini took up the issue in cross-examination. In fact, it was not until cross-examination that A/Prof Cross was asked and openly acknowledged that whilst there would likely be a difference to the throw speed were a person struggling or resisting being thrown, he was not able to resolve the extent of the difference; nor was he qualified to resolve it: Q. Did you make any attempt to calculate, quantify or assess, how you get the body over the safety railing immediately before you throw it off the cliff? A. Yes. Yes, yes. The answer is yes. Q. All right. Well, are we able to assess, and, indeed, do you consider that you are qualified to assess, what difference, if any, it makes to throwing a person that doesn't want to be thrown over the cliff, that is, being alive, as opposed to somebody that's already died and gets thrown over the cliff? A. I did consider that as an issue, but I was not able to resolve it, nor was I qualified to resolve it. Q. No. Were you able to quantify in any way the degree of movement or struggle that somebody would be making if they were going to be thrown off a cliff and they're alive? A. No. I had no evidence either way to make any judgment at all about that issue. Q. Were you able to calculate in any way how the body was transported from any roadway or path that leads up all the way to this point at the top of The Gap? A. Well, no, I can't determine that, but my assumption would have been that she walked. Q. That she walked? A. Up the pathway. [707]
Later in cross-examination when he was asked what attempt he made in the poolside throw tests to account for the fact that Ms Byrne may not have wanted to be picked up and thrown (that is, that there was a struggle even before she was raised to shoulder height) he referred counsel (in an unresponsive way) to the "limp throw test", as to which he said that the volunteer's body in that configuration "made no significant difference to the throw speed". He said: Q. Right. When you were actually asking the volunteers to take part in the spear-throwing technique, what, if any - and it my may accord with nonsense - but what, if any, attempt did you make for the fact that the person may not have wanted to be picked up and thrown; that is, there was a struggle even before somebody was up in the air being thrown? A. Yes, she saw one of the four throws by the strongest thrower in the video yesterday, where I asked the volunteer to remain limp, to see whether it made any difference to the throw speed, and there was no significant difference to the throw speed. Q. What I'm asking you about is did you take into consideration what effect, and it may accord with commonsense, that if somebody didn't want to be picked up, there was a struggle and she's resisting, did you try to simulate that in any way? A. I was answering your question where you said: What, if any, attempt did you make? And the attempt that did I make was I asked the woman to remain limp. And your second question: Did I attempt to take into account a struggling woman? And the answer was no, because that would have been dangerous, the woman might have fallen on the concrete by the side of the swimming pool. Q. Now, are you able to assist the members of the jury with answering these questions: is there any way that a calculation can be made about how a person falls from a considerable height in a struggle? That is, there must be more ways of throwing somebody - flailing arms, flapping of legs, things of that kind - does that make any difference to how, first of all, how long it takes to fall? A. No. [708]
In re-examination, the impact of a struggling person was addressed: Q. You were also asked by Mr Terracini about if the person who was thrown from the top of The Gap was in a position where they were able to struggle, and you explained that there were no tests that you did involving the subject resisting or struggling because of the risk of injury? A. Correct. Q. Now, if you assume a situation at the top of The Gap where there is a struggle, could a struggle result in a faster speed than a person being thrown who was unconscious? A. I can't see it that it possibly could. Q. Could it result in possibly a slower speed? A. Yes, I can see that. Q. Do you say that a struggle could potentially result in a lower speed throw, but not a faster speed throw? A. Correct. [709]
A/Prof Cross was also asked in re-examination: Q. So far as running is concerned, you've told the Court that the experiments that you did were in full day light conditions, generally over even ground? A. Yes, correct. Q. What effect on running speed, if any, in your view, would it have if the person was running in complete darkness on uneven ground? A. It would have a major impact, I would imagine.
That issue was not further examined, neither were the jury enlightened as to the nature or extent of the "major impact" on running speed were the plaintiff running towards the edge of the northern ledge 30 metres above the rock floor holding Ms Byrne aloft at shoulder height in complete darkness preparing to "spear throw" her to her death.
In his evidence, Prof Elliott confirmed what A/Prof Cross made clear in re-examination: in effect, that the ideal poolside conditions were in no way comparable to the reduced light and the unevenness of surface that was assumed to obtain on the cliff top on 7 June 1995. After taking those environmental factors into account, Prof Elliott concluded that both the running and diving results (and it must be assumed the throw speed after a run-up) would be different in the actual circumstances of Ms Byrne's descent, if for no other reason than an uneven surface would make the approach to the edge more difficult. In cross-examination, Prof Elliott was asked (hardly surprisingly) what effect, in his view, a struggling person would have on the ability of another to throw that person at speed, to which he said: I have already said today that in the light - you know poor light would decrease one's ability to run and dive, quite unquestionably. If someone was struggling, I would seriously doubt that you could throw them with any great velocity at all. … Certainly not with the velocity required to get from the ledge to Hole A. [710]
Mr Tedeschi's evidence in these proceedings concerning this aspect of Prof Elliott's evidence is telling. After confirming that Mr Tedeschi did not re-examine Prof Elliott, Mr McClintock asked the following questions preparatory to that issue: Q. ... Now I wish to suggest you had a duty as a Crown to ensure that the experts that you called complied with the Expert Witness Code of Conduct, didn't you? A. I'm not sure that the code of conduct actually applied then, but certainly if it did apply, yes, part of the obligation of the instructing solicitor is to ensure that the code of conduct has been made available to an expert witness and has been signed. Q. You can take it that the code of conduct was applicable and that Professor Cross acknowledged it. But you see, even if the code of conduct hadn't been applicable, part of your obligation as a Crown would have been to ensure that the evidence of any expert witness is put fairly before the jury. That's correct, isn't it? A. I think it goes a lot further than that. I think as a Crown Prosecutor, one has an obligation to ensure that expert evidence is reliable and based upon proper levels of expertise. Q. You see, what I want to suggest to you, that you knew in 2008 that if an expert witness had a qualification to put upon an opinion that that expert witness was to express, that was something that you were bound to lead. You agree with me, don't you? A. That - that's a very general proposition, it's very difficult for me to answer that in - in - in general terms like that. It would depend on what the qualification is and - and what it's qualifying. Q. I'll be concrete about it. You see, Professor Elliott, in those two questions and answers, has put a significant qualification on his confirmation of the accuracy of Professor Cross's results. A. I think that-- Q. Please, I haven't finished my question. A. Sorry. Q. The significant qualification was that in effect if the person was struggling, she could not be thrown to hole A. That's right, isn't it? A. Can I have the page back, please? Q. Please. 11002. A. What he said is, he was asked, "What effect would a struggling person have on the velocity, the ability to throw at a speed?" His answer was, "I've already said today that in the light, you know, poor light would decrease one's ability to run and dive quite unquestionably." That was obviously not responsive to the question. He then goes on to say, "If someone was struggling I would seriously doubt that you could throw them with any great velocity at all." You've suggested that when Professor Cross expressed some opinions about a similar topic that it was outside-- Q. Please. A. --his field of expertise. I-- Q. Please. HER HONOUR Q. No, that's not the question. A. Your Honour, I am answering the question. What I-- MCCLINTOCK Q. I don't believe you are-- HER HONOUR Q. No, stop. The question that was asked and I'll just remind you. A. Yes. Q. Whether you considered it was part of your responsibilities as a Crown Prosecutor to adduce any qualifications on any expert opinion or conclusions adduced and relied upon in proof of the Crown case. A. I thought-- Q. And you said - just a moment, please. You said that it was difficult for you to answer that question in general terms, which I must say, I accept. You said it would depend upon the terms of the qualification and what it was that was being qualified. Mr McClintock has then taken that up and proposed to put it to you in concrete terms. As I understand it, it is that significant qualification as expressed by Mr Elliott, if he is a Mr-- MCCLINTOCK: Professor. HER HONOUR Q. Namely, that in his view were the person being thrown struggling, that would impact directly on velocity of the throw and moreover. And putting it as Mr Terracini has, in concrete terms, certainly were Ms Byrne struggling, her body would not have travelled with a speed sufficient to get her from the ledge to hole A. Now, that I have read and understood to be the qualification that Mr McClintock suggests to you qualified the ultimate opinion that Associate Professor Cross expressed and that opinion adduced by you. Namely, in his view Ms Byrne could have reached from the northern point to hole A, period. Nothing, as I understand it, was led by you as to it being a necessary qualifier on that conclusion that she was not struggling, if I've made that clear. A. I understand, your Honour. Q. Now, that's where we're at and it's a not insignificant issue and you will be given every opportunity, of course, to deal with it. A. I understand, your Honour. HER HONOUR: Mr McClintock, again, I apologise for interrupting, I've done it twice in the first hour this morning, which is regrettable, let's see if I can avoid doing it again, Mr McClintock. WITNESS: Would you like me to answer the question? MCCLINTOCK Q. Would you? I'm sorry, that's not for me to say. MCCLINTOCK: I apologise, your Honour. HER HONOUR: Yes. Q. Yes. A. I, I don't recall what my thought was then about that evidence but when I look at it now what I see, now, is a lay opinion not an expert opinion, the sort of opinion that any person would be able to give about a struggling victim being thrown to her death. And the fact of the matter was that she did end up in hole A, so whether she was struggling or not, whether she was conscious or not, she ended up in hole A. So somehow she got there. And - so the, the expression - the qualification that you described, that if she was struggling she couldn't have got to hole A is rather irrelevant because she'd got to hole A somehow. MCCLINTOCK Q. You see, it's not irrelevant, though, to the question whether she got to hole A by being thrown, is it? A. I, I, I think it is. Because that was the only way that she could have got to hole A. Q. You see, Professor Elliott was a biomechanics expert, wasn't he? A. Yes. Q. Unlike Professor Cross? A. I think their areas of expertise intersected in relation to the science of movement. Q. You'd opened to the jury, of course, on the possibility that Ms Byrne was conscious when she was thrown, hadn't you? A. No, I think I specifically said to the jury that, that we didn't know whether she was conscious or unconscious. Q. You're quite correct. But you'd certainly addressed the jury on the possibility - well, conscious unconscious involves the possibility that she was conscious when she was thrown, that's correct, isn't it? A. I specifically wasn't hypothesising either. I very deliberately made a decision that I was not going to suggest what her condition was at the time she was thrown because there was no evidence of it. Q. I appreciate that you left it open to the jury when you opened the case, whether she was conscious or unconscious, I appreciate that. But certainly you put in the jury's mind - and I am not criticising you at this stage - the possibility that she was conscious, that's correct, isn't it? A. I did suggest either possibility, I left it entirely open. Q. What I want to suggest to you is when you heard those questions and answers from Professor Elliott you realised that 50% of your case had just evaporated, that is, the case that depended upon her being conscious. Do you agree with me or not? A. No, I disagree with you for the reasons that I have just stated just a few moments ago, that she ended up in hole A by being thrown there so whether she was conscious or unconscious was irrelevant to that issue. Q. This evidence, in fact, didn't come as any surprise to you, did it? A. I can't recall. Q. You knew, I want to suggest, that Professor Elliott was going to say something like this, didn't you? A. I don't recall. Q. You'd agree with me if you did know it you would have had an obligation to lead it from Professor Cross in chief, wouldn't you? Professor Elliott in chief, I apologise. A. That's, that's a difficult question to answer. That's a hypothetical question because it infers that I am putting to the jury that she may have been conscious, whereas I specifically avoided any suggestion of whether she was conscious or unconscious. So I, I, I, I - if I had been aware of it, I, I may well have led it but I can't say that it's one of those things where I would definitely have led it. Q. I, I just want to understand-- A. I don't recall. Q. I just want to understand what you say about those two questions and answers - or the dialogue between Mr Terracini and Professor Elliott that appears on lines 12 to 20 on the page in front of you. Do you say that that evidence had no significance in the context of this trial? A. No but if, for example, Professor Elliott had said in his report, "If she was conscious and struggling I have some doubts that she could have been thrown to end up in hole A" I may very well have thought to myself, "Well, that's not part of his scientific expertise, he's advancing a, a lay opinion that really is a matter for the jury." And in any event, it's of very little relevance because she ended up in hole A so whether she was struggling or not doesn't, doesn't really affect the fact that she ended up there. So if he - if there had have been that material in, in his report and I can't remember whether it was or not, I may well have decided that it was a lay opinion and did not need to be led. Q. One, it's not a lay opinion, is it? I suggest that to you. A. It is a lay opinion, in my view and, and-- Q. Two, you've made up in the witness box the suggestion that it's a lay opinion, haven't you? A. I, I think that you suggested that Professor Cross's opinion of a similar kind was a lay opinion-- Q. Would you answer my-- A. --and not based on his expertise. I, I think it's a lay opinion and I agreed with you that when Professor Cross gave his opinion about struggling victims that it was also a lay opinion. Q. I am asking you about a man who was a professor of biomechanics, which deals with the motion of the human body and matters such as this, that's right, isn't it? A. I still think it's-- Q. It's not Professor Cross. A. I still think it's a lay opinion. Q. Let's see how - and therefore, you thought it could be discounted for that reason, did you? A. No, I didn't think it should be discounted but I thought that it was - if, if there was material like that in my possession and as I said, I can't remember whether there was, if I formed the opinion that it was - if I was of the view that it was a lay opinion then I may well have decided not to lead it because it was a lay opinion and because it was irrelevant. Q. Irrelevant? A. Yes. Q. Are you seriously suggesting to her Honour that those two questions and answers were irrelevant to the trial? A. For the reason that I've already explained twice before, she ended up in hole A somehow, whether she was struggling or not. So an opinion that she could not have ended up in hole A if she was struggling was of dubious relevance for the reason that I've stated. Q. How she got to hole A was of critical relevance in the case, wasn't it? You know that? A. Absolutely. Q. Of critical relevance to that question was whether she was conscious and struggling, in which case she could not have been thrown to hole A, that was Professor Elliott's evidence. You knew that was of critical relevance in the trial, didn't you? A. No, I didn't. Q. I want to suggest to you that when you deny that you're simply telling an untruth and you know it's an untruth? A. No, that's not right. [711]
The plaintiff submitted that given the Crown's reliance on A/Prof Cross's evidence that the "spear throw" technique was the only possible throw technique that could cover the distance from the cliff edge to Hole A and that the poolside tests were the only material he relied upon to substantiate his ultimate conclusion that Ms Byrne was thrown by the plaintiff to her death employing that technique, no other conclusion is open other than that Prof Elliott's evidence seriously undermined the Crown case and that Mr Tedeschi was conscious of that fact. I should add before leaving Mr Tedeschi's evidence that I consider it disingenuous in the extreme for him to suggest that Prof Elliott's evidence was a lay opinion and irrelevant given that he was qualified by the Crown as a biomechanist and that there was no objection by Mr Tedeschi to the evidence he gave in cross-examination.
The plaintiff further submitted that A/Prof Cross's single "limp throw test" did nothing to support the proposition that an unconscious person could be thrown the distance to either Hole A or Hole B, and that the Crown case could not be maintained through to verdict for that reason.

[126]

The issue of a limp and unresponsive unconscious woman

As noted, the logical corollary to the recast Crown case in Mr Tedeschi's closing address is that her body would have been limp and unresponsive when she was raised to the plaintiff's shoulder height in preparation for the "spear throw"; when she was carried by him at shoulder height over the 4-metre run-up to the edge of the cliff and as she was thrown over it.
A/Prof Cross was cross-examined at length in these proceedings about the sufficiency of the single test to support his concluded view that the "limpness" of the female volunteer did not have any material impact on the speed at which she was launched. The following lengthy extract exemplifies his approach and what I consider its obvious flaws. After confirming that, despite the request from Mr Tedeschi in November 2004 he conducted no further tests to simulate an unconscious woman, he gave the following evidence: Q. Did you have a discussion with the Director of Public Prosecutions or, that is, Mr Tedeschi, about that? A. About why I didn't? Q. About the fact that you didn't? A. No, because I've just answered in the email that, that I've already done that test. Q. Can I just move to something different? HER HONOUR: I'm sorry, Mr McClintock, may I? MCCLINTOCK: Please, I'm sorry. HER HONOUR Q. Do I understand you to be in effect answering the question asked of you by Mr Tedeschi in the reported results from the limp throw test you conducted in June 2004? A. Correct. Q. The question that Mr Tedeschi was asking you was whether if the person being thrown was unconscious whether that state of unconsciousness would impede the distance the person could be thrown. That was the question that was asked of you, was it not? A. Correct. Q. Did you consider that question to be adequately answered by the results reported on page 10 which are before you on the screen? Just have a look at the screen please. That's page 10 of your second report. Just have a look. That is where you reporting that the taller man, nominated as male A, through the woman subject once inviting her to be as limp as she could be, I assume, and that the reported result was that in that throw 4.71 metres launch speed was obtained; is that right? Have I got that right? A. Correct. Q. Are you, in effect, offering the opinion that a limp body would not in any way in your view impact on launch speed? A. Correct. MCCLINTOCK Q. That is, of course, a matter of which you had no expertise whatever? A. No, I'd just finished taking that measurement and I found that there was no significant difference in the launch speed. That was my experimental result. I had the expertise to present my result and to conduct the test. HER HONOUR Q. You only conducted one throw? A. Yes, correct. For the simple reason - I mean I would have preferred to have done more tests - but the simple reason was the woman being thrown was quite scared that she was going to be dropped if she remained limp. [712]
Mr Tedeschi was also cross-examined about the extent to which he considered, and apparently accepted, that the single "limp throw test" did not derogate from the integrity of the conclusion A/Prof Cross expressed in his second report (and in each of the reports that followed) that the only explanation for Ms Byrne's descent to her death (irrespective of whether she landed at Hole A or Hole B) was that she was thrown head first in a "spear throw" by a strong man.
It was put to Mr Tedeschi in cross-examination that after having read and considered A/Prof Cross's second report, he was fully aware that the single "limp throw test" was an unsatisfactory basis upon which to support the proposition that an unconscious woman could be thrown to Hole A or Hole B. He denied recognising there was any deficiency. He gave the following evidence: Q. One limp throw I'm asking you about. A. I can't recall whether there were other limp throws that were done. My analysis of his five reports together was that he had come to the conclusion that limp or un limp, a strong male could only throw a - an adult female at that speed using the one technique that he had identified. He spent a lot of time testing other techniques with one thrower or two throwers and he was not able to detect any other method of projecting a person at that speed except for the spear throw. So that was the significance of his evidence and - and whether it was a limp throw or a non-limp throw, there was only one way in which a body could be thrown at that speed to get Caroline Byrne to hole A. [713]
It is useful in considering Mr Tedeschi's attitude to the adequacy of the "limp throw test" to use as a starting point, when the hypothesis that Ms Byrne might have been thrown limp and unconscious from the cliff was apparently first raised with A/Prof Cross. Reference has already been made to the issue being of obvious concern to Mr Tedeschi given the requisitions (extracted above). The defendant submitted that a requisition sent by Ms Turner should not be taken to reflect anything about the knowledge or state of mind of Mr Tedeschi as the Senior Crown Prosecutor. Whilst that might be true as a general proposition, the terms of the requisitions, their timing and the clarification Mr Tedeschi insisted be made to them leaves no reason to doubt Mr Tedeschi knew that the requisitions had been sent and had endorsed their terms.
Even when invited in the proceedings to review the video recording of the "spear throw" tests, Mr Tedeschi again repeated what he claimed was his view at the time of advising Mr Cowdery that a charge of murder should be brought (and, it must be inferred, at the time of adducing the evidence from A/Prof Cross at committal and trial), namely that the "limp throw test", and the throw speed that was generated in that single test, bore a sufficient relationship to throwing Ms Byrne unconscious or disabled to her death and that it was unnecessary to seek any further elaboration of the test, or to draw the jury's attention to the fact that it was a single test and one in which the volunteer had actively braced herself as she was launched. In short, Mr Tedeschi maintained in cross-examination the position attested to in his statement of October 2016 that he considered Ms Byrne's state of consciousness or capacity (whether she was conscious, unconscious, or some state in between) no impediment to advancing the Crown case theory that she was "spear thrown" to her death.
In furnishing his second report through to his evidence at trial, and in his evidence in these proceedings, A/Prof Cross held trenchantly to his opinion that the single "limp throw test" he undertook at poolside in June 2004 was an adequate basis for him to conclude that were Ms Byrne unconscious at the time that she was lifted and thrown from the cliff top, the launch speed necessary for her head to reach Hole A could nonetheless be achieved. As A/Prof Cross expressed it, from that single test he determined there was no reason to suppose that if Ms Byrne were unconscious, her physiological state or comportment would have any bearing at all on the speed at which she could be launched by the putative strong man from shoulder height in the "spear throw" he described, despite only one test, the third of four throws, purporting to simulate that scenario.
I have no hesitation in concluding that the single "limp throw" test executed in June 2004 lacked sufficient probity to support the Crown case that a "spear throw" of an unconscious person of Ms Byrne's height and weight could be thrown at a sufficient launch speed to cover the distance from the cliff top to the landing point, whether it is measured from the closest point to Hole A, being the northern ledge, or the closest point to Hole B, being the southern ledge. Although the video record of the poolside testing of the "spear throws" in June 2004 was shown to the jury (as it was viewed by the Court in these proceedings) and whilst it is self-evident from the video that, save for one of the throws, the volunteer was wholly compliant, Mr Tedeschi did not invite A/Prof Cross, and A/Prof Cross did not make it clear that the testing regime and the results generated from it were qualified by the obvious fact that the poolside conditions did not in any meaningful way replicate the conditions that must have obtained when, on the Crown case, Ms Byrne was "spear thrown" to her death. It took the trial judge to draw attention to the extent to which the female volunteers cooperated with the thrower, and that they were instructed to do so, in order to alert the jury to the issue. Even then, Mr Tedeschi did not invite A/Prof Cross to make express what I consider were essential and obvious qualifications to his ultimate opinion, qualifications that I find it difficult to accept that Mr Tedeschi could have failed to appreciate.

[127]

The shotput throw

In addition to what the plaintiff contends was the inappropriate and unfair use Mr Tedeschi made of his closing submissions to change the Crown case by inviting the jury to accept the likelihood that Ms Byrne was unconscious at the time she was thrown to her death, the plaintiff submitted Mr Tedeschi also changed the presentation of the "spear throw" to a "shotput throw" to overcome difficulties he knew had been revealed in the spear throw mechanism.
The plaintiff contended that the "spear throw" was represented by Mr Tedeschi in closing submissions, not only in a different light, but referable to a technique that was nothing like the "spear throw" technique that A/Prof Cross had demonstrated in his evidence, and nothing like the throw technique that A/Prof Cross had utilised in the various poolside throw tests.
After inviting the jury to accept that the evidence had established that Ms Byrne impacted on the rocks headfirst into Hole A, Mr Tedeschi reminded the jury that A/Prof Cross's evidence was that Ms Byrne would not have been able to dive that distance, even from the closest launch point on the northern ledge, but that he had also been at a loss for some time as to how anyone could have thrown Ms Byrne that distance. The submission was then put in the following way: He did a whole lot of testing of single men and two men throwing subjects in various ways and it was only after a lot of testing that he came to consider what he calls the spear throw. In reality, it is not a spear throw. "Spear throw" is misnomer because with a spear you put your arm back and throw a spear. It is more the sort of thing that shot-putters do where they hold the ball right close to their shoulders and then go round and round and finally throw the ball from the shoulders, using not just their arm strength but their body strength, all their body strength - their upper shoulders, their upper body, their lower body, even their legs and feet - to propel that shot-put as far as they can. So that's the sort of action that we are talking about rather than a spear. But let's call it a spear throw for the purposes of argument. Professor Cross conducted his experiments and came to the view that a strong man who was able to bench-press 100 kilograms would have the strength to spear throw a 57 kilogram woman on his own or in combination with someone else. [714] (Emphasis added.)
In his evidence in the proceedings, Mr Tedeschi was invited to accept the proposition that the action he described in the extract above has "absolutely nothing to do with any test done by A/Prof Cross". Mr Tedeschi gave the following explanation: [T]he similarity with the shot put throw is that it uses the shoulder and upper chest muscles to achieve the force of the throw, whereas the spear throw involves putting the arm completely back and throwing it forward in the manner of a javelin. I, I, I considered that it was more similar to a shot put throw than a javelin throw in terms of the description that Professor Cross had given and how he had - had explained the muscles that they used to achieve that sort of throw. And that was what I was trying to convey to the jury. There was no real magic in the words "spear throw" or "shot put throw". What I was seeking to convey to them was how that particular throw was able to achieve a much greater launch speed than any of the other throws that he had experimented with. [715]
Mr McClintock put to Mr Tedeschi that by utilising the concept of a "shotput throw" technique he misrepresented A/Prof Cross's tests to overcome the problem that had been revealed with the "spear throw" technique. He rejected that proposition and said, in response: I used the term - reference to a shot put thrower in my - in an attempt to explain to the jury how it was that the sort of throw that had been experimented with by Professor Cross and which had been shown on the videos that were played to the jury was able to achieve a greater launch speed than other methods of throwing a female subject. [716]
Mr Tedeschi accepted (as is self-evident from the video evidence of the poolside tests exhibited in the trial) that it was no part of the Crown case, and was no part of the experiments conducted by A/Prof Cross, that Ms Byrne was thrown with one hand - the conventional technique for throwing a shotput. As Mr Tedeschi made clear in his evidence, and again as is self-evident, A/Prof Cross's evidence and his submissions to the jury about it, referred to a technique that required the thrower to use both hands.
In defence of the proposition, implicit in Mr McClintock's cross-examination, that he was the source of the asserted similarity between the "shotput throw" and the "spear throw", Mr Tedeschi gave evidence that he recalled that analogy being used by A/Prof Cross himself, although, understandably, Mr Tedeschi had no immediate recall of where in A/Prof Cross's reports that reference was made.
On my interrogating the parties as to whether that was evidence led from A/Prof Cross at trial or referred to in one or more of his furnished reports, it became clear that the evidence was first led from A/Prof Cross at committal. His evidence at committal was read onto the record by Mr McClintock and the following questions asked about it. Q. You see, I'm going to come back to this page, but can we just quickly go to page 6614 and 6615, and perhaps they can be on the screen at the time. You see, this is the committal proceedings and you've got Professor Cross in the box and you take him, in the middle of 6614, to the films that he'd taken and then you ask him to give a brief description-- A. Yes, and he - he actually says: "It became - it became apparent that what was required was a spear throw technique which is a little bit like a shot put but with a different action. You can see it in the film where the thrower picks up a woman, holds the woman under the chest and between the legs, takes a run and throws the woman, and in the process transfers all the momentum of the thrower to the woman so that her launch speed increases by the fact that the thrower's actually running and has some momentum himself." Q. You've picked up the point that I was about to take you to. You see, he says "a spear throw technique which is a little bit like a shot put but with a different action". A. Yes. Q. "You can see it in the film." A. Yes. Q. He's clearly drawing a distinction between the two because he uses the word "different action", doesn't he? A. Yes, and - and - and I conveyed exactly the same, I said it's a little bit like a shot put. [717] (Emphasis added.)
Further, in his evidence-in-chief at trial Mr Tedeschi asked the following questions: Q. And you gave evidence on Friday that the conclusion that you came to was that the only high-speed throw that was able to get up to 4.5 metres per second involved what you called a spear throw? A. Correct. Q. And you demonstrated a spear throw involving holding the upper body with one hand around the area of the chest or neck and the lower body in the vicinity of the crutch with the other hand? A. Yes. Q. And, using the muscle power of the shoulders, almost in the form that a shot-put is thrown? A. Yes; and in addition there, sir, it was necessary for the thrower to take a short run-up preceding the throw. Q. Can you tell us how short a run-up is required in order to do a spear throw? A. Two metres would be sufficient; 3 metres would gather a little extra speed; 4 metres maximum. Anything more than 4 metres, the thrower would run the risk of propelling himself over the edge when he threw. Q. Now, you gave us some details about the police officers which you tested doing a spear throw? A. Yes. Q. I think that you described that there were either two or three male police officers who were throwing a female police officer? A. Yes. [718] (Emphasis added.)
I am not persuaded that Mr Tedeschi's incorporation of the shotput throw in his closing submissions constituted a change in the throwing action or technique that was fundamental to the Crown case theory that Ms Byrne was thrown to her death. That said, it was a submission that technically strayed beyond the evidence led at trial, since none of the expert witness called by the Crown or the defence were invited to align the physical action of a shotput throw, or the muscle groups that are engaged in executing that throw technique, with the "spear throw" that A/Prof Cross had designated as the only throw that could achieve the required distance. It must fairly be said, however, that on reading the transcript of Prof Elliott's evidence, he was permitted to demonstrate such an action.
In the plaintiff's final submissions, it was not suggested that Mr Tedeschi's invocation of a change in technique from a "spear throw" to a "shotput throw" was responsive to the evidence Prof Elliott had given in cross-examination where, in drawing an association (cf an actual correlation) between bench press ability and throw strength, he said: If one uses a more shot-put type of throw, then I'd suggest a bench-press person who is better at bench-pressing would be able to throw further. [719]
I note that although Mr Tedeschi was asked in cross-examination to justify his utilisation of an analogy between the throw by which Ms Byrne was launched to her death and a child being launched skyward in a swimming pool by a parent, that was ultimately not the subject of any criticism in the plaintiff's final submissions. Mr Tedeschi gave evidence that he utilised that analogy in order to convey to the jury why it is that a person using shoulder and upper chest muscles, would be able to throw a person a great distance by reference to something with which they might be assumed to be familiar. Again as is clear from Mr Tedeschi's evidence, he maintained the position that despite his elaborated description of a shotput thrower and the necessary engagement of all muscle groups to execute that throw, he only ever intended that the analogy be deployed to emphasise the shoulder and upper chest strength in the thrower, which he maintained was properly sourced in A/Prof Cross's association between bench press ability and throw strength.

[128]

The association between bench press ability and throw strength

It is the plaintiff's case in these proceedings (as it was when he appealed his conviction) that the asserted correlation between the strength of a male thrower referable to his capacity to bench press a given weight, and the ability of a man with that capacity to throw a given distance (relevantly from the northern ledge to reach Hole A), was without any scientific foundation and that A/Prof Cross knew that any conclusion based upon bench press test results he had available to him would need to be heavily qualified by reason of the quantity and quality of the relevant data. It is the plaintiff's case that Mr Tedeschi was also aware of the caution that needed to be applied when inviting the jury to utilise the so-called correlation between the ability to bench press 100kg and to throw 57kg at 4.5 m/s (the so-called "bench press test results") as a source of extrapolating to a person's throw strength, and that he deliberately did not adduce that evidence through A/Prof Cross, or through Prof Elliott, as evidence of his malice.
Mr Tedeschi opened the Crown case to the jury on the basis that the only explanation for Ms Byrne's body being found nine metres from the base of the cliff was that she was "deliberately and very forcefully thrown out by a very strong man". [720] The concept of a "strong man" [721] or "very strong man" [722] was used consistently in Mr Tedeschi's opening address in the context of both alerting the jury to the Crown's reliance upon A/Prof Cross to establish that proposition, and to the various experiments he performed which the jury were invited to accept provided a scientifically sound basis for the Crown's primary submission that the plaintiff was the "strong man" that murdered Ms Byrne.
In alerting the jury in his opening to the throwing manoeuvre that A/Prof Cross had considered was the only mechanism by which Ms Byrne could have been thrown to her death (being the "spear throw") Mr Tedeschi described the technique as involving "the use of the [thrower's] shoulder and upper body muscles to assist in the throw". [723] He said: It is the same sort of throw that's used in either shotput or javelin throwing. Basically, what it involved is a single strong male holding the female up at shoulder level with one arm under the upper body or the neck and the other arm in the crotch area and throwing the female using what we call a "spear throw" from the shoulder. [724] (Emphasis added.) The transcript of the opening address indicates that Mr Tedeschi then demonstrated that throw for the jury's consideration.
In elaborating upon the tests undertaken by A/Prof Cross to simulate the "spear throw", Mr Tedeschi said: What [A/Prof Cross] found was that the strongest male, who was a police officer and who was able to bench press 120 kilograms in a gym - now, a bench press is where you lie down and do the weights like this up above you". [725] Again the transcript indicates that Mr Tedeschi demonstrated that action.
He went on to say the second strongest officer was able to bench press 95 kilograms: … What [A/Prof Cross] found was that the strongest police officer was able to throw the female subject at 4.7 and 4.8 metres per second; quite a bit more than the 4.5 metres per second required for Caroline Byrne to end up where she did. The other police officer, who was able to bench press 95 kilograms, was also able to get up to 4.5 metres per second. [726]
Mr Tedeschi then went on to submit as follows: Now, the evidence will show that at the time of Caroline Byrne's death, the accused was a lot bulkier, stronger, musclier than he is now and in fact he was working out almost daily doing weights at a gym, and he was able to bench-press at least 100 kilograms himself. So the evidence will disclose that he was well strong enough to be able to do a spear throw of Caroline Byrne to get her to a speed of 4.5 metres per second, sufficient so that she ended up in the position where her body was found. Of course, the spear throw, with the back arm doing most of the pushing, would account for the rotation of the body so that she would end up in the head-first position. I should also tell you that to do a spear throw of a person from shoulder height only requires a speed of 4.4 metres per second to get to where Caroline Byrne's body was found. The reason for that is if somebody was to run off the cliff, their centre of gravity is at about waist height. If somebody is held at shoulder height, the centre of gravity is at about shoulder height; the centre of body mass is at about shoulder height. So there is that little bit extra of height, perhaps half a metre or so, and that little bit of extra height means that you don't need quite as much speed to get the body out as far as pyramid rock, the hole at pyramid rock. So, in fact, you only need 4.4 metres per second. The Crown case is that because of the location of Caroline Byrne's body, there is one, and only one, way that she could have ended up where her body was found, and that is that someone, someone very strong, lifted her up and threw her using this spear throw. The Crown case is that that person was the accused, and he was well capable of throwing her that distance. … All of Professor Cross's data and his conclusions have been checked and authenticated by a Professor Bruce Elliott, who is a professor from the School of Human Movement and Exercise Science at the University of Western Australia. As I have mentioned to you already, Professor Cross has already published two papers in scientific journals about his conclusions concerning this very case. [727] (Emphasis added.)
In leading A/Prof Cross in examination-in-chief, Mr Tedeschi invited his attention to his report of 8 March 2006 (the sixth Cross report) and what he described in that report as a tabulated set of data referable to the age, height and weight of Male A and Male B (the throwers), and the age, height and weight of the plaintiff, in turn associated with their ability to bench press nominated weights on one repetition and sets of six repetitions. Male A's single bench press was tabulated at 95 kilograms and Male B's at 120 kilograms. (Sets of six presses for Male A were tabulated at 85 kilograms and 100 kilograms for Male B.) The plaintiff's ability to bench press (as tabulated) was limited to one lift at 100 kilograms. There was no weight ascribed to the plaintiff's ability to repeatedly bench press 100 kilograms or any kilogram weight. In respect of Male A and Male B there was also a column designated for their maximum throw speed measured at metres per second, those speeds having been derived from throw tests in June and October 2004. Obviously, no throw speed was ascribed to the plaintiff.
Mr Tedeschi asked A/Prof Cross the following questions about that data: Q. And what did you find about whether or not there is a correlation between bench-pressing ability and throw ability? A. There was a correlation, although it was not quite as strong as I thought it might have been. But there was a correlation, in the sense that the lighter members of the team, who could only bench-press lighter weights, were not able to throw the bag as fast as the heavier members of the team who could bench-press heavier weights. Q. So the heavier members of the team who could bench-press heavier weights were able to throw the bag the greater distance? A. No, the greater speed. Q. The greater speed, I am sorry? A. Yes. Q. And of the nine subjects that you tested, are you able to say, from the speed that they threw the 25 kilogram bag, how many of them would have been able to throw a 57 kilogram person at 4.5 metres per second? A. I was not able to say precisely. I wouldn't - I would rather test them throwing a 57 kilogram bag, but I didn't do that. But, nevertheless, one can estimate from the kinetic energy that was imparted to the bag and the kinetic energy that was required to throw Caroline Byrne that the heavier members of the football team would have been able to throw Caroline Byrne with the correct amount of kinetic energy, based on those 25 kilogram throws. Q. Can I take you to page 9 of your last report? A. This is the April 2008 report? Q. Yes. A. Yes. Q. Page 9. Are you able to tell us, from the graph that you drew and from the speed, either horizontally and/or horizontally and vertically, the absolute speed that was obtained by these footballers, these nine footballers, how many of the nine would have been able to throw Caroline Byrne at 4.5 metres per second? A. I did not do that calculation, but I would estimate, looking at the graph, that the six - maybe there is more - perhaps seven of the nine would have been able to throw Caroline Byrne at sufficient speed, but would I really need to analyse that in more detail. Q. Based upon your testing of these footballers, did that confirm your view that the accused, Gordon Wood, who could bench-press 100 kilograms, would have been able to throw Caroline Byrne at the required speed of 4.4 metres per second in a spear throw? A. Yes. [728]
That evidence was led from the jury without the tabulated results being exhibited. After adducing the data referable to Male B, what was then led from A/Prof Cross was that on every "spear throw" of a female volunteer, in the tests undertaken in June 2004 and again six months later, he was able to exceed a launch speed of 4.5 m/s. Mr Tedeschi then led the same information as it related to Male A. Male A, who was older, 20 kilograms lighter but 10 centimetres taller than Male B, but a reduced ability to bench press, achieved a maximum throw speed of 4.3 m/s.
A/Prof Cross was then invited by Mr Tedeschi to tell the jury about the data that he had been provided with as it related to the plaintiff. It is clear that for the purposes of preparing the report of 8 March 2006, A/Prof Cross was provided with information specific to the plaintiff (namely, his age, height and weight) and that he had the capacity to bench press 100 kilograms on a single lift. I have already noted in summary the effect of the sixth report at [547] that the information concerning the plaintiff's bench press ability was entirely reliant upon a statement obtained from Mr Stephen Duval dated 25 November 2004. There is nothing in Mr Duval's statement or the evidence adduced from him by Mr Tedeschi at trial to suggest that the plaintiff could bench press more than 100 kilograms on more than one repetition, or that he could deadlift 100 kilograms. He asked the following questions: Q. Were you told that Mr Gordon Wood, according to the evidence, was able to bench-press 100 kilograms? A. Yes. Q. Were you told that he was 32 years of age? A. Yes. Q. And did you plot his bench-pressing ability to try and assess whether or not he would be able to obtain the maximum throw speed of about 4.4 metres per second in order to be in a position to be able to throw Caroline Byrne to the correct location? A. Yes. I compared the bench-press and throw ability of subjects A and B with the bench-press ability of Gordon Wood. Gordon Wood had an intermediate bench-press ability and, therefore, I estimated that he would be able to throw Caroline Byrne at a speed of about 4.5 metres a second, based on just that data. Q. Which is just above what's required for Caroline Byrne to end up in the correct location? A. Yes. [729]
Mr Tedeschi then adduced, in a series of leading questions, the experiments that A/Prof Cross designed to test the relationship between bench pressing ability and "spear throwing" ability, the object of which, Mr Tedeschi agreed in his evidence in these proceedings, was to invite A/Prof Cross to express an opinion as to whether increased bench pressing ability correlated with increased throwing ability. He asked A/Prof Cross the following non-leading question: Q. And would you describe to the court what sort of testing you did to see whether there was a correlation? A. The nine members of the Sydney University Football Team underwent training for a period of some months before I tested them. Part of their training was bench-pressing. So, their bench-press ability was well-known and well recorded. I then lined them up one at a time on the university oval and they were given a 25 kilogram punching bag to throw. The reason it was only 25 rather than 60 is some of the members of the team could not conveniently handle a 60 kilogram punching bag. It is difficult to hold and throw. So we opted for a 25 kilogram bag, since the smaller members of the team could conveniently throw that. So all nine members were asked to throw the 25 kilogram punching bag as fast as they could in a horizontal direction using a spear throw technique, which is an over-arm type of throw, but using both hands. They were allowed to run up two or three metres before they threw. Each of them threw the bag three times. I measured the speed at which they threw the bag. So that was nine 3s are 27 different throws, which I have record on video film, on calibrated film, so that I could know the distances and the times and work out the speeds. And then I plotted a graph of the throw speed versus their bench-press ability. But, technically, I worked out the horizontal throw speed, in other words, the speed in the horizontal direction, even though some of them threw the bag up in the air at an angle to the horizontal. But one can work out the horizontal component of that speed, which is what I did, and then I plotted the graph, and I put that in my most recent report of April this year. [730]
In his closing address, Mr Tedeschi advanced the following submission to the jury: [A] bench-press is not just one push. A bench-press is a series of up and down with a weight. So this accused was able to presumably bench-press, a significant number of times, 100 kilograms. [731]
He went on to submit that the plaintiff could "easily" [732] bench press 100 kilograms.
In its submissions, the defendant conceded that there was no basis in Mr Duval's evidence for Mr Tedeschi's submission that the plaintiff was able to bench press 100 kilograms on successive presses. The defendant submitted, however, that submission should be understood as an unintentional overstatement of the evidence by Mr Tedeschi, as distinct from a deliberate misstatement. The defendant relies for that submission on Mr Neil's re-examination of Mr Tedeschi where, in a leading question, he put the following proposition: Q. Do you remember the passage of evidence about Mr Duval and Mr Wood would each do bench presses of 100 kilos and they would spot for each other? A. Yes. Q. Your understanding at the time of what "spotting" was? A. My understanding of that is that the person who's spotting is there standing at the head of the person who's lying down with their back on the bench doing the bench press and in, in case they're unable to lift the weight they're there to take the bar from them so that it doesn't fall back on them. Q. Did you understand in the context of the evidence that Mr Duval was explaining he and Mr Wood would alternate in doing series of bench presses? A. Yes, that was my understanding of his evidence. Q. Did you consider that evidence to be a sufficient basis for you in your closing address to the jury to submit to them, in effect, that Mr Wood could easily lift 100 kilos? A. Yes. Q. I don't think you ever suggested that Mr Wood could lift 120 kilos? A. I don't think I did. [733]
In the plaintiff's submission, for Mr Tedeschi to resort in his evidence to a misunderstanding as to what "spotting" involves (namely where one person is supervising multiple bench presses by a person who is lying down) was not open. Rather, it is the plaintiff's submission that Mr Tedeschi intentionally misrepresented Mr Duval's evidence to support the Crown's ultimate submission that the plaintiff had the capacity to spear throw at a launch speed equivalent to Male B, the only thrower to reach a speed equivalent to 4.5 m/s or greater. I accept that Mr Tedeschi's intention was to invite the jury to draw a parallel between the plaintiff and Male B based on what he said in his submission to the jury was the plaintiff's ability to bench press 100kg a significant number of times, he did qualify that submission by the interpolation of the word "presumably", although he did not make it clear on what basis that presumption was made.
In circumstances where he explained in his evidence in these proceedings what underpinned that assumption, I am not able to reach the positive conclusion that his misrepresentation of the evidence was intentional, neither am I able to conclude, as the plaintiff submitted I would, that it was a deliberate overstatement responsive to what Mr Tedeschi knew was Prof Elliott's unwillingness to confirm any correlation between bench press ability and throw strength.
A separate but related question arises in the context of the plaintiff's further submission that it was not open or proper for Mr Tedeschi to endeavour to meet what the jury would inevitably have concluded was a lack of scientific rigour in A/Prof Cross's alignment between bench press ability and throw speed by advancing the following submission: My learned friend, Mr Terracini, has challenged the evidence on the basis that there's no scientifically proven link between bench press ability and ability to throw a large weight. Ladies and gentlemen, do you need a scientific paper from some scientific journal to be able to come to that conclusion? Isn't it just good common sense that if someone is of superior ability at doing bench presses with weights, they are going to be better than average at throwing a large weight. [734]
It is instructive to trace the provenance of what Mr Tedeschi submitted the jury would conclude (as a matter of common sense), namely that a person with superior bench press ability "would be better than average" at throwing a large weight (a submission which I note was a departure from the way he opened the Crown case on the issue where reliance was placed on A/Prof Cross's tests).
In A/Prof Cross's third report of 17 February 2005 (a report which addressed a series of requisitions Det Insp Jacob forwarded for his consideration following a conference between A/Prof Cross and officers of the DPP, including Mr Tedeschi on 15 February 2005), he referred to what he described as "a rough guide" [735] to the strength of the male throwers referable to their capacity to bench press both a single repetition and six repetitions, emphasising that "no claim is made as to the exact relation if any between throw speed and bench press figures". [736] A/Prof Cross went on to say in that report: Upper body strength is one parameter that will determine throw speed but throw technique is another. [737]
It was not until A/Prof Cross furnished his sixth report of 8 March 2006 that there is any reference to the plaintiff's physical characteristics and his capacity to bench press 100 kilograms, albeit only in a single repetition. From the analysis of that data, the conclusion A/Prof Cross reported was: [T]hat a maximum throw speed of about 4.5 m/s could be expected for a person of [the plaintiff's] strength, more than sufficient for a landing at [Hole A]. [738] (Emphasis added.)
A/Prof Cross gave evidence in these proceedings that he included that opinion responsive to a request from Mr Tedeschi.
The evidence concerning the purported correlation between bench press ability and throwing ability (including throwing utilising a "spear throw"), emerging as it did for the first time in A/Prof Cross's sixth report, was also responsive to a requesting letter of 12 February 2008 forwarded by Det Insp Jacob following a conference with Mr Tedeschi and others within the ODPP. The very first requisition in that requesting letter was: Provide a correlation between bench press ability and throwing ability. This may involve conducting experiments with a number of male persons to ascertain throw speeds -v- bench press ability. [739]
A/Prof Cross was cross-examined as to the circumstances in which he was asked, and answered, that requisition when he furnished his sixth report. He confirmed that when he described, in his third report, an association between upper body strength and throw capacity as a "rough guide only", he was not asserting that there was any precise relationship between throw speed and capacity to bench press. A/Prof Cross was also taken to his book, published in 2009, where he said that whilst he used the collected data to calculate "that a throw speed of 4.5 m/s would require a bench press ability of 100 kilograms" [740] he did not include that calculation in his third report "since it was not a convincing enough result". [741] He explained what he meant by using that phrase. He said he had only what he described as "two data points" [742] (namely, the bench press ability of males A and B) and that was an unreliable basis upon which to predict the performance of a third person. He readily conceded that one cannot validly "interpolate or extrapolate from those two data points, you need more data". [743]
In an email A/Prof Cross sent to Det Insp Jacob on 16 February 2005 after the conference the previous day with Mr Tedeschi in which the requisition (extracted above) concerning the potential relation between bench press and throw speed was raised, A/Prof Cross referred back to his third report where the tabulated data concerning bench press and throw speeds was referred to, albeit in the qualified terms. He said in that email: I came up with an interesting summary table for Tredeschi (which means Germans in Italian) regarding the speeds at which Camille (61 kg rather than CB's 57 kg) was thrown. [744]
He then inserted the tabulated summary and said: I didn't include this table in any previous report because I thought the result might not be very reliable or meaningful. But now I look at it, it seems that I might have underestimated its value. I think we both agreed some time ago that such a table could be misleading. I'll have a look to see if I can find any previous study that relates throw speed or lifting ability to upper body strength. There has to be some relation." [745] (Emphasis added.)
He agreed in his evidence that when he referred to the table not being "very reliable or meaningful", [746] that was consistent with what he had later reported in his book, namely that the results were "unconvincing", [747] that is to say, having only two data points from which to extrapolate, the results were "not particularly scientific", that it is "not particularly meaningful in a scientific sense". [748]
Mr McClintock went further and directed A/Prof Cross to an email he sent to Mr Tedeschi on 8 March 2006 (the date of his sixth report) where, under a subheading that read "Issue 2: Throw speed vs bench press ability", he said: When throwing a heavy weight, there was a strong correlation between throw speed and upper body strength, as measured by the standard bench press method, although other factors appear to be involved as well. [749]
After including the tabulated results of the bench press ability of Male A, Male B and the plaintiff in a draft of his sixth report which he sent to Mr Tedeschi for his consideration, Mr Tedeschi inquired, by return email of 21 February 2006, as to whether the very extrapolation between bench press ability and throw strength that A/Prof Cross was concerned should not be made could be made. Mr Tedeschi said in his email as follows: I don't understand why you speculate that a male of superior strength such as Gordon Wood would only get a maximum of 4.5 m per second. If he was the same strength as your best subject, wouldn't he be able to do better than that. Can you speculate that [the plaintiff] is clearly capable of a throw of 4.5 m per second and possibly even more. [750]
A/Prof Cross agreed in his evidence in the proceedings that he read the email as: [A] clear invitation by Mr Tedeschi to you to speculate that [the plaintiff] is capable of a throw of 4.5 metres a second and possibly even more. [751]
When asked whether he responded to that request by making it clear to Mr Tedeschi that he could not provide that opinion, based as it was on either pure speculation or an unreliable extrapolation from insufficient data, he said: I can't remember what I, what I said to him but I'm, I'm fairly certain that I would've said no I can't do that. [752]
It was clear that he gave that answer having no immediate recall of that being precisely what he did not say in his sixth report. When he was taken to that report where he gave the opinion that "that a maximum throw speed of about 4.5 m/s could be expected for a person of [the plaintiff's] strength, more than sufficient for a landing at [Hole A], [753] he said he expressed himself that way because Mr Tedeschi asked him to.
Mr McClintock, perhaps understandably, did not leave the issue there but sought and obtained the following concessions from A/Prof Cross in cross-examination. Q. Did you tell Mr Tedeschi that it was speculation and unreliable data? You would have, wouldn't you? A. Verbally I can't remember whether I told him that or not but it was clear in my mind as we've just been discussing, the two data points is, is not particularly reliable. Q. There's a couple of things wrong - and I'm sure you'll acknowledge this - with what you've said in that last paragraph. The first is that it excluded the strength of all persons who, in your opinion, couldn't throw properly? A. Correct. Q. Second, you had no expertise yourself to determine whether there was a correlation between ability to bench press a particular weight and ability to throw at a specific velocity, did you? A. Apart from the analogy with a young person and an old person where there is an obvious correlation. Q. Apart from that you had no expertise to determine whether there was such a correlation? A. Correct. Q. You had done no specific tests to determine the correlation between the two, had you? A. Not at that stage, no. Q. You've drawn a correlation with Gordon Wood excluding all the results of people that didn't throw at high enough speeds, hadn't you? A. Correct. Q. You only considered their bench press ability, didn't you, nothing else? A. Correct. Q. It's, in fact, completely meaningless data, isn't it? A. No, incorrect. Q. You'd come so far as to agree when it was unreliable? A. No, it's unreliable to interpolate or extrapolate two data points but it's, it's - one can speculate just how reliable it might be or might not be and it's subject to further verification. [754]
It is important for present purposes that when A/Prof Cross gave his evidence at trial, he volunteered no qualification of any kind on the relationship between bench press ability and throw speed, and Mr Tedeschi led none from him which would have made it clear to the jury that no reliable conclusion could be drawn from the experiments that he had undertaken using Male A and Male B, and that his assumption about bench press strength and throw speed was no basis for drawing any reliable conclusion as to the plaintiff's capacity to throw a 57kg weight at a sufficient launch speed to reach Hole A or Hole B, given the impact of other factors. Those factors included, as A/Prof Cross had made clear himself in the third report, throw technique and, equally importantly because he well knew the raw data was an insufficient base upon which to base any scientific conclusion.
Equally as importantly, if not tellingly, Mr Tedeschi put this submission to the jury in closing (some aspects of which I have already extracted, but which warrants being extracted in full): Stephen Duval gave evidence that he would sometimes spot for him. What "spotting" means is that when the accused was doing bench presses he would stand behind him to be able to take the weight if he was not able to push it up. He says that the accused was able to bench-press 100 kilograms. Now, ladies and gentlemen, a bench-press is not just one push. A bench-press is a series of up and down with a weight. So this accused was able to presumably bench-press, a significant number of times, 100 kilograms. Of course, Mr Duval also gave evidence that the accused would do a whole lot of other exercises for building up the muscles of other parts of the body. 100 kilograms multiple times at the gym. 57 kilograms would be light weight in comparison. You have heard evidence from a number of witnesses that, for an 80 kilogram man, who regularly works out, 100 kilograms is not a particularly large weight to lift. Yes, you would have to be training, and you would have to be training regularly, but it's not an extraordinary weight. My learned friend, Mr Terracini has challenged the evidence on the basis that there's no scientifically proven link between bench-press ability and ability to throw a large weight. Ladies and gentlemen, do you need a scientific paper from some scientific journal to be able to come to that conclusion? Isn't it just good commonsense that if somebody is of superior ability at doing bench presses with weights, they are going to be much better than average at throwing a large weight? In any event, Professor Cross did do a study. He did a study with a whole lot of, I think they were police officers, of varying abilities. He assessed what their bench-press ability was. He then got them to throw a 25 kilogram weight and he found there was a direct correlation between the bench-pressing ability and the their [sic] throwing ability. You might think he hardly needed to do an experiment to work that out. They were footballers, that's right, not police officers. It's been suggested, quite correctly, by Mr Terracini that the ability to throw is not just your shoulder and arm capacity, it involves a will the lot of our muscles as well. Yes, and they're exactly the muscles that the accused is building up every time they went to the gym, and did all the exercises and weightlifting that you heard from Mr Duval that he would do. It was not as though he was building up his arm muscles only and was a weakling in the rest of his body. So, we submit that you would come to the conclusion that the accused could easily lift 100 kilograms; that he had the physical capacity to spear throw a 57 kilogram woman at 4.5 metres per second. [755] (Emphasis added.)
In cross-examination, Mr Tedeschi was taken first to A/Prof Cross's email to Det Insp Jacob of 16 February 2006. It was put to Mr Tedeschi that he asked A/Prof Cross in that conference whether he could provide a correlation between the tabulated results of bench press ability and throw strength of the male volunteers and that of the plaintiff. Mr Tedeschi said: I have no recollection of what was discussed at the meeting so I … can neither agree nor disagree. [756]
Mr McClintock then put the following questions: Q. I want to suggest to you that Professor Cross replied to that request by saying something like he only had two data points and any opinion he expressed on that would be unconvincing, do you agree with that? A. I said to you I don't recall the conference so I can't tell you what was discussed. Q. You see, I want to suggest to you that you told Professor Cross to put in his next report information about my client's bench press ability so that you could link him - or so that it said he had sufficient strength to throw Ms Byrne the distance necessary, do you agree with that or not? A. I have no recollection of the conference. Q. Let's just look at the sixth report, which begins on page 3707. You see that's a report from Professor Cross dated 8 March 2006? A. Yes. Q. In this report, in contrast to the immediately preceding report, if you go to 3712, you will see there's a table there and below the table is set out - and you see the table contains the suggestion that my client could bench press 100 kilos? A. Yes. Q. It's in that table and the three paragraphs below it that the link is made to establish that my client had sufficient strength to throw Ms Byrne the distance, that's correct, isn't it? A. I can see the last paragraph there refers to your client being able to bench press 100 kilograms according to a witness. Q. You see, this material was included at your request, wasn't it? A. I don't recall. [757]
Mr Tedeschi was then taken to his email to A/Prof Cross of 21 February 2006 set out at [549] above.
He agreed in cross-examination that he used the word "speculate" but he said he intended to convey a request of A/Prof Cross to "estimate" [758] the throw speed the plaintiff may have been able to achieve referable to the information A/Prof Cross had about the plaintiff's bench press ability. He denied that he was deliberately inviting A/Prof Cross to guess or engage in speculation beyond inviting him to express an opinion based upon verifiable facts or inferences that might be drawn from the available information. He disagreed with the proposition. While it might be thought unwise for Mr Tedeschi to have expressed himself as he did, I am not persuaded that in so doing he was in fact inviting A/Prof Cross to engage in speculation if for no other reason that he did so in writing. The plaintiff also put it to Mr Tedeschi that when he closed the Crown case to the jury on the basis that "[Gordon Wood] had the physical capacity to spear throw a 57 kilogram woman at 4.5 metres per second", [759] that submission was based on nothing but "mere speculation" [760] on his part. He disagreed and said: It was firmly and solidly based upon the evidence of Professor Cross and which had been confirmed by Professor Elliot, and which had been published in one of the world's foremost forensic science journals in America. I considered that the evidence amply justified that submission. [761]
The plaintiff submitted that the Court would readily find that Mr Tedeschi well knew by the time of the committal in June 2007 that A/Prof Cross's evidence as to the correlation between bench press ability and throw speed was heavily qualified and that it had neither been confirmed by Prof Elliott when he considered the A/Prof Cross report of 8 March 2006, nor referred to in the published articles to which he referred. The plaintiff submitted that Mr Tedeschi's answer reveals "his preparedness to give the convenient rather than the truthful answer in cross-examination". [762]
Insofar as the plaintiff asked the Court to find that Mr Tedeschi's evidence on this issue showed an inclination to dissemble, the defendant submitted that this was not squarely put to Mr Tedeschi in cross-examination in breach of the rule in Browne v Dunn. I do not regard that submission as well found founded. The challenge to Mr Tedeschi's honesty was, in my view, sufficiently put to comply with the plaintiff's obligation under the rule.
I cannot see, for my part, how Mr Tedeschi's claim that his submission to the jury was "solidly based" [763] on the evidence of A/Prof Cross, and "confirmed by Professor Elliott", [764] or that the evidence "amply justified" [765] the submission he advanced. I have those doubts based upon my analysis of the evidence and what I consider flows from that analysis. Ultimately of course, the submission Mr Tedeschi advanced, when pared back to its essence, was that the jury would be satisfied that the plaintiff "had the physical capacity to spear throw Caroline Byrne to end up where her body was found" and that A/Prof Cross's evidence, at the most general level, was one source of evidence upon which that submission was based.
In addition, while I have some concerns that Mr Tedeschi either wittingly or unwittingly influenced A/Prof Cross to render his opinion on the plaintiff's throw strength in accordance with what he thought Mr Tedeschi wanted to hear, I am not able to give A/Prof Cross's evidence that he "told" Mr Tedeschi that he could not draw a correlation between bench press ability and throw strength any weight, given the concerns I have expressed about A/Prof Cross's reliability and honesty as a witness in these proceedings in a range of related respects.
In the result, I am not satisfied that the bench press issue, as a standalone issue, advances the plaintiff's case in proof of either of the elements of the tort.

[129]

Has the plaintiff established he was prosecuted maliciously without reasonable and probable cause by Mr Tedeschi?

Having found, for the reasons set out at length above, that at least by the time Prof Elliott gave evidence the Crown was without evidence sufficient to enable a jury to find that a totally unresponsive limp body (the comportment of an unconscious person) could be "spear thrown" under sufficient speed to reach Hole A, and no evidence upon which they could find that a struggling woman could be thrown the distance, I am satisfied that by application of the objective test in proof of the fourth element of the tort of malicious prosecution, the plaintiff's trial was maintained to verdict without reasonable and probable cause.
Since A/Prof Cross's evidence was fundamental to proving the precise manner of Ms Byrne's death (namely a "spear throw" by a strong man) and part of the evidence relied upon to disprove suicide beyond reasonable doubt, and because his findings were flawed in multiple respects rendering proof of the interrelated facts underlying that scenario deficient, I am also satisfied that the proceedings were initiated without reasonable and probable cause. I should emphasis, however, that I am not of the opinion that the prosecution was initiated without reasonable and probable cause because the possibility of suicide per se was not able to be excluded beyond reasonable doubt. As I made clear earlier, there was, in my view, a sound basis in the evidence assembled by Strike Force Irondale and reported upon by Det Insp Jacob in the Sufficiency of Evidence Report (including A/Prof Cross's first report that the point of recovery rendered a trip or a step or drop off the cliff edge unfeasible) to justify Det Insp Jacob's opinion that suicide could be excluded as an explanation for Ms Byrne's death. I am also satisfied that nothing emerged in the two years before Mr Tedeschi advised the charge should be laid which warranted him coming to a different view.
With the plaintiff having established his prosecution for murder was initiated and maintained in the absence of reasonable and probable cause by application of the objective test for proof of that element, the remaining question is whether the plaintiff has also established that Mr Tedeschi's approach to adducing the evidence from A/Prof Cross in the ways discussed (including in breach of his obligations as prosecuting counsel) reveals that he had a lack of subjective belief in the sufficiency of the evidence to support a charge of murder, such as might provide a basis for inferring that he prosecuted the plaintiff maliciously.
In closing submissions, the defendant sought to defend Mr Tedeschi's approach to the way in which he adduced A/Prof Cross's evidence at trial on the basis that Mr Tedeschi was entitled to expect that his evidence would be fully tested in cross-examination, including, it must be assumed, an expectation that the adequacy of the tests A/Prof Cross conducted to support the conclusions he reached, and the integrity of the experimental environment in which those tests were conducted, would also be tested. Whatever expectations a Crown Prosecutor in Mr Tedeschi's position might or might not expect will be the position taken by cross-examining counsel, it is for the Crown Prosecutor to fully and fairly adduce evidence from an expert witness in order to ensure that any assumptions, experiments or assumed facts upon which the opinion is based are identified and proved. I do not understand the defendant to submit otherwise.
The defendant further submitted that Mr Tedeschi's approach to adducing evidence from A/Prof Cross was defensible since the evidence was never presented nor relied upon by the Crown on the basis that the "spear throw" test results had any necessary application to a struggling woman. Further still, the defendant queried whether a prosecutor is obligated to spell out that a particular piece of evidence does not relate to topics that it does not purport to relate to. If those submissions are to have any traction (and, in my view, in this case they do not), I would need to be satisfied that despite A/Prof Cross accepting in these proceedings that his ultimate conclusion that Ms Byrne was "spear thrown" to her death was necessarily qualified by the fact that she offered no resistance to being lifted, and that she was unconscious when she was thrown, Mr Tedeschi had no corresponding obligation to ensure that qualification, and any additional matters of fact or any underlying assumptions that qualified his opinion or conclusion were patent and express before inviting the jury to rely on his evidence. That is clearly not the law.
The plaintiff submitted that Mr Tedeschi could not have misread or failed to appreciate that the dangers and difficulties that A/Prof Cross identified in his fifth report in throwing a struggling woman from height off a cliff in the dark. The plaintiff submitted that for Mr Tedeschi to advise Mr Cowdery that a prosecution of the plaintiff for murder should be initiated based in part on A/Prof Cross's fifth report, and then to take the approach at the plaintiff's trial that he was not obliged to adduce the qualifications to A/Prof Cross's ultimate conclusion (that they did not apply if a woman was conscious and struggling), was evidence both that he had no honest belief in the sufficiency of the available evidence to support the plaintiff's indictment on the murder charge and his determination to urge a jury to convict him of murder despite that belief as evidence of malice.
The plaintiff went further in closing submissions contending that it would have been apparent to any competent lawyer that A/Prof Cross's evidence did not apply were Ms Byrne conscious and resisting the attack on the cliff edge, further supporting his case that Mr Tedeschi could not have honestly concluded that A/Prof Cross's evidence sufficiently grounded a prosecution of the plaintiff for her murder. In the plaintiff's submission, that conclusion is not only the result of the application of simple forensic logic, it is also a matter of common sense when it was obvious that all of the poolside experiments conducted by A/Prof Cross involved compliant and conscious human subjects in conditions in no sense comparable to the conditions that prevailed on the night of 7 June 1995.
Were the issue of the "struggling woman" the only qualification that the plaintiff submitted was not fully and fairly adduced by Mr Tedeschi (as I consider it was not), it may have been open to find the explanation for Mr Tedeschi's failure to adduce that evidence in oversight or incompetence; or perhaps a failure to appreciate the need for him to be astute to the obligations of an expert witness to comply with the Expert Witness Code of Conduct when giving evidence. If this were the explanation for the approach Mr Tedeschi took to adducing A/Prof Cross's evidence, it would not support a finding of malice in the legal sense.
On the analysis I have applied to the evidence, however, the matter does not rest there. There is also the question whether Mr Tedeschi was obliged to ensure that the poolside "spear throw" tests applied with appropriate scientific rigour to account for the possibility that Ms Byrne was unconscious and therefore wholly incapacitated when she was thrown. There is also the further question whether he was also obliged to ensure that A/Prof Cross was led in such a way that the jury were aware that he was not suggesting that there was a demonstrable and scientifically verifiable correlation between a man's bench press ability and throw speed, only an association between the two, and even then heavily qualified. The defendant was at pains to point out that no objection was taken to the admissibility of A/Prof Cross's evidence on the basis that his tests were deficient in this respect or otherwise. While that is the case, neither did it permit Mr Tedeschi to disregard or dilute his independent obligation as a prosecutor to adduce A/Prof Cross's evidence fully and fairly.
Although I am driven to conclude that Mr Tedeschi breached his duties as a prosecutor by failing, in multiple respects, to adduce A/Prof Cross's evidence fully and fairly, the further question is whether I am able to comfortably conclude, to a level of reasonable satisfaction, that he did so deliberately. That is, that he did so knowingly. It is accepted by the defendant that were that shown to be the case it would strongly suggest Mr Tedeschi lacked an honest belief in the cogency of A/Prof Cross's evidence to support the Crown case that the plaintiff murdered Ms Byrne which may also operate to provide proof of malice by inference.
There is nothing in Mr Tedeschi's evidence to leave open the possibility that that when he adduced A/Prof Cross's evidence he simply overlooked ensuring that all necessary qualifications to his opinions and conclusions were adduced. Neither did he suggest that he had failed to appreciate that it was essential that he adduce A/Prof Cross's evidence in that way. To the contrary. Mr Tedeschi maintained the position throughout his evidence that he understood his obligations as a Crown Prosecutor when leading an expert witness, and that he had fully complied with those obligations.
In defence of that position Mr Tedeschi repeatedly had recourse to what he nominated as A/Prof Cross's "core findings", which he regarded as simply stated and readily understandable, such that no qualification or elaboration was necessary before a jury could confidently and comfortably accept and apply the "core findings" to the facts as the jury found them to be. The fundamental calculus applied by A/Prof Cross, confirmed as correct by Prof Elliot, was not in doubt at trial and is not in doubt here. The question is whether the calculus and the "core findings" that were generated from its application provided a sufficient basis upon which to construct the Crown case theory that Ms Byrne was "spear thrown" to her death by a strong man acting alone. I have already concluded that it was not.
That leaves open three conclusions, either: 1. What Mr Tedeschi did in leading A/Prof Cross's evidence was appropriate and fair in the circumstances of the trial and the way the Crown case was put; or 2. It was incompetence or a misunderstanding of his legal obligations that led to his failure to adduce A/Prof Cross's evidence fully and fairly; or 3. He knew that were he to lead evidence of the assumptions that qualified the conclusions A/Prof Cross reached, a fundamental flaw in the Crown case would be exposed (or at least damage done to the Crown case theory) and, with that knowledge, he deliberately avoided asking any questions that might have revealed limitations on both the adequacy of the "limp throw" test and the fact that a "struggling woman" would logically impede the successful execution of a spear throw, in the hope or expectation that the cross-examiner would not see the flaw, or not test A/Prof Cross's conclusions in such a way as would, or might, expose that flaw.
A further question is whether, once the flaws in A/Prof Cross's evidence and the Crown case theory were exposed (in particular after Prof Elliott gave evidence), Mr Tedeschi's default position was to change the Crown case to accommodate them.
From the various findings I have already made, the question posed in (a) above must be answered in the negative. The plaintiff has persuaded me, however, that whatever Mr Tedeschi's motivations might have been in recalibrating the Crown case in his closing address, there was no support in the evidence which allowed him to maintain the Crown case to verdict on the basis that Ms Byrne could have been thrown with sufficient velocity to reach Hole A or Hole B if she were conscious and struggling, and insufficient support in the evidence to maintain the same case to verdict were she limp and unconscious when she was thrown.
I also find it difficult to accept Mr Tedeschi's evidence that he considered himself justified in advising Mr Cowdery in 2006 that a prosecution should be commenced upon A/Prof Cross's "core findings" or that the case he opened to the jury in 2008 was sufficiently based on those findings. Although the concept of a "core finding" might have been a convenient and shorthand way for Mr Tedeschi to endorse what he considered to be the forensic utility of A/Prof Cross's evidence in his evidence in these proceedings, in my view, to have taken the approach at trial that the core findings (so-called) were sufficient to make out the Crown case, necessarily obscured the underlying complexities in the issues A/Prof Cross was retained to report upon and the fundamental flaws that were ultimately revealed in his analysis of those issues. For that reason alone, Mr Tedeschi's approach to adducing A/Prof Cross's evidence belies what is expected of a competent Senior Crown Prosecutor conscientiously applying himself to the conduct of a murder trial. It is, for that reason amongst others, that the explanation for his conduct in (b) above is not available.
As to (c) above, I am satisfied that it is possible that Mr Tedeschi considered that there were real problems with many aspects of the evidence of A/Prof Cross upon which the Crown case depended when he initiated the prosecution and that he very likely realised that those problems had been exposed when he maintained the case to verdict. I regard his evidence to the contrary as unpersuasive. Further, I also accept that it is possible that he might even have had a predetermined default position to change the Crown case in the event that the problems with A/Prof Cross's evidence were exposed during the course of the trial. However, I am unable to conclude, to the requisite degree of satisfaction, that he knew both when he initiated and maintained the prosecution through to verdict that the Crown case as to the manner of Ms Byrne's death was flawed at a fundamental level but that he determined to prosecute the plaintiff for her murder notwithstanding that state of belief or persuasion, or that he in fact utilised a pre-determined default position to change the Crown case once those flaws were revealed. That being the case, it follows that I am not persuaded that the plaintiff has proved that the prosecution was initiated and maintained by Mr Tedeschi without reasonable and probable cause by application of the subjective test for proof of that element of the tort.

[130]

Has the plaintiff proved Mr Tedeschi prosecuted the plaintiff maliciously?

Having established that in his role as a prosecutor Mr Tedeschi initiated and maintained the criminal proceedings against the plaintiff for murder without reasonable and probable cause (in this case, by the application of the objective test for proof of that element), the related but separate question is whether the plaintiff has discharged the onus of demonstrating that in doing so Mr Tedeschi prosecuted him maliciously. Proof of malice in this case requires the plaintiff to discharge the onus of proving that Mr Tedeschi's sole or dominant purpose in prosecuting him for Ms Byrne's murder (without reasonable and probable cause) was for a purpose other than for the legitimate purposes of the criminal law.
Were I to have concluded that the probabilities did favour a finding that Mr Tedeschi knew that the evidence was insufficient to support a prosecution of the plaintiff for murder (either when the proceedings were initiated by him on the furnishing of his advice to Mr Cowdery in February 2006 or, at the latest, when he maintained the prosecution of the plaintiff through to verdict in November 2008, or both), but that he prosecuted the plaintiff despite the deficiencies in his level of persuasion about the capacity of the available evidence to prove the manner in which the plaintiff killed Ms Byrne, that might have allowed for the inference to be drawn that in doing so he prosecuted the plaintiff maliciously. However, having resolved to the view that the plaintiff has established that he was prosecuted by Mr Tedeschi without reasonable and probable cause, but only by application of the objective test for proof of that element (that is, having concluded for the reasons set out above that the subjective test for proof of that element is not made out), proof that his sole or dominant purpose in prosecuting the plaintiff was malicious, by inference from proof of the objective absence of reasonable and probable cause alone, must not only be a possible explanation for the prosecution being initiated and maintained by Mr Tedeschi, but the more probable explanation for him doing so, consistent with the standard of proof encapsulated in s 140(2) of the Evidence Act.
Although the plaintiff did not address with clarity in his final submissions how he proposed malice would be proved in the event that I was not satisfied that he had demonstrated that Mr Tedeschi was without an honest and genuine belief in the sufficiency of the evidence to prove his guilt, it seems clear that the plaintiff accepts I would need to be persuaded that Mr Tedeschi constructed a case designed to convict him of Ms Byrne's murder, including, if necessary, by manipulating the evidence to conceal what he knew or considered might be revealed weaknesses in the Crown case theory as to how she died, and that he sought to achieve that objective by employing means which he knew were contrary to his legal and ethical obligations as a Crown Prosecutor. As I understand the plaintiff's submissions, it is that approach, said to be evidenced in large part by Mr Tedeschi's closing submissions, which is eloquent of proof that his purpose in prosecuting the plaintiff was ulterior to the proper invocation of the criminal law.
The precise nomination of a prosecutor's ulterior purpose in initiating and maintaining a prosecution without reasonable and probable cause might not be susceptible to precise appointment, perhaps because it is so arcane as to not be capable of discernment. Such may be the case here. However, that does not relieve the plaintiff of the obligation of persuading the Court that he was prosecuted maliciously by Mr Tedeschi, in the legal sense.
Nothing was put to Mr Tedeschi in cross-examination to suggest some particular ulterior purpose (personal or professional) in prosecuting the plaintiff, whether it be self-aggrandisement or a determination to be shown to be the prosecutor to successfully prosecute the plaintiff for a hitherto unsolved homicide, or for some other motive. Neither was it suggested to Mr Tedeschi that the criticism that this Court has levelled at him as a prosecutor in other trials, including by understating the weakness in the Crown case and overstating its strength contrary to the evidence in order to secure a conviction, exhibits a tendency to prosecute unfairly (see Anderson v R (1991) 53 A Crim R 421). Mr McClintock rested his case on proof of malice on what he submitted I would be satisfied were multiple and deliberate instances of prosecutorial misconduct. Mr McClintock submitted that I would also be satisfied that Mr Tedeschi lied in the answers he gave to the questions asked of him in cross-examination about that conduct, lies which he submitted I would find were deliberately told to conceal the fact that Mr Tedeschi knew at the time of the trial, and knows now, that the carefully constructed Crown case he advanced at trial allowed him to impermissibly press for a conviction, and that in achieving that objective he knew he was acting in breach of his ethical obligations.
Paragraph 16 of the FASC is the source of the plaintiff's pleaded case on malice. It alleges that Mr Tedeschi acted maliciously by seeking to convict the plaintiff of murder regardless of his guilt or innocence, contrary to the evidence and by employing means contrary to his obligation of fairness to achieve that objective, encapsulating what were alleged to be particular instances of prosecutorial misconduct in pars 16.59-68, 16.70-72. Those particulars are set out in full below (altered for syntax): 1. By submitting to the jury that the plaintiff was abusive, possessive and a control freak who oppressed Ms Byrne in circumstances where the evidence could not support that submission (par 16.59). 2. By making inappropriate submissions to the jury in relation to the plaintiff's motives, using speculative smear, speculative assumptions, and the exploitation of public rumour and the use of mere innuendo to compensate for inadequate evidence (par 16.52). 3. By linking Ms Byrne's death to Mr Rivkin and/or his business activities, and the plaintiff's job with Mr Rivkin he advanced an argument which was entirely speculative and internally inconsistent in recognition of the paucity of evidence underpinning it (par 16.53). 4. By submitting to the jury that the plaintiff killed Ms Byrne because she had some knowledge that would damage Mr Rivkin, in circumstances where there was no evidence to support such a submission, and contrary to the evidence of Mr Rivkin (par 16.66). 5. By submitting to the jury that the plaintiff's relationship with Ms Byrne was the cause of her depression in circumstances where the evidence could not support that submission (par 16.60). 6. By submitting to the jury that Ms Byrne was thrown by the sort of throw that shotputters execute in circumstances where the evidence could not support that submission - it being an invention of the prosecutor in the course of closing submissions (par 16.61). 7. By offering his own opinion to the jury as to how a person committing suicide would behave in circumstances where the evidence could not support that submission (par 16.62). 8. By changing the Crown case during the trial because of what the evidence revealed about the difficulties of throwing a struggling, conscious person, by suggesting that Ms Byrne was incapacitated or unconscious when thrown from the cliff top, there being no evidence to support the proposition that Ms Byrne was unconscious when she left the cliff top and no experiments to support the proposition that throwing either a struggling person or an unconscious or incapacitated person would be probative of the plaintiff's guilt (par 16.64). 9. By reading out a list of 50 questions that reversed the onus of proof. The difficulties created by Mr Tedeschi's conduct in this respect, were so significant that they occasioned a miscarriage of justice (par 16.65). 10. By failing to disclose to the Court and to the plaintiff's legal representatives that the "expert" A/Prof Cross had taken part in the investigative process for the purpose of collecting evidence to convict the plaintiff of the murder of Ms Byrne. 11. By misrepresenting that a photo of the scene of Ms Byrne's death was taken in 1996, when it was taken after 2003, a fact that the defendant, through Det Insp Jacob, admitted was known at the time of the plaintiff's trial. 12. By misrepresenting to the jury that there was a bush on the northern ledge that the plaintiff used as cover to throw Ms Byrne off the cliff, when the contrary was true. 13. By building the Crown case on what was termed by Mr Tedeschi as "the killer point", claiming that the plaintiff could see the body of Ms Byrne at the base of the cliff and knew where she had landed because he killed her. This submission was without foundation, inevitably flawed and utterly without logic (par 16.71). 14. By failing to comply with the required standards of fairness, thus denying the plaintiff a fair trial. 15. By misrepresenting Mr Doherty's evidence to the jury and in doing so breaching his obligation of fairness and detachment in that: 1. Mr Tedeschi sought to bolster the reliability of Mr Doherty's evidence by attempting to compare and link it to another alleged argument when that comparison was wholly without foundation. 2. Mr Doherty's evidence did not identify the plaintiff. 3. Mr Tedeschi's further submission explaining Mr Doherty's evidence as to why the deceased was slurring and sobbing being wholly without foundation.
Subparagraphs (f) and (h) above concern Mr Tedeschi's approach to adducing evidence from A/Prof Cross. I have already dealt with them at length and do not need to revisit my analysis of them. Subparagraph (j) was not the subject of any submissions on the issue of malice. Subparagraphs (k) and (l) will be dealt with here under the subheading "The significance of DJ". "The killer point" and "50 questions", respectively subparagraphs (i) and (m), will also be dealt with as separate questions. Subparagraphs (a) and (g) concern the question whether Mr Tedeschi's closing address exceeded proper bounds and, finally, subparagraph (p) concerns the evidence of Mr Doherty.
In final submissions, the plaintiff also put that to (n) above (the "killer point" issue) should be added the contention that for Mr Tedeschi to assert that the plaintiff "knew exactly what clothing Caroline was wearing", [766] despite Sgt Powderly not having "seen a thing", [767] was a deliberate misstatement of the evidence, and knowingly so, as further evidence of malice. The plaintiff also submitted that Mr Tedeschi's assertion that the plaintiff had "insider trader information" [768] to further advance the Crown's speculative submission on motive was also evidence of malice, as was his deliberate failure to adduce evidence that he perceived as contrary to the Crown case, as shown in the way he dealt with "the carpark issue" and "Ms Byrne's medical records", neither of which were pleaded as particulars of malice but which were relied upon in submissions as relevant to proof of that element of the tort. I have already dealt with the issue of Ms Byrne's 1992 hospital records. The "carpark issue" will be dealt with below.
Mr Tedeschi was cross-examined at length about his conduct as the Crown Prosecutor in the plaintiff's trial, with a view to establishing some or all of the particulars of prosecutorial misconduct set out above. He was also cross-examined at length as to his state of persuasion as to the sufficiency of the evidence to institute and maintain the prosecution of the plaintiff for murder, with a view to the plaintiff discharging the onus of establishing that he had no subjective belief in the sufficiency of the evidence to support a verdict of guilty, in further support of the plaintiff's submission that his prosecution of the plaintiff was actuated by malice.
Before turning to a consideration of the particulars of malice, it is necessary to deal with the plaintiff's further submission that I would be satisfied that Mr Tedeschi's failure to make an informed assessment of A/Prof Cross's credibility and reliability at the time that the proceedings were initiated, compounded by his reliance on A/Prof Cross's evidence to support the Crown case that Ms Byrne was thrown to her death without leading the evidence that operated to qualify A/Prof Cross's conclusions, is evidence of malice, even if his state of awareness had not crystallised to the point where he had actually formed the view (or reached the positive state of belief or persuasion) that the available evidence did not justify a prosecution of the plaintiff for murder.
Were I satisfied that Mr Tedeschi did fail to make an informed assessment of the probative weight of A/Prof Cross's conclusions as to manner of Ms Byrne's death, and that his reliance on his evidence to prove the Crown case was entirely misplaced for that reason (a finding I have made), the defendant submitted, at worst, that would be evidence of Mr Tedeschi's carelessness, inadvertence or a misapprehension of his legal obligations as a prosecutor when dealing with an expert witness, none of which would be sufficient alone, or in combination, to constitute malice. I accept that submission.
The defendant further submitted that even were Mr Tedeschi's conduct in his dealings with A/Prof Cross an expert witness found to be reckless, that is, even were I satisfied that he considered the risk that A/Prof Cross's involvement in the police investigation had influenced his approach to the question of how Ms Byrne descended to her death and that his evidence lacked the essential objectivity and impartiality, but that Mr Tedeschi determined to prosecute the plaintiff for murder based upon A/Prof Cross's evidence notwithstanding, that would also not amount to proof of malice. The plaintiff did not seek to make a case that Mr Tedeschi was reckless in his treatment of A/Prof Cross as a Crown witness or, for that matter, that he was reckless in the approach he took in his conduct of the Crown case generally by, for example, considering the risk that he may be exceeding the legitimate limits of his entitlement as a Crown Prosecutor to urge the jury in his closing submissions to return a verdict of guilty but that he took that risk notwithstanding in order to secure a conviction. Rather, it was the plaintiff's case that Mr Tedeschi acted in deliberate disregard of his legal and ethical obligations in "straining for a conviction" and that he did so consciously against the weight of the available evidence.
On the other hand, the defendant accepted that were I to find that Mr Tedeschi was at all relevant times aware that A/Prof Cross's opinion as to the mechanism by which Ms Byrne was thrown to her death was fraught with uncertainties (not least because of the paucity of the limp throw test) and, further, that he was also aware that inherent in A/Prof Cross's various calculations as to how Ms Byrne landed in Hole A (predicated on the theory that she was spear-thrown to her death from the northern ledge) was the unstated assumption that she must have been either unconscious or incapacitated and, further still, were I to also find that Mr Tedeschi deliberately failed to avert to those uncertainties and deficiencies in both the evidence he adduced from A/Prof Cross and that he changed the Crown case to accommodate them in his closing submissions because he knew to do so would be to reveal a major weakness in the Crown case, that would be conduct in flagrant breach of the legal standards by which Mr Tedeschi was bound as a prosecutor, as it would support the inference that he prosecuted the plaintiff maliciously.
For the reasons set out in above, I am not persuaded that state of affairs is made out. Were the plaintiff to have persuaded me otherwise, I would likely have concluded that the subjective test for proof of the first element of the tort was met, and I was not so satisfied.
The defendant did accept, however, that were I to conclude that in the transactional phase of the trial Mr Tedeschi exceeded the legitimate reach of his discretion as a prosecutor, either by deliberately not calling some evidence and/or by deliberately misrepresenting other aspects of the evidence and what it was capable of proving about the facts in issue at trial in order to secure a conviction, that would be evidence of malice. Unsurprisingly, the defendant also accepted that were I to conclude that Mr Tedeschi knew that the Crown case on motive was based upon "speculation, smear and innuendo" (or otherwise without a sufficient foundation in the evidence to support the legitimate drawing of an inference as to motive), and that he advanced the submission that the plaintiff was motivated to kill Ms Byrne to protect the relationship with Mr Rivkin with that knowledge, that would also be evidence of malice. Similarly, were I to conclude that Mr Tedeschi sought to bolster the evidence of identification by deliberately misstating the weight or worth of the evidence of Mr Doherty, the defendant accepted malice may also be proved.
The question is whether I am satisfied that malice has been proved by any one or more of these approaches referable to the plaintiff's legal and evidential obligation of proof.
In discharging his legal and ethical obligations as prosecuting counsel it is self-evident that Mr Tedeschi was obliged to tender any evidence that was relevant to the issues at trial, and from a credible witness or source, even were it to run counter to the Crown case. It is also self-evident that he was obliged to diligently present the Crown case with objectivity and detachment, including in his closing address. While it is not in every case that a prosecutor's failure to meet those standards will constitute malice, were I satisfied that Mr Tedeschi deliberately abandoned those responsibilities in order to secure a conviction, a finding of malice would follow.
In considering whether the plaintiff has satisfied me on the basis of proof of one or more of the particulars of malice, or perhaps by a combination of them, that the more probable inference is that Mr Tedeschi's sole or dominant purpose in prosecuting the plaintiff for murder was for a dominant purpose ulterior to the criminal law, I would also need to consider at least two competing hypotheses or explanations for what the plaintiff submitted I would find established about Mr Tedeschi's conduct as a prosecutor. While neither was advanced by the defendant, I am satisfied that they arise on the evidence and the way in which these proceedings have been conducted by the parties, including in their final submissions. They also arise in the assessment I am obliged to make of Mr Tedeschi as a witness in the proceedings. I will return to consider, those explanations after addressing the plaintiff's case on malice as pleaded and as further particularised in his closing submissions.

[131]

Examples of what the plaintiff relies upon as evidence of Mr Tedeschi "fighting or straining for a conviction" in his closing submissions (not particularised in the pleadings)

This Court has also recognised that inviting juries to determine factual issues on the basis of "how they would feel, how they would react, or what they would do" [769] has been described as a "dangerously wrong approach".
As Simpson J noted in GDD v R [2010] NSWCCA 62, both defence counsel and/or prosecuting counsel need to exercise caution when inviting juries to examine evidence from a particular point of view, and to be careful of the way in which that invitation is made. It is the plaintiff's submission that Mr Tedeschi failed to apply any caution, or any appropriate caution, on multiple occasions in the course of his closing submissions, one example being his invitation to the jury to put themselves in the position of Ms Byrne at the top of the Gap and the fear that would have accompanied her decision to commit suicide, in support of the Crown case that she did not. The submission was put in the following terms: At night-time, imagine on a cold wintery night with the wind blowing, not in sports clothing but in a denim jacket. Think of the fear that a person would have before they threw themselves off the Gap. [770]
The plaintiff submitted that in making that submission, Mr Tedeschi was fighting or straining for a conviction contrary to his obligation as a Crown Prosecutor. Mr Tedeschi denied that he was appealing to the jury's emotions and maintained the position that it was perfectly legitimate for him to advance the submission in those terms. In my view, although that is the type of submission cautioned against in GDD and, for that reason, should not have been put in precisely those terms, I do not regard the submission as so egregious in the context of the closing submissions as a whole that it amounted to an impermissible urging of the jury to apply emotion rather than reason in their deliberations.
I am not satisfied that the particular of malice in par 16.62 of the FASC is made out.
Mr Tedeschi also rejected the suggestion put to him in cross-examination that there was anything improper in commenting upon Ms Byrne's self-report to Dr Pan by the submission that: She had a lot to be depressed about: she wanted out; she couldn't see how to do it cleanly; she was fearful; she was fearful for her life; she was in a terrible situation. That's what she was depressed about. [771]
Despite the fact that Dr Pan did not give evidence that Ms Byrne identified her relationship with the plaintiff as the source of her feeling depressed, or for that matter that she was able to appoint any particular reason for feeling that way, Mr Tedeschi rejected the suggestion that he was applying "a speculative smear" [772] to prejudice the jury against the plaintiff. He gave the following evidence to justify what he claimed was a legitimate inference that the plaintiff was the primary source of her disturbed feelings, an inference that it was open to the jury to draw from all of the evidence. He said: A. … [W]hat I was making was clearly a submission to the jury. I was submitting to them in effect that if they put together the evidence of Dr Pan with all of the other evidence that I've already referred to, the evidence of her friends, the evidence of Mr Georgiou, the evidence of Ms McVeigh, the evidence of her family that she didn't like that the accused was unhappy with her working - sorry, that Caroline Byrne didn't like that Mr Wood wanted her not to work. He wanted her to stay at home and she was going to look after her. She didn't want that. She was very happy with her work. She told Dr Pan that it wasn't her work that was making her depressed. What I was seeking to convey to the jury was that, that one of the reasons that they could conclude why she may have been depressed was that she was in this terribly difficult situation where she wanted out of the relationship with Mr Wood, as she told Mr Georgiou. She was fearful of him. She was fearful of his reaction. She had expressed fears for her life. She was in a dilemma that I thought the jury would be able to emphasise with; that. numerous women who want out of relationships and who fear their partner's reaction to an announcement that they wanted out of the relationship, that it could have been that that she was depressed about. I considered that that was a submission that was open to me, based upon all of the evidence, not just Dr Pan. Dr Pan was a very small part of the submission. And of course Caroline Byrne hadn't disclosed any of that material about her relationship to Dr Pan. In effect she had gone to Dr Pan to get a referral, which Dr Pan had given her. Q. You connected what you said there with Dr Pan, didn't you? A. Look, I, I, I think I've expressed what my intention was in making that submission. Q. You see, I want to suggest to you that was just a speculation smear, intended to prejudice the jury against my client. That's what it was, wasn't it? A. It was not a speculation smear. It was an inference available to the jury on the evidence that I was inviting them to consider. [773]
I am not satisfied that the plaintiff has established that this aspect of Mr Tedeschi's closing submissions exceeded the legitimate reach of a submission he was entitled to advance for the consideration of the jury having regard to the full complement of the evidence bearing upon Ms Byrne's actual, or presumed state of mind, at the time of her consultation with Dr Pan. It might have been otherwise if Mr Tedeschi had sought to attribute a clinical cause for her depression as sourcing in the relationship with the plaintiff. I accept that was not what Mr Tedeschi intended to convey.
The particular of malice in 16.60 of the FASC is not made out.
Further examples of what are said by the plaintiff to be instances of Mr Tedeschi's prosecutorial misconduct, some but not all of which were pleaded as evidence of his malice, are as follows: 1. The significance of Ex DJ (pars 16.69 and 16.70 of the FASC); 2. The "carpark issue" (not pleaded as a particular of malice); 3. The tender of Ex DO (not pleaded as a particular of malice); 4. The "50 Questions" (par 16.65); 5. The "killer point" (par 16.71);
Leaving to one side, for the moment, the particulars of misconduct in (1)-(5) above, each of which the plaintiff submitted demonstrates Mr Tedeschi's preparedness to breach his fundamental obligations as a prosecutor to obtain a conviction at all costs, the plaintiff placed considerable reliance on what was said to be a particularly egregious example of Mr Tedeschi's deliberate and repeated misstatement of the evidence in his closing address designed by him to deliberately and improperly bolster the Crown case. This concerned the evidence of Mr Doherty upon whose evidence the Crown relied to make out a central component of the Crown case, namely that it was Ms Byrne who was being shouted at by the plaintiff in Military Road at Watsons Bay at 8pm of 7 June 1995, an argument that continued in the region of the cliff top at the Gap before her body was discovered at the base of the cliffs the next morning.
I have already set out Mr Doherty's evidence at the trial which was largely consistent with the account he gave to police in a number of statements between 1998 and 2004 (see [804]-[820]).
I have also stated my reasons for concluding that Det Insp Jacob and Mr Tedeschi were entitled to take into account his evidence as supporting a prosecution of the plaintiff for Ms Byrne's murder. It is not necessary to restate that evidence for present purposes, other than to emphasise that Mr Doherty's consistent description of the girl he saw on Military Road on the evening of 7 June 1995 was that she was "slurring her words and moaning", [774] "talking and slurring and moaning at the same time … sort of being combative, but I thought she was just too drunk and she wasn't making sense". [775] In cross-examination, Mr Doherty agreed that he told police in his first statement that the girl "seemed drunk or stoned or both", her voice was "slurring but was aggressive", her words were "all slurred. It was like a rant". [776] Mr Doherty was also emphatic in his evidence that he was unable to describe the girl, and he could not hear any of the words she used or words that the man directed at her, save as to describe the tone of their voices as indicating to him that they were engaged in a heated argument.
Before considering the plaintiff's complaint that Mr Tedeschi deliberately misstated the effect of Mr Doherty's evidence in his closing address in derogation of his duties as a prosecutor, it is necessary to place Mr Tedeschi's submissions on that subject in the wider context of the Crown case on motive.
As I have noted earlier, the Crown case on motive was two-fold, with each of the two motives interrelated factually. The first was said to be sourced in the plaintiff's concern about Ms Byrne's knowledge of Mr Rivkin's involvement with Offset Alpine Printing Company, as to which there were said by the Crown to be suspicions of dishonest share dealings, and in respect of which an enquiry had been initiated by the Australian Securities Commission, resulting in compulsory notices being served on the plaintiff and Mr Rivkin upon their return from overseas in May 1995. Mr Tedeschi submitted further that Ms Byrne could, as he expressed it, "do untold harm" [777] to the relationship between the plaintiff and Mr Rivkin as his employer, thus putting that working relationship in jeopardy and the plaintiff's financial security in jeopardy. The second motive was said to source from what the Crown submitted was the relationship between the plaintiff and Ms Byrne having deteriorated to such an extent that the jury would infer that by 7 June 1995 Ms Byrne wanted to terminate it, and that the plaintiff's distress at the thought of losing her, compounded by fears that Ms Byrne would jeopardise his relationship with Mr Rivkin, motivated him to kill her.
I should emphasise at this juncture that for the purposes of these proceedings, it is irrelevant that it was the view of the Court of Criminal Appeal that the trial judge was in error in permitting the Crown to advance the submission that Ms Byrne's presumed knowledge of information relating to Offset Alpine or Mr Rivkin's business dealings generally was capable of constituting a motive to kill. It does bear noting, however, that the Court was of the opinion that the trial judge failed to properly assess, and to rule accordingly, that the evidence in support of the first limb of the Crown case on motive was so thin that it amounted to unsubstantiated speculation, occasioning unfair prejudice to the plaintiff that no jury direction could eliminate.
Neither is it to the point for present purposes that the Court also observed that Mr Tedeschi's closing submissions confirmed the speculative nature of the implication that Ms Byrne had information which could have damaged Mr Rivkin, although the Court did acknowledge that Mr Tedeschi made it clear that the Crown did not allege that Mr Rivkin was in any way directly implicated in the murder. That said, the Court went on to find that because of Mr Rivkin's relationship with the plaintiff, Mr Tedeschi intended the jury to draw the inference that the plaintiff was assisted in killing of Ms Byrne by Mr Redding (one of his associates and work colleagues) in order that Mr Rivkin's commercial and other interests would be protected and the plaintiff's relationship with Mr Rivkin secured, despite being under direction from the trial judge (with which he complied) that he was not to advance the positive case that Mr Redding was the second man seen in the company of Ms Byrne and the plaintiff at Watsons Bay on 7 June 1995.
What is to the point is that the plaintiff pleads in pars 16.52, 16.53 and 16.66 of the FASC set out at paragraphs (b)-(d) above, the findings of the Court of Criminal Appeal that Mr Tedeschi misconducted himself in this way as a particular of malice: 16.52 The defendant, through the Crown Prosecutor, misconducted itself at the trial, making inappropriate submissions to the jury in relation to the plaintiff's motives, using speculative smear, speculative assumptions, and the exploitation of public rumour and the use of mere innuendo to compensate for inadequate evidence. 16.53 The defendant, through the Crown Prosecutor misconducted itself by linking Caroline Byrne's death to Rene Rivkin and/or his business activities, and the plaintiff's job with Rene Rivkin, and that this was entirely speculative and internally inconsistent, and a speculative construction, and recognised the paucity of evidence underpinning this thesis. … 16.66 The defendant, through the Crown Prosecutor, submitted to the jury that the plaintiff killed Caroline Byrne because she had some knowledge that would damage Rene Rivkin, in circumstances where there was no evidence to support such a submission, and contrary to the evidence of Rene Rivkin.
It will be necessary to return to consider whether that aspect of the plaintiff's case on malice is established after giving consideration to Mr Tedeschi's evidence where he details the basis for his continued belief that he had an adequate foundation in the evidence to maintain the submission that the plaintiff's motive to kill Ms Byrne was linked to his employment with Mr Rivkin; his knowledge of Mr Rivkin's affairs and Mr Rivkin's alleged "paranoia" [778] about information Ms Byrne had about his business and personal affairs. It is, of course, implicit in Mr Tedeschi's evidence on this issue, as it is with the way he dealt with other criticisms the Court of Criminal Appeal made of him, that he contests the Court's explicit findings that he misconducted himself in advancing the Crown case on motive and, in particular, that he invoked "speculation, smear and innuendo" in doing so.
Whatever Mr Tedeschi's evidence may ultimately reveal about his insight (or the lack of it) into his role and responsibility as a Crown Prosecutor, and even were I to conclude that he did misconduct himself in the way he constructed the Crown case on motive as the plaintiff alleges, that does not necessarily establish that in adducing evidence in the Crown case going to that issue and putting his closing submissions referable to the evidence, consistently with the ruling of the trial judge, that he acted maliciously in the legal sense. For reasons which I will develop later, a close analysis of Mr Tedeschi's attitude to the issue of motive and what that reveals now about his attitude at the time of trial in 2008, is crucial to determining whether the plaintiff has proved that he acted maliciously. On the approach I regard as correct as a matter of law (an approach implicit in the approach of the parties in their final submissions), I would need to reject Mr Tedeschi's evidence that he believed he had an adequate foundation to advance the Crown case on motive as linked to Mr Rivkin either as either untrue, or to be so untenable as to be unworthy of any weight, before I could find malice proved.
The second but interrelated aspect of the Crown case on motive was that Ms Byrne had resolved to terminate the relationship with the plaintiff, and that the plaintiff was panicked at the prospect of losing her, even if her intentions had not been unequivocally communicated to him. In this context, Mr Tedeschi also advanced the closing submission that the evidence well supported the jury finding that the plaintiff was a very "domineering, controlling person", and that he sought to dominate and control Ms Byrne to the extent that, as Mr Tedeschi expressed it in his evidence: In the last two days of her life … [the plaintiff] had succeeded in isolating her from her family, her friends, her work, in fact, from everyone other than himself.
In defence of the submission that the plaintiff was "abusive, possessive, and a control freak" (a particular of malice pleaded in par 16.59 of the FASC), in his second February statement Mr Tedeschi said: a. I believed that the submission that the plaintiff was abusive, possessive, and a control freak was not speculative and was one open to be put to the jury, having regard to the evidence before the jury. There was evidence that the plaintiff had been extremely possessive and controlling of Ms Byrne, and that in the latter stages of their relationship he had been inappropriately abusive towards her. My submissions on this topic referred directly to the evidence that had been led at the trial. I said to the jury: "What pressure was Caroline under? Caroline was under a lot of pressure too. The accused was putting pressure on her to marry. We heard that from a whole lot of people - from Tony Byrne, from Peter Byrne, from Narelle Cook, from Deanna Byrne and from a whole lot of other people - that the accused was putting pressure on her to marry and that she didn't want to marry at that stage. She wasn't ready for marriage. Between mid-April and the end of April, Caroline told her father that Gordon didn't want her to work. She said, "It's putting a lot of stress and strain on our relationship." What he wanted was to have Caroline as a little house Frau at home, sitting there making meals for him and being ready for him coming home and him providing everything for her. He wanted to cosset her up into a little cocoon so that he could keep her all to himself. Then, of course, we have got evidence of his extreme possessiveness of her; the extremely obsessive way in which he would constantly want to know where she was and who she was with. He must have been following her around because, whenever she had coffee or a meal with one of her friends, he would turn up, "Oh, look who's here? Here's Gordon. What a surprise. Wonder how he knew?" Natalie Butler said: "If Caroline wasn't available, if her mobile was off, Gordon would always ring me to find out if I was with Caroline, or if I knew where she was. And that happened on numerous occasions, a couple of times a week even. I'd get a call just out of the blue from Gordon to ask if I knew where she was or if I was with her, and I would say "no", or, if I was, I would say, "Yes, we're here." But the majority of the time I wasn't with Caroline when he called. And if we were - if Caroline and I had decided to go for lunch somewhere or go and have a coffee, pretty much most times Gordon would appear. He would just turn up. He'd see us at the cafe, or he would just arrive out of the blue while we were having our time together. And I always thought that was a bit strange because he always seemed to know where we were." June Dally-Watkins gave evidence that the accused was constantly phoning the office looking for Caroline. Narelle Cook gave evidence that Gordon was constantly ringing Caroline wanting to know where she was and who she was with. Deanna Byrne, Caroline's sister, gave evidence that she wouldn't have tolerated such an extremely possessive and controlling behaviour, but that Caroline didn't seem to mind. The accused, himself, in the "Witness" programme at page 24 confirmed that he would ring her up to four to five times per day. So, ladies and gentlemen, we submit to you the accused was a control freak. But Caroline was such a lovely gentle and naive person that, for a long time, she didn't recognise the dangers of such possessiveness. She didn't realise how oppressive such possessiveness would be in a long-term relationship. She thought it was cute. But, ladies and gentlemen, by the time she spoke to Angelo Georgiou, when the accused had become abusive to her, she realised that his attention to her had a very negative side. It was very dark and unwanted and verging on being stalking, and it had taken on a completely different character. You might think that by that stage she had wised up to how unattractive and unwanted that sort of possessiveness really was. So, ladies and gentlemen, by the time of her death, you might think Caroline was well aware of the negative side of this absolutely controlling and possessive behaviour of the accused towards Caroline really was." b. There was also evidence given by a number of witnesses at the trial as follows: i. that the accused used to keep constant tabs on where Ms Byrne was going when he was not with her, and with whom she was meeting; ii. that he would sometimes follow her without her knowledge, and then come up to her and speak to whomever she was with; iii. that he would incessantly ring her to check where she was; iv. that he wanted her to give up work, contrary to her wishes; v. that whilst initially she found his attention quite endearing, after a while she was no longer so tolerant of it. vi. The evidence was that the accused himself admitted that he would ring her 4 to 5 times per day. vii. There was evidence that by the latter stages of their relationship, when the accused had become abusive to her, she no longer wished to be in an oppressive relationship. viii. There was evidence from the gym owner, Angelo Georgiou, to the effect that Ms Byrne had told him how intolerable the relationship had become and that she wanted out but was scared of his reaction. ix. There was evidence from Christine McVeigh and Glenda Williams of an occasion about a week prior to her death when the accused had viciously berated Ms Byrne at the gym. [the so-called gym fight] c. I believed that the Crown submission on this issue was based on evidence before the Court. [redacted] d. [redacted] e. [redacted]. It is incorrect to suggest that these submissions were speculative or not supported by the evidence. f. I did not make a submission that Ms Byrne had told the plaintiff that she wanted to terminate the relationship. The submission that I made was that from the evidence available the jury could infer that the relationship between the plaintiff and Ms Byrne was unravelling and that Ms Byrne must have intimated to the plaintiff that she "wanted out" of the relationship. That submission was also summarised by the Trial Judge in the same way. There was evidence which allowed such a submission to be made and I believed that it was entirely proper for me to refer the jury to that evidence and invite that conclusion to be drawn. [Redacted]. The criticism on this point is not based on the totality of the Crown closing address on this point or the Judge's summing-up, which accurately reflected the evidence in the trial. The simple fact is that there was evidence which supported this part of the Crown address. g. In my closing address, I extensively identified the evidence of the deterioration of this relationship and of Ms Byrne's wishes to terminate it. It began like this: "Now, ladies and gentlemen, that, of course, raises the question why would the accused kill the woman of his dreams whom he intended to marry? According to the accused, he and Caroline had an idyllic relationship at the time of her death. He told Mr Basquali that she was the woman of his dreams, and he repeated that in the Jubelin interview. He told his sister Michelle that they were both planning to marry. He told June Dally-Watkins that she was 160 per cent happy, but only when she was with him. And he told Dr Grech that he was the only one who could satisfy her physically and emotionally. But - but - then we come to a whole lot of other evidence which paints a very, very different light on their relationship. Of course, the first part of this evidence comes from Angelo Georgiou, who is the manager of the gym where the accused used to work and where, in 1995, both the accused and Caroline Byrne would occasionally come and work out. Now, ladies and gentlemen, two things I would like to point out to you about Angelo Georgiou before I remind you what his evidence was. Angelo Georgiou was a reluctant witness. He didn't want to get involved. He didn't want to speak to the police. It required numerous contacts with a journalist, Mr Wainwright, before he was convinced to go to the police. He did not want to get involved. There was no suggestion by Mr Terracini that there had been some blow-up between the accused and Mr Georgiou, that there had been some massive quarrel or any quarrel at all. In fact, Mr Georgiou was very favourably disposed towards the accused and let him use the gym. He had been a very good employee when he was working as a personal trainer. They had got along very well. In fact, Georgiou had stood up for the accused when other people were saying negative things about him. So bear that in mind when you are considering Mr Georgiou's evidence, because what Mr Georgiou says is this: "In February or March of 1995 Caroline came into the gym and they had a conversation." Mr Georgiou explained to you how he tried to maintain good relations with his customers by encouraging them to chat and just being friendly with them. Mr Georgiou, of course, was a very safe person to talk to. He had nothing to do with Caroline's life, other than being at the gym. Because what Caroline said was this, she reminded him that, about a year previously, she and the accused had split and she was seeing someone else, and he said that was the European fellow. Then, Caroline said this: "Things aren't going good with Gordon. Things aren't going well. I want him to get ahead, fulfil his potential, but I don't want him to associate with the type of people he's associated with. He's involved in a lot of get-rich-quick schemes. He's very possessive, loses his temper and snaps. I know he loves me, but he's like a possessive type of love, that's why he gets snappy. Sometimes he gets so angry, it's like he wants to kill me. You know over a year ago we split up and I was seeing someone else." She then went on: "She then went on, 'You know that we split up over a year ago? It's getting to be like that again.' I said, 'Communication is what it's all about: you give a little bit, he gives a little bit. Gordon will be okay. That's part of a relationship. They all have their ups and downs. Every marriage or relationship has problems. I have problems with my wife.' I took what she was saying to me as the general type of problems you have in a relationship. She said, 'Okay. Thanks Angelo.' I said, 'I don't like to see you like this, Caroline. If you ever want to talk to me any time, you'll be okay. Everything will be okay.' Caroline gave me a hug, and then she went into the change rooms and then upstairs. I remember when she left I said to her, 'Are you okay? All right?' She said, 'Yes, I'm fine. See you, Angelo'. " Now, that was in February/March 1995. The next conversation was in the period end of April to early May 1995. He said to her: "Is everything okay? Have things improved." Because he could see that she was not her normal self. He said: "She said, 'Angelo, things are not getting any better. He's under a lot of pressure and he's always under a lot of pressure. Sometimes I fear for my life with Gordon. I have to break this off and leave him. Gordon is very possessive and I can't break it off cleanly. He gets in a lot of jealous fits." And she finished with: "He gets really jealous and possessive." You said, "If you feel like that, you should try and break it off." She said, "Thanks, Angelo, thanks", and that's when you walked around the corner and gave her a hug and said words to the effect of, "If you need to break it off, you should". Now, ladies and gentlemen, there's nothing in any of the accused's interviews which provides any sort of explanation for why Caroline would have said those things to Angelo." [779] (Emphasis added.)
Despite the somewhat crude use of the vernacular Mr Tedeschi elected to use in describing the plaintiff and his relationship with Ms Byrne, including that he was a "control freak", [780] I do not regard that submission, or the related submission that the plaintiff was "possessive and controlling", [781] as unsupported by the evidence, even accepting that there was other evidence in the trial reflecting rather more favourably on the plaintiff's treatment of Ms Byrne as his girlfriend. I note in that regard the material referred to in par 203 of the plaintiff's submissions which I have read and considered.
The particular of malice pleaded in par 16.59 of the FASC is not made out.

[132]

The "gym fight"

Mr Tedeschi continued by addressing the jury on the so-called "gym fight" as further evidence of the deterioration of the relationship between the plaintiff and Ms Byrne: That, of course, is not the only evidence of the deterioration of their relationship. We then come to the argument at the gym that was witnessed by Christine McVeigh, and also the last tail-end of it witnessed by Glenda Williams at the gym, I think it was the other gym, the City Gym, on the Friday before Caroline's death. … Let me read to you what Christine McVeigh said about this. She said she had left the reception area, gone into the gymnasium proper. They then returned to the reception and, on her way back, she deviated out into the entry area. And that's where she heard sobbing. So she looked over and saw Caroline in the corner like this, and she demonstrated it: "Now, would you tell us exactly what you saw and what you heard? A. Well, originally, I wasn't taking a great deal of notice, but when I heard sobbing, I looked over and I saw Caroline in the corner like this (demonstrated). Q. Sorry, you're going to have to sit close to the microphone? A. Sorry. She was pulled back into a corner with her hands up and she was sobbing quite hysterically. Gordon was standing very close to her. I didn't take a great deal of notice of what was being said until I heard Gordon say something quite aggressively to her. Q. Now, would you tell us exactly what you heard him saying? A. "You're a fucking idiot, Caroline." Q. Now, how did he say that to her? What was the tone that he used? A. It was almost like reprimanding, in an aggressive manner, like attacking her for doing something stupid. Q. And would you tell us what you saw of them, apart from what you've already told us? What did Gordon appear to be doing? What did he look like? A. Angry, confrontational, very, very close to Caroline - almost too close for comfort. He seemed to be dominating the situation completely. Q. Was she in a corner? A. She was in a corner. Q. Was she able to get away from where she was? A. Not without pushing through the other two people that were with Gordon. Q. Now, are you sure that there were two other people with Gordon? A. I'm absolutely certain." [782]
The "gym fight" witnessed by Ms McVeigh, involving what was said by Mr Tedeschi to be the plaintiff aggressively confronting Ms Byrne before her death and publicly abusing her in a loud and aggressive way, was what was said by Mr Tedeschi in his closing address to be behaviour the plaintiff repeated the night before Ms Byrne was killed. That submission was based solely on Mr Doherty's evidence.
The plaintiff submitted that to rely on Mr Doherty's evidence for this purpose was only possible if Mr Tedeschi incorporated multiple and deliberate misstatements of the effect of Mr Doherty's evidence. The plaintiff submitted that the Court would also find Mr Tedeschi's evidence in these proceedings, where he justified the submission he advanced as fairly arising on the evidence of Mr Doherty, as so wholly untenable as to warrant it being rejected as untrue. A finding to that effect is said by the plaintiff to lead inexorably to a finding of prosecutorial misconduct, eloquent of malice.
In advancing the submission that what Mr Doherty witnessed was a confrontation between the plaintiff and Ms Byrne which extended over some hours (a confrontation which Mr Tedeschi submitted was ample evidence of the relationship having deteriorated to such an extent that they were loudly and publicly arguing) Mr Tedeschi drew the jury's attention to the evidence of two people, including Ms McVeigh, who had witnessed what he referred to in his closing submissions as "the most awful argument in the gym late at night" (on the Crown case, the Thursday or Friday before Ms Byrne's death) where, as he described it: Caroline was cowering in a corner sobbing uncontrollably, and the [plaintiff] was standing right in front of her in her personal space berating her. [783] (Emphasis added.)
Mr Tedeschi went on to say: [Ms McVeigh] couldn't hear the actual words that [the plaintiff] was using, but what she did hear [him say] was, "You're a fucking idiot Caroline." And Caroline was sobbing uncontrollably. [784] (Emphasis added.)
It is not suggested by the plaintiff that this submission was an overreach or overstatement of the effect of Ms McVeigh's evidence (an extract of which is set out above). What the plaintiff does submit (as defence counsel submitted at the plaintiff's trial) is that Ms McVeigh's evidence was necessarily compromised by extensive media coverage of the plaintiff's arrest in May 2006, her statement having been volunteered for the first time after that date. The plaintiff also submits that her evidence was contradicted by Mr Redding's evidence that he had not been to the gym since 1994. I do not regard those matters as relevant to the issue of malice. Neither do I regard the plaintiff's further submission that Kylie Watson, a close friend of Ms Byrne's, gave evidence that she saw Ms Byrne outside the June Dally-Watkins school on the Friday afternoon on 2 June 1995 and that aside from seeming to her "quite flat and fluey", she said "she couldn't get to the gym so she was feeling a bit down" as relevant to the issue of malice.
On the plaintiff's case, there is further significance attaching to the events of Friday 2 June 1995 by way of pager message, Ms Byrne left for the plaintiff at 5:37pm that day, which read: Hi Gordie, it's 5:30 pm, call me at home when you get a chance, love your sic chickie babe. [785]
That text message was not adduced as evidence in the Crown case. Mr Tedeschi accepted in his evidence that he would likely have had a printout of that message sent on pager service, together with other pager messages. He did not accept that the text was inconsistent with the Crown case theory that the relationship between Ms Byrne and the plaintiff was unravelling and that he did not tender it for that reason. Mr Tedeschi gave evidence that whilst he did not specifically recall the pager message, he accepted that one way of reading it was that Ms Byrne was not at the Gym but at home sick, which would in turn tend against her being at the gym at all that day. Mr Tedeschi's ultimate justification was not only was "the gym fight" some hours later on a Friday (namely at 8:30pm), but Ms McVeigh was not absolutely certain it was the Friday before she died. He said: I think initially in her evidence she said it was the Thursday. She expressed some doubt about exactly which day it was. So I don't see that this detracted from the essential accuracy of the evidence of Ms McVeigh. [786]
I do not regard the decision not to tender the pager message as evidence of misconduct, even if it was a decision made after deliberation (as to which I have some doubts). I am not persuaded the Crown was obliged to tender it. There was no suggested it was not disclosed.
In support of the submission that the relationship was in decline, Mr Tedeschi also referred in his closing submissions to the evidence of Ms Georgiou, emphasising the number of conversations Mr Georgiou had with Ms Byrne where she expressed grave concerns for how the plaintiff might react were she to have announced the end of the relationship. Mr Tedeschi also invited consideration to what he described as "the evidence of Caroline Byrne's many friends" [787] that: [I]nitially she had thought that [the plaintiff's], what could loosely be described as, overly possessive behaviour of constantly ringing her had worn thin and that she was beginning to find it irksome that he was constantly wanting to know where she was, constantly ringing her up, ringing her friends when he couldn't get hold of her to find out where she was, and if you consider the evidence that she was disgruntled with the situation of his employment with Mr Rivkin because she had some doubts about Mr Rivkin's intentions, she had some doubts about the whole group of people surrounding Mr Rivkin. So there was a considerable amount of evidence to justify the conclusion that Caroline Byrne - the relationship between Caroline Byrne and Gordon Wood had severely deteriorated, that she wanted out, and yet she was finding it very difficult to be open and honest about her intentions. [788]
The plaintiff's ultimate submission, as it relates to the evidence of Mr Georgiou and Ms McVeigh, coupled with the evidence of those who gave their insights into the nature of the relationship between the plaintiff and Ms Byrne's proximate to her death, was that it was incapable of establishing that Ms Byrne was in fact going to terminate the relationship. The plaintiff went on to submit: If there [was] no positive evidence as Mr Tedeschi accepts that Ms Byrne told the plaintiff that she wanted to leave him then there cannot be sufficient evidence to make the submission that she had intimated that she wanted to end the relationship. [789]
The plaintiff went further and submitted for that reason the second aspect of the Crown's case on motive was also entirely speculative and improper. I do not accept either submission. The fact that there might have been no direct evidence that Ms Byrne told the plaintiff she no longer wanted to be in a relationship with him is not inconsistent with her having intimated that she wanted to end the relationship, either to him or to others. I see nothing in the way the Crown put its case on the second aspect of motive that warrants it being described as "entirely speculative" [790] or that there was any impropriety in Mr Tedeschi advancing it.

[133]

Mr Georgiou's evidence

Although not advanced at this particular point in the developing Crown submission that the relationship between the plaintiff and Ms Byrne was rapidly and irretrievably deteriorating, and that Ms Byrne was in fear of the plaintiff's reaction to her unilateral decision to terminate the relationship were she to have announced it, the Crown also relied upon the evidence of Mr Georgiou (also set out in summary above) in which he recounted conversations with Ms Byrne in which she told him not only that the relationship with the plaintiff had deteriorated and she "wanted out", [791] but that she was so fearful of the plaintiff's reaction were she to announce it that at times she felt fearful for her life. The plaintiff identified what he contended were "significant issues with Mr Georgiou's evidence and his credibility" (again all matters in issue in the trial).
At pars 189 to 191 of his submissions, the plaintiff details the circumstances in which Mr Georgiou contributed to the ongoing investigation after the Sufficiency of Evidence Report had been provided to the DPP, referable to multiple citations in the court book. It would appear that the complaint is that Mr Georgiou's evidence was also "corrupted" having emerged nine and a half years after the events he described and involving (what the plaintiff contended were) conversations with Ms Byrne which were of limited reliability and probative value. It was also submitted that concerns about Mr Georgiou's credibility and reliability would have been known to Mr Tedeschi not only because of Mr Georgiou's statement, but because of a letter of assistance that had been provided by Det Insp Jacob after the plaintiff's trial. It is not clear to me what the plaintiff would invite the Court to conclude from the recitation of that material, save as to advance the submission that there was some unspecified "unfairness" in the evidence from Mr Georgiou being adduced at the plaintiff's trial. For my part, these were issues that were clearly ventilated at trial and, save for the complaint in par 16.51 of the FASC that "the defendant did not disclose to the plaintiff's lawyers the criminal history of Mr Georgiou's criminal history before or during the trial" (an allegation not developed in final submissions), there is no suggestion that reflects adversely against Mr Tedeschi as prosecutor.
Mr Georgiou's evidence, coupled with the argument at the gym, was ultimately relied upon by Mr Tedeschi to encourage the jury to accept that it was Ms Byrne and the plaintiff arguing outside Mr Doherty's window on the night before her death. In reasoning to that conclusion, Mr Tedeschi invited the jury to "work back" from Ms Byrne's body being found at the bottom of the cliff; to the scream heard by Mr Doherty and the fishermen; to the argument that preceded the scream; and then to the argument Mr Doherty witnessed involving three people. In inviting the jury to find as a fact that it was Ms Byrne who was involved in that public display, and the plaintiff was the man who was aggressively arguing with her, Mr Tedeschi also invited the jury to conclude that she was not drunk, as Mr Doherty had thought, but distressed and overwhelmed by the plaintiff's aggression.
The plaintiff does not advance the submission that was an impermissible line of reasoning per se (albeit it was the plaintiff's case at trial that it was not compelling for a variety of reasons). What the plaintiff does complain about is the way in which Mr Tedeschi sought to align the argument at the gym (where Ms Byrne was sobbing uncontrollably with her head in her hands) with what Mr Doherty saw and heard from his window, by attributing to Mr Doherty that he saw the girl "sobbing" when this was not his evidence and not an inference available to be drawn from his evidence.

[134]

Mr Doherty's evidence and the "sobbing girl"

In referring to Mr Doherty's evidence, Mr Tedeschi submitted to the jury as follows: It was very cold. Mr Doherty gave evidence that the same three voices that he heard arguing for an hour before the scream he had previously heard at about 8-ish. At about 8-ish, he sees a girl sitting in the gutter underneath the light pole with her head in her hands, sobbing, slurring her words, arguing back to a man, who was initially under the awning so Mr Doherty couldn't see him. The description which he gives is very, very similar to the description of what Caroline was doing when the accused cornered her and berated her and swore at her in the gym, as witnessed by Christine McVeigh. There was a second man who was standing further up outside the pizza place under an awning taking no part in the argument. Let me read to you the description that Mr Doherty gives about the man who eventually comes out from under the awning and crosses the street, so he sees him just from the back. He says that: "He was a tall man, probably around 6 foot tall ... looked like." He said that Gordon Wood, as seen on the "Witness" programme, had a similar stature to the man he had seen. He said: "His height was similar, his build was similar, his hair was similar … or a scarf on." Fairlie Kingston gave evidence that the description that she got of the girl from Mr Doherty was that he saw a girl with long blonde hair dressed casually. My learned friend, Mr Terracini, cross-examined her about the fact that that was not in her statement, but she was adamant that she remembered that that's what John Doherty had told her about the woman who had been sitting in the gutter. This woman was moaning and slurring her words and arguing back in a combative style. Mr Doherty thought that she was either drunk or affected by drugs. Of course, he would, because he had seen numerous people in that area who were drunk or affected by drugs having arguments like that. That doesn't mean that that woman was actually drugged or drunk. We submit to you that Caroline Byrne by that stage had been subjected to the most concerted attempt by the accused to convince her to stay in her relationship; they were arguing and arguing and arguing and continued to argue until the time of her death. You might think that she had been so harangued in such a vociferous way by the accused that she was just totally and utterly distressed, not wanting to go, not wanting to be there, wanting to be out of the relationship, not knowing how to cleanly end it, as she told Angelo Georgiou, and that is why she was slurring her words and sobbing. [792] (Emphasis added.)
That submission was endorsed in Question 21 of "the 50 Questions" which Mr Tedeschi impermissibly invited the jury to consider in advance of hearing defence counsel's closing address. Question 21 was in the following terms: Would Caroline have voluntarily gone over the fence onto the rock at the cliff line if she was having a severe argument with two men during which she had been sobbing? (Emphasis added.)
The fact that Mr Tedeschi crafted and read "the 50 Questions" (without intervention by the trial judge) was also the subject of complaint under the sixth ground of appeal upheld by the Court of Criminal Appeal. His use of "the 50 Questions" is, as I have noted, a further particular of what the plaintiff submitted in these proceedings is evidence of Mr Tedeschi's malice. It will need to be separately considered.
Mr Tedeschi was cross-examined and, in my view, to considerable effect in the proceedings, as to how he could justify attributing to Mr Doherty hearing the girl "sobbing" when there was no evidence at all to support that submission. After reminding Mr Tedeschi of Mr Doherty's evidence at trial (the evidence I have summarised above), Mr McClintock asked the following questions: Q. ... Now, nowhere in that passage does Mr Doherty suggest that the woman he saw, whoever it was, was sobbing or crying, do he? A. He says she was moaning and slurring her words. Q. "Moaning and slurring her words" is the sort of thing that drunk people do, isn't it? A. Yes, that's correct. Q. It's quite a distinct action from sobbing or crying, isn't it? A. I think that one could easily be mistaken for another in a situation like Mr Doherty was in, where he had seen numerous drunk people in the vicinity because there was a pub there and he, when he saw these people arguing and heard the girl moaning, and he couldn't hear what she was saying or what he was saying, he assumed that she was just a drunk person. But the view that I took was that the description which he gave of her moaning and slurring her words and him shouting at her in an aggressive fashion was utterly consistent with the couple having an argument and, and the woman being berated by the man. Q. Would you answer my question? A. I think I did. Q. My question was, the actions of moaning and slurring are quite distinct from the actions of sobbing and crying, aren't they? A. I, I don't think they're quite distinct. I think they could be mistaken for each other. Q. I see. Let's go to your address, 11480. You see lines 36 - perhaps you could just read line 36 to line 44 [the extract at [928] above] to yourself. A. Yes. Yes. Q. You've injected into the description of what Mr Doherty said the word "sobbing", haven't you? A. Yes. Instead of "moaning", I've said "sobbing". Q. Yes, the word "sobbing" being a word he never used. That's correct, isn't it? A. I'd have to check his, the totality of his evidence but if, if you tell me it wasn't used, I accept that. Q. It was not used in his evidence at the trial; you can take it to be the case. Now, you see-- A. I also said "arguing back to the man". Q. I accept that. Then it goes on "who was initially under the awning" so Mr Doherty couldn't see him. A. Yes. Q. You see, Ms McVeigh had used the word "sobbing", hadn't she? A. She had. Q. You, I want to suggest, quite clearly misstated what Mr Doherty's evidence actually was in the passage I've just taken you to, when you used the word "sobbing". A. I disagree. I, I used the term "sobbing" instead of "moaning". I, I don't agree that that was misleading. Q. I want to suggest to you it was a calculated decision that you made to put the word "sobbing" in there, so that you could make a false comparison with what had occurred on the Friday night supposedly with Ms McVeigh. Do you agree with me or not? A. I don't now recall exactly what was in my mind when I made that submission, but thinking back, there's no way that I would have in any way been attempting to mislead the Court. And if, if you - I withdraw that. Q. You see, you had a very particular purpose, I want to suggest, in doing that, in making the connection between the two arguments. The first was to plant in the jury's mind that it might've been Mr Redding who was the second man seen by Doherty. That is correct, isn't it? A. In order to answer that question, that requires quite a lengthy explanation. HER HONOUR Q. The question is whether that was in any way your intention; that is, to lead to a suggestion to the jury that the second man was Redding. That is, the comparison between the two encounters - one viewed by Mr Doherty and the other viewed by Ms McVeigh. A. My intention was to compare the two events to make the submission that I did, which was the, the, the description which Mr Doherty gave was very, very similar to the description of what Caroline was doing when the accused had cornered her and berated her in the gym, as witnessed by Christine McVeigh. Now, it's true that the evidence of what happened in the gym was that Mr Redding was there. There was no identification evidence of the second man who was with the man who was berating Caroline, as observed by Mr Doherty. [793] (Emphasis added.)
Mr McClintock then took Mr Tedeschi to the second occasion in his closing submissions when he had used the word "sobbing" in describing what Mr Doherty saw of the girl, as to which Mr Tedeschi again advanced the following justification: What I was attempting to do was to compare what had happened in the gym a few days earlier with the events that were witnessed by Mr Doherty; to draw the jury's attention to the remarkable similarities, those similarities being that this man which, if the jury accepted was Mr Wood, was berating Caroline in a very similar manner; that there was another man with him at the time that she was in a cowering position, seated on the floor with her hands around her head; that she was moaning or sobbing in a way which is very similar to what was, what was happening - what had happened at the gym; so that it was very similar to what had, what had been observed by Ms McVeigh in the gym. [794] (Emphasis added.)
Finally, it was put to Mr Tedeschi that, given that Mr Doherty could not decipher what was being said in the argument, there was nothing in his evidence to support the proposition that it was allied with Mr Georgio's evidence that Ms Byrne told him she wanted "out of the relationship" but did not know how to do it. The cross-examination continued: Q. In so far as what you're saying there relates to what was said during that argument, there was no basis for that submission, was there? A. There was - there were no words that Mr Doherty had heard in the argument. It was an inference that I felt was available to the jury based upon the totality of the evidence that I had led during a three month trial about the deterioration of their relationship; about her fears; about the previous argument that they'd had at the gym - putting all of that together, I felt it was a perfectly legitimate submission to make to the jury. Q. Just look at the words, "She was just totally and utterly distressed." A. I, I think that's an accurate description of the way that she appeared to be to Mr Doherty. Q. She appeared to Mr Doherty to be drunk, didn't she? A. She was moaning, she was slurring her words, she was sitting in the gutter whilst this man shouted at her with her hands around her head. I think that the description that she was utterly distressed is an accurate one. Q. But Mr Doherty was saying she was drunk. And he clearly based that on moaning, sitting in the gutter, hand on her head, and so on. A. He assumed she was drunk. Q. I want to suggest that you invented the suggestion that she was totally and utterly distressed to overcome the problem that drunkenness, if it was the case, posed for your case. First, you're aware, aren't you, that every witness who knew Caroline Byrne had said, "If this person was drunk, it could not be Caroline Byrne". You knew that, didn't you? A. It was undoubtedly Caroline Byrne, and the-- Q. Please, I'm asking-- A. --my submission to the jury was based-- HER HONOUR Q. Mr Tedeschi, just a moment please. Whether it was or was not Caroline Byrne cannot be categorically stated by you or by anybody else for that matter. A. If your Honour pleases. I had advanced arguments to the jury as to why they would conclude that this was Caroline Byrne. And Caroline Byrne didn't have any alcohol in her blood when her - after her body was found. So she couldn't have been drunk, and the jury could legitimately conclude that she was utterly distressed rather than being drunk, and that Mr Doherty had mistakenly assumed that she was drunk because of the large number of people that he'd seen in that area over the time that he lived there who had come from the pub and were clearly drunk. [795]
In his February statement Mr Tedeschi appealed to the governing Bar Rules and Director's Guidelines in maintaining the position that he was entitled to advance the submissions the subject of detailed challenge above.
In short, the plaintiff submitted that Mr Tedeschi's closing submissions as they related to the "sobbing girl" that Mr Doherty saw, being Ms Byrne, and the context in which those submissions were put, were without evidential foundation, such that his ultimate submission that the jury could draw a link between Ms McVeigh's evidence and Mr Doherty's evidence to conclude that it was the plaintiff and Ms Byrne who were engaged in both incidents was evidence of malice. The defendant did not address this aspect of the plaintiff's submissions in its closing submissions.
Mr Tedeschi's evidence that he was satisfied that there was a sufficient connection between Ms Byrne "sobbing" in the gym fight (with her head in her hands) when being berated by the plaintiff, and the girl on Military Road "moaning" (with her head in her hands) whilst being berated by a man, so as to allow for the submission that the girl on Military Road was Ms Byrne and the man shouting at her was the plaintiff involved, in my view, an extremely strained rendering of the evidence. While I seriously question the propriety of a Crown Prosecutor going to the lengths Mr Tedeschi went to in advancing that submission, in particular by not doing so transparently by reminding the jury that Mr Doherty did not say the girl was "sobbing" but that they might find "moaning and "sobbing" to be the same display of distress, the justification he advanced in his evidence. I am not persuaded the approach he took so far exceeded the legitimate reach of his duties as a prosecutor that I can arrive at the firm conclusion that it amounted to prosecutorial misconduct.
A further example of what the plaintiff submitted was a submission advanced by Mr Tedeschi without a sufficient evidential basis concerned the gym fight. In reference to the evidence of Ms McVeigh, who identified Mr Redding with the plaintiff at the time of his argument with Ms Byrne, Mr Tedeschi advanced the following submission: Now, I ask rhetorically, ladies and gentlemen: what had Caroline done or threatened to do that warranted the accused calling her a "fucking idiot"? Why on earth would he be having a row like that with the woman of his dreams, who was 160 per cent happy when she was with him in the entry area of the gym? And why on earth would he be having such an argument with Caroline, with Gary Redding standing shoulder to shoulder with him? Ladies and gentlemen, we submit that this argument must have been something very serious, and it must have had something to do with the accused's employment with Rene Rivkin. -That's why Gary Redding was standing next to him. I mean, would you have a rip-roaring row with your spouse or partner with one of your fellow employees from your work standing next to you? Of course you wouldn't. Neither would the accused if it was something purely personal. It must have had something to do with Rene Rivkin for Gary Redding to be there. [796] (Emphasis added.)
The plaintiff submitted that this was a further improper attempt to link Mr Rivkin to Ms Byrne's death. The plaintiff submitted that Mr Tedeschi's submission amounted to "speculation verging on fabrication".

[135]

Mr Tedeschi's evidence in justification of the Crown case on motive

In cross-examination, Mr Tedeschi defended his right to advance that submission, consistent with the explanation he gave in his second February statement by denying that the submission was speculative and unsupported by the available evidence. He again invited consideration to what he referred to as the totality of submissions on motive and the evidence in the proceedings that he considered grounded that submission. In his February statement he extracted that part of his closing submission extracted above. He went on to advance the basis for his rationale for advancing that submission as follows: c. The evidence demonstrated that the argument between the plaintiff and Caroline Byrne at the gym a week prior to her death was heated and had left Ms Byrne sobbing. The argument occurred in the presence of Mr Redding, who was a Rivkin employee. There was no suggestion in the evidence that the plaintiff had any connection with Mr Redding other than in connection with his employment by Rene Rivkin. Indeed, the evidence was that the plaintiff and Mr Redding disliked each other quite intensely. It should be noted that Senior Counsel for the plaintiff, during his closing submissions, submitted to the jury "Obviously, we now know that Redding worked for Rivkin; that he knew the accused; that he didn't particularly get on with the accused ...". The evidence was that in the argument which occurred in the presence of Mr Redding, the accused was berating Ms Byrne and saying "You are a fucking idiot, Caroline". d. Having regard to that evidence, I believed that I was entitled to invite the jury to conclude, by virtue of the presence of Mr Redding, who was an important identity in Mr Rivkin's circle, that the argument must have had something to do with Mr Rivkin. [797] (Footnotes omitted.)
While I do not find Mr Tedeschi's reasoning persuasive, leading me to conclude consistently with the finding of the Court of Criminal Appeal, that Mr Tedeschi's submission that the argument "must have been something to do with [the plaintiff's] employment with Mr Rivkin" was "entirely speculative", whether I regard the explanation that Mr Tedeschi offered as to why he considered he was justified in advancing the submission in his evidence as deliberately untrue or so untenable that I should give it no weight is a different question. I will return to consider it shortly.
After advancing the submission that the jury would find that the argument at the gym "must have been something very serious, and it must have had something to do with the accused's employment with Rene Rivkin", [798] Mr Tedeschi then led into a submission of the significance of Mr Rivkin's proprietorship of Offset Alpine Ltd, which included the following submissions in summary: The conclusion is this: the accused had insider trading information. That's the only way you can categorise it. He knew those shares were going to go up in value because there was going to be an insurance payout and he was telling people that it was a sure guaranteed deal that there were government people involved and that these people know what's going to happen in the future. If ever that was insider trading information, that was this situation. He had confidential information about powerful people, including people in government. He had told people things, including Caroline and Tony and Angelo, that you might think would have horrified Rene Rivkin if he knew. So Rene Rivkin had every reason to be paranoid about Caroline and Tony. [799]
Mr Tedeschi then made the following submission to the jury: [W]e submit to you that Rene Rivkin was paranoid in the first place about Tony particularly, but that then he became absolutely-totally paranoid about what information Caroline had about him and his business affairs and his personal affairs … so you can imagine the stress that this accused was under. [800]
Finally, Mr Tedeschi made the following submission to the jury: From his point of view, he stood to lose everything: love, employment, money, future fortune, self-esteem, the facade of prestige that he had built up with others. His whole life was about to unravel. We would submit to you that she must have intimated to him that she wanted out; and it must have been obvious to him that this time it was going to be forever. … [W]hen he failed to convince her to stay in their relationship, he killed Caroline rather than losing her and losing everything else in his life. [801]
Each of these submissions were then effectively repeated in Questions 4 to 9 of the "50 Questions" Mr Tedeschi posed for the jury. 4: What was the argument in the gym about that was witnessed by Christine McVeigh on the Friday before Caroline's death and why was Gary Redding standing shoulder to shoulder with the accused? 5: Was the accused expecting massive bonuses from Rene Rivkin; and, if so, when and after what deal had been done? 6: Why was it that the accused['s] employment with Rene Rivkin was under such a threat in about March 1995, and what was the plan that he devised to get around this? 7: If the accused had been advising people to buy Offset Alpine Printing Company shares at a time when he knew that the price was going to massively increase, was this insider trading information? If so, had he disclosed such insider trading information to Caroline and Tony Byrne and, indeed, to others? 8: If the ASC inquiry was important enough to cause Rene Rivkin to go on a three-week overseas trip to speak to bankers, was the accused under any pressure at being called before the inquiry on Tuesday, 6 June? 9: Was Caroline concerned about Rene Rivkin's intentions towards the accused? And did those concerns heighten during the overseas trip? [802]

[136]

The plaintiff had "insider trading information"

The plaintiff submitted that there was no evidentiary basis to put the submission that the plaintiff had "insider trading information", a proposition which the plaintiff submitted must have been intended by Mr Tedeschi to relate to the notorious and serious offence of insider trading comprehended by s 1002G of the Corporations Act. That submission was endorsed in Question 7 of the "50 Questions" as extracted above.
In his evidence Mr Tedeschi sought to defend both his submissions to the jury referable to "insider trading information" and its inclusion in Questions 4 to 9 of the "50 Questions" on the basis that what the plaintiff had was "inside information" or "insider trading information", since there was evidence that he was telling people that the shares in Offset Alpine were going to go up in value and they should buy them. Mr Tedeschi claimed that he was not alleging that the plaintiff was improperly trading in that information, or that the information was not generally available.
The plaintiff's detailed submissions to the effect that the Crown had no trading records to show when people associated with the plaintiff purchased shares, or any announcements from the Australian Securities Commission to show the company had either released or not released information at any time relevant to the acquisition of shares is plainly correct. The question is whether I am satisfied Mr Tedeschi intended by his submission to prejudice the jury in an improper way by alleging collateral criminal conduct on the part of the plaintiff. For my part, I do not read the submission that way. That, however, is not the end of the matter since Mr Tedeschi continued in his closing submissions to suggest that Ms Byrne had information about Mr Rivkin that would concern him in some unidentified way. In circumstances where I am satisfied there was no evidence that Ms Byrne had any information, confidential or otherwise, such as might have supported the submission that the plaintiff was motivated to kill her to ensure that information did not become public, the submission should not have been advanced.
As the plaintiff submitted, it was inherent in Mr Tedeschi's submissions on motive, and what was said to be the relationship between Mr Rivkin, the plaintiff and Ms Byrne upon which the Crown case on motive was based, that the plaintiff was compelled to kill Ms Byrne to both protect Mr Rivkin and to secure his relationship with Mr Rivkin for the perceived status and financial security it afforded him. The plaintiff's ultimate submission is that the evidence available to Mr Tedeschi at the commencement of proceedings and throughout the maintenance of proceedings to verdict could never sustain that proposition. The plaintiff submitted that, on a proper interrogation of the available evidence and the inferences that might legitimately be drawn from that evidence, the Court would conclude that Mr Tedeschi must have realised that his attribution of motive was unsustainable and that because he knew the Crown case was seriously weakened without evidence of motive, he created a fiction to supply one, including by the exploitation of public rumour and innuendo. The plaintiff submitted that in taking that approach Mr Tedeschi acted maliciously and contrary to his obligations as a prosecutor.
I have already found that the allied and interrelated secondary motive that the relationship between the plaintiff and Ms Byrne had progressively deteriorated to the extent that, although she did not make it known in the days immediately preceding her death, she had in fact determined to terminate the relationship did have some evidential support (albeit other evidence was available to contradict it). However, in the way the Crown advanced the issue of motive, the two motives were necessarily allied. Again, Mr Tedeschi in his comprehensive answer to the case that he knew would be mounted against him by the plaintiff in these proceedings (namely, that the Crown was without evidence of motive sufficient to support a prosecution for murder and that his mounting of such a case evidenced malice), refers at length to the evidence, and the legitimate inferences which he contends were available to be drawn from the evidence, and what he believed then and continues to believe now was his entitlement to put the submission on motive in his closing address.
The question is whether I accept that Mr Tedeschi had an honest (but wholly mistaken) belief in his entitlement to advance the Crown case on motive, consistent with his prosecutorial obligations, and if I am satisfied that he did have that belief at the time of trial (that is, that I accept he gave truthful evidence in asserting that belief), whether that is inconsistent with a finding of malice. The related question is whether, even were I to accept that he held that genuine belief, if I am of the view that it was an unreasonable or untenable belief, the way may be cleared to finding malice proved.

[137]

The significance of Exhibit DJ (formerly Figure 17 in the second Cross report)

It was accepted in these proceedings that Ex DJ at the plaintiff's trial was an enlargement of a section of an aerial photograph of the Gap, taken on an unspecified date but no earlier than 28 May 2003. That was established as a fact for the first time in the plaintiff's conviction appeal. At the plaintiff's trial, it was exhibited as a photograph taken in about 1996, being both tendered and admitted into evidence on that basis and captioned in that way when distributed to the jury.
It was the plaintiff's case on appeal - a position maintained in these proceedings - that Ex DJ was an exhibit of crucial significance to the Crown case given the Crown's reliance on the evidence of A/Prof Cross as to the availability of a 4-metre run-up from the northern ledge in his calculation of the capacity of a person to "spear throw" Ms Byrne to Hole A, and the experts who gave consideration to A/Prof Cross's calculations and opinions were also invited to take into account a run-up of that length as part of their assessment of the validity of A/Prof Cross's analysis and conclusions. It was A/Prof Cross's evidence at trial (as to which the other experts offered their comments) that with a 4-metre run-up, it would only have been possible for Ms Byrne to have jumped from the northern ledge and landed in Hole A if she were well above average athletic ability, possibly a high school champion, but with a 5-metre run-up the top 25 per cent of females of average athletic ability could jump the distance.
In these proceedings the defendant sought to counter the plaintiff's submission as to the significance of the 4-metre run-up, inter alia, on the basis that the Crown at trial was entitled, under a ruling from the trial judge, to also invite A/Prof Cross's consideration to Hole B as the landing place as an alternative to Hole A, a position which was necessarily associated with a different launch point on the cliff top (being the southern ledge) as to which Ex DJ was irrelevant. The defendant also relied upon A/Prof Cross's evidence in these proceedings that he did not regard the 4-metre run-up on the northern ledge as crucial because he had measured launch speed with both a 4-metre run-up and a 5-metre run-up.
The photograph which became Ex DJ was first referred to in A/Prof Cross's second report in June 2004, where it was annexed as Figure 17. It was produced by him cropping an aerial photograph of the Gap. The aerial photograph was included in the report as Figure 4. Figure 17 was captioned by A/Prof Cross as a photograph taken in "about 1996". In the caption, he drew attention to what he described as "bush growing up against the safety fence limiting the run-up distance across the ledge to 4 metres". (The ledge there referred to was the northern ledge, being that section of the cliff top A/Prof Cross appointed as the launch site associated with Hole A.) A/Prof Cross attributed that information to what he said he had been told by Det Sgt Quigg, presumably when the larger aerial photograph was supplied to him in preparation for his use in the second report.
At the time of giving his evidence at trial A/Prof Cross knew the photograph was not taken in 1996 but in 2003. He gave evidence on the appeal that he came to learn of that state of affairs in September 2006. He did not give that evidence in the trial.
At trial Mr Tedeschi asked the following questions of A/Prof Cross concerning the photograph (Ex G) [803] : Q. Did you ascertain, though, from photographs that you were able to obtain, that in 1995, and even in 1996, there was some vegetation that was up near the fence? A. Sort of. Sort of, yes. I would need to qualify that. Q. If you would? A. The photographs that I obtained were dated not in 1995; the earliest photos I've seen were 1999, I think. Nevertheless, the bush - the bush was cut back from the fence during repairs just before I'd first sighted that area, but, when I did first sight that area, it was clear to me that bush had just be cut back because there was still a lot of stubble growing up through the rock underneath extending out one metre from the fence. Q. I would ask you to assume that evidence will be given that in June of 1995 that the vegetation that had been cut just before you got there was still there? A. Yes. [804]
Mr Tedeschi accepted in his evidence in these proceedings that he had Ex DJ in his mind when he addressed A/Prof Cross's attention to the photograph in this aspect of his evidence and that it was Ex DJ he was intending to tender. Once admitted, Ex DJ was described as "some photographs of the northern rock platform, taken in about 1996, showing the bush growing against the safety fence". [805] It was distributed to the jury bearing this caption.
A/Prof Cross confirmed in his evidence in these proceedings that he knew that the jury was being provided with a wrongly dated photograph of the environs of the northern ledge. A/Prof Cross claimed that he said nothing at that time because he was told by the Crown Prosecutor at the time of tender there would be evidence that the photograph did in fact represent the situation in 1995 or 1996. The defendant submitted that is borne out by A/Prof Cross's further evidence in these proceedings that when he was told in 2006 that the photograph annexed as Figure 17 to his report was wrongly captioned, he regarded it as significant that the wrong captioning be corrected and new photographic evidence be obtained to ensure the objective facts upon which he based his conclusions about a 4-metre run-up were accurate, particularly if it became clear that the available run-up exceeded 4 metres.
There are a number of issues, however, that arise from the fact that the photograph was admitted into evidence with the wrong date affixed to the photograph by its caption, and that at the point of tender Mr Tedeschi made express reference to the fact that the photograph was taken in about 1996.
In these proceedings a deal of continuing confusion persists as to the precise circumstances in which the photograph was first of all wrongly captioned and then, when that error surfaced, what was done by A/Prof Cross and the investigators who knew of the error to deal with the question of how the northern ledge actually presented in June 1995 and how that information should be assembled for the purposes of the trial.
The defendant submitted, and I accept, that A/Prof Cross's evidence and the evidence of various police officers is difficult to disentangle many years after the event as they each sought to reconstruct the course of events relating to the provenance of the photograph (Ex DJ) and what was done, and when, and by whom, to obtain other photographic evidence of the condition of the cliff top on the northern ledge or oral evidence from officers of the Parks and Wildlife Service who have responsibility to maintain the bushes on the cliff edge, and the condition of the environs at the Gap, more generally. The defendant also accepted that there is a clear conflict between the evidence of A/Prof Cross and Det Sgt Quigg in these proceedings which does not admit of ready resolution. A/Prof Cross gave evidence that Det Sgt Quigg told him in about September 2006 that the date on Figure 17 was wrong, a proposition Det Sgt Quigg denied, asserting that were he to have learnt in 2006 that the date on the photograph was wrong, he would have alerted Det Insp Jacob immediately to that fact, well in advance of the trial.
It appears that the plaintiff accepts that A/Prof Cross's conduct with respect to the photograph does not have any relevant bearing on whether he is a prosecutor for the purposes of the tort, even were I to reject his evidence and prefer the evidence of Det Sgt Quigg on that issue. Of course, were he to have been attributed the status of prosecutor, and were I to find that he facilitated the admission into evidence at the plaintiff's trial of a photograph he knew was not just misleading but completely wrong, that would be powerful evidence of his mala fides supporting a finding of malice, given at least the prima facie significance of the photograph in the Crown case for the reasons discussed.
The high water mark of the plaintiff's submission that A/Prof Cross knew at some time prior to Mr Tedeschi's advice to Mr Cowdery in February 2006 that the prosecution should be initiated, that the photograph (then Figure 17) was wrongly captioned, and with that knowledge he deliberately sought to mislead Det Insp Jacob and Mr Tedeschi as to the extent of the available run-up on the northern ledge to exclude the possibility of Ms Byrne running five metres and diving to her death, is that I would reject A/Prof Cross's evidence that he was misled by Det Sgt Quigg into believing the photograph was an accurate representation of the presentation was a lie.
The defendant submitted that that is not a conclusion the Court could reasonably make. The defendant submitted that it is clear beyond doubt that A/Prof Cross was mistaken about the reliability of the photographic evidence and that, as a result, he made a series of incorrect assumptions as to what that evidence was capable of showing as to the actual presentation of vegetation on the ledge at the relevant date, but, the defendant submitted, to attribute to him a determination to lie about it strains credulity.
In the plaintiff's final submissions he also sought to make the case that, irrespective of A/Prof Cross's confusion as to what was being said about the photograph at the point of tender (a benign explanation for his failure to make it clear in his evidence at trial that the photograph was wrongly captioned), Mr Tedeschi deliberately, that is, knowingly and consciously, tendered Ex DJ through A/Prof Cross with the full knowledge that he had no evidence that the photograph was taken "in about 1996", having been told by A/Prof Cross in his evidence at the point of tender that the earliest photographs he had were taken in 1999. The proposition advanced by the plaintiff is that Mr Tedeschi's conduct in tendering the photograph uncorrected, or at the very least not seeking clarification that the photograph was correctly dated before he tendered it, was a serious breach of his prosecutorial duties and further evidence of malice.
The plaintiff submitted that in his supervisory role as senior Crown counsel, Mr Tedeschi also failed (deliberately so, it must be assumed) to permit Mr McKay to show Mr Bird Ex DJ with a reference to the photograph being taken in 1996, because he knew that that photograph was wrongly dated, undermining any probity in Mr Bird's evidence as to other upgrading work on the fence.
For the plaintiff to make good that aspect of his case, I would need to be persuaded that the evidence was deliberately structured by Mr Tedeschi to advance the prosecution case as to the availability of the 4-metre run-up and the related impact on launch speed. I am not persuaded the plaintiff has made good that case.
Mr Tedeschi did tender the photograph captioned as taken in "about 1996" despite accepting that he believed that A/Prof Cross's evidence was that the photograph had been taken in 1999. Mr Tedeschi claimed that he thought the reason why he asked A/Prof Cross to assume that there would be contrary evidence was because he thought that A/Prof Cross might be wrong about the date of the photograph. Mr Tedeschi gave an explanation that he thought that the source of that evidence was Mr Bird and the police officer who prepared the photogrammetry plan, Det Streatfield. There are only two inferences available; either Mr Tedeschi did not have that police officer or Mr Bird in mind when he led the evidence from A/Prof Cross or he did have that belief but did not lead evidence from him when he discovered the photograph was not taken in around 1996. I am unable to resolve that issue one way or the other.
It is no part of the plaintiff's case that there was some arcane conspiracy on the part of A/Prof Cross, Mr Tedeschi and the police to conceal the manner in which the photograph came to be incorrectly captioned and then later to conceal the knowledge that various people had of that matter. In the result, I am satisfied that the incorrect caption on Ex DJ came to be applied to the photograph erroneously but innocently, and that by reason of inadvertence, particularly on the part of A/Prof Cross who ought to have ensured Mr Tedeschi was aware that the photograph was incorrectly captioned, his knowledge that the photograph was incorrectly captioned was neither clearly communicated to police and not communicated to Mr Tedeschi at all. That being the case, the particulars of malice referable to (k) and (l) above are not established.

[138]

The carpark issue

One aspect of the plaintiff's account to police which Mr Tedeschi submitted supported the Crown case that he was at Watsons Bay at 11:30pm on 7 June 1995 when (on the Crown case) Ms Byrne descended from the cliffs to her death, was his assertion that he walked nine city blocks to collect the red Ford utility from The Sanctuary carpark, rather than access one of Mr Rivkin's vehicles in one of two carparks closer to where he lived - either the Kings Cross carpark, where the Suzuki Vitara was customarily parked, or the ABC carpark.
The assumption underpinning that analysis was that a large number of Mr Rivkin's vehicles were stored at both carparks, and if the plaintiff were genuinely intent on searching for Ms Byrne in a state of high anxiety and concern for her welfare, he had access to any number of them, having keys to all of them.
In his opening submissions, Mr Tedeschi submitted that the plaintiff did not take any of the available vehicles because he did not want to leave an electronic record of when he had left his apartment, ostensibly to search for Ms Byrne, both carparks having an electronic security system which would have left an electronic trace of his movements. Mr Tedeschi then alerted the jury to the fact that they would hear evidence from Mr Freris who was the only person in Mr Rivkin's employ who used the red utility and who would tell the jury he had no explanation for why the plaintiff would have gone to the Sanctuary building in Crown Street to get the red Ford utility when other vehicles were available to him.
Mr Tedeschi went on to say that the jury could also expect to hear evidence from an attendant at the Kings Cross carpark that the plaintiff spoke to him on the morning of 8 June 1995, asking for a printout showing the movements of Ms Byrne's white Suzuki to provide to the Coroner. It was the Crown case that was a lie. The coronial inquiry had not been initiated at that time, and no request had been made from the Coroner's Court or anyone else for that document. There was evidence that the document was provided to the plaintiff at his request but he has never produced it. As at the time of Strike Force Irondale that information was no longer retrievable from the business records of the carpark. The electronic information which would have shown Ms Byrne's movements on 7 June 1995 referable to the movement of the Suzuki Vitara was therefore not available to investigators. It is the Crown case that the plaintiff wanted access to the records in order to create "a story" about Ms Byrne's movements, coincident with the recorded movements of her vehicle, to enable him to fabricate an account that she had committed suicide.
To illustrate the fact that, on the Crown case, the plaintiff walked a considerable distance to obtain access to a vehicle to go in search of Ms Byrne, an exhibit was prepared which designated the plaintiff's apartment relative to the Kings Cross carpark, the ABC carpark, and the carpark under The Sanctuary where the red utility was accessed by coloured markers.
When giving his evidence, Mr Freris had his attention directed, via that exhibit, to the Kings Cross carpark. He gave evidence that in June 1995 there were six or eight sports cars from Mr Rivkin's collection that the plaintiff used regularly, including the Bentley and the Rolls Royce, and less used collectible vehicles. Mr Freris was then taken by Mr Tedeschi to the carpark marked as the ABC Carpark where he said there were probably another ten collectable or expensive everyday vehicles parked.
In these proceedings, the plaintiff complains that within the brief of evidence there was a statement from Mr Macmillan dated 26 June 1997, prepared in his capacity as the proprietor of both the ABC and Kings Cross carparks, in which he stated, unequivocally, that no motor vehicles belonging to Mr Rivkin were housed in the Kings Cross carpark in June 1995, and that, knowing that to be the case, Mr Tedeschi deliberately did not lead that evidence from him. The plaintiff submitted that Mr Tedeschi made a tactical decision not to adduce that evidence, a further example of the impermissible approach he took to his prosecutorial duties as the Crown Prosecutor which evidences his malice.
In closing submissions, Mr Tedeschi in effect repeated what he had opened on to the jury by posing a number of rhetorical questions, including: So, six to eight spots for cars that were regularly driven. Why didn't he use one of the cars in that car park if he was really in such a panic? Why didn't he go to the ABC Car Park where there were 10 vehicles, according to Mr Freris, 10 vehicles in 1995, that included collectibles and everyday vehicles. No, he chose to go past that car park to The Sanctuary building which he had access to by key and he chose to use the one and only vehicle that was kept at The Sanctuary building that was a Rene Rivkin vehicle and that was the Ford F100 pick-up truck. That vehicle was a vehicle that was regularly driven by Mr Freris. By taking that vehicle the accused deprived Mr Freris not only of any transport himself, but on the off chance that Mr Rivkin would ring up at any hour of the night, as he was wanton to do, it would leave Mr Freris without any vehicle. Mr Freris gave evidence that the accused never ever used this Ford pick-up truck except to move stuff. The accused didn't ask Mr Freris why did he use the red Ford pick-up truck. Well, ladies and gentlemen, our submission is that he used the red Ford pick-up truck because that was the only vehicle immediately available to him where there was not electronic security which would monitor the time of leaving the car park. That's why this accused, on his story, walked nine blocks to get the Ford, so that there would be no E record of him taking it out. [806]
Mr Tedeschi went on to submit that by taking the red utility from The Sanctuary - a vehicle that was regularly driven by Mr Freris and only by Mr Freris - he was depriving him of the use of the vehicle were he to have needed it. Mr Freris had given evidence that the plaintiff never used the red pickup "except to move stuff", [807] a position which was contradicted by the plaintiff in his first statement to Cst Woods where he said: I then walked to the Kings Cross parking station where our car is always parked, but it was not there, so I walked to Crown Street to the carpark of one of our company cars and used that car as I normally do if I need a car. [808] (Emphasis added.)
Mr Tedeschi submitted to the jury that that was a lie as the red utility was not a car that the plaintiff normally used.
In his evidence in these proceedings, Mr Tedeschi was taken to Mr Macmillan's evidence and invited to explain why he did not adduce from him that the Kings Cross carpark did not house Mr Rivkin's vehicles at the relevant time. Mr Tedeschi gave evidence that he may have been confused between the ABC Carpark and the Kings Cross carpark because they were both in Kings Cross. He went on to say that the significance of the evidence from Mr Macmillan, as he recalled it at the time of giving evidence, was that it was through him that the Crown led evidence of the plaintiff's approach to the carpark attendant on 8 June 1995 to obtain electronic records on the pretence of acting on behalf of the Coroner.
The Court then intervened to afford Mr Tedeschi the opportunity to review Mr Macmillan's evidence and to reflect upon why he was called, and also to have Mr Tedeschi reflect upon Mr Terracini's cross-examination of Mr Macmillan on the issue of the Rivkin vehicles being housed in the Kings Cross carpark, and any re-examination by him. A short adjournment was then taken.
On resumption, Mr Tedeschi maintained the explanation that, in his examination in chief and his re-examination of Mr Macmillan, he must have been confusing the Kings Cross carpark and the ABC carpark. Mr Tedeschi's explanation was based in part upon him having apparently attempted in re-examination to enquire as to whether the plaintiff would park Mr Rivkin's vehicles that he might be using from time to time as part of his chauffeuring duties in the Kings Cross carpark, as distinct from that being a carpark where Mr Rivkin's vehicles were customarily or permanently housed. When asked those questions in re-examination Mr Macmillan gave evidence that he had no recollection of seeing or being told that the plaintiff was driving any vehicle parked in the Kings Cross carpark other than the Suzuki Vitara. Mr Tedeschi also agreed that in cross-examination Mr Macmillan said that Mr Rivkin did not park any cars in the Kings Cross carpark before 1997; a matter, incidentally, which Mr Macmillan confirmed in re-examination.
Mr McClintock put to Mr Tedeschi that his claim to a state of confusion was untrue, and knowingly so. Mr McClintock also put the proposition to Mr Tedeschi that there was no reasonable possibility of confusion between the three carparks given the clearly marked Crown exhibit and Mr Freris' evidence as to the location of the three carparks in the evidence that was led from him. Mr McClintock suggested that even if confusion had infected Mr Tedeschi's understanding at the time that Mr Macmillan was called to give evidence, after his cross-examination there could have been no doubt in Mr Tedeschi's mind that Mr Macmillan's evidence as to the availability of Mr Rivkin's vehicles in the Kings Cross carpark at the relevant time was contrary to that of Mr Freris and, that being the case, his closing submissions ought to have reflected that fact. When taken to his closing address, Mr Tedeschi continued to maintain the proposition that confusion still reigned.
In final submissions, the plaintiff contended that Mr Tedeschi's evidence was entirely unsatisfactory, noting that it was not until the Court's intervention in the course of cross-examination by Mr McClintock, where Mr Tedeschi was invited to reflect upon his evidence, that he accepted that there could have been no confusion or mistake operating on his thinking since, as the extract from his closing submissions above makes plain, he had not only differentiated between the two carparks at Kings Cross but he differentiated between them by reference to the different number of Mr Rivkin's vehicles housed in them and their makes and types. Mr Tedeschi then proffered the explanation that his failure to refer to Mr Macmillan's evidence was through oversight, but not by deliberate admission. The plaintiff invited me to reject that explanation as untrue.
Clearly enough, the Crown case as opened and the subject of Mr Tedeschi's closing submissions (that the applicant walked nine blocks to get a car when there were any number of cars closer) could not be maintained since the ABC carpark (where cars were available) entailed a much shorter walking distance to The Sanctuary. However, the plaintiff's submission that Mr Tedeschi's approach to Mr Macmillan's evidence was evidence of his malice depends upon a positive finding that, knowing the content of Mr Macmillan's statement, Mr Tedeschi deliberately chose not to elicit that evidence-in-chief and, once it was elicited in cross-examination, deliberately omitted any reference to it in his closing submissions so as to maintain the integrity of the submission he has advanced that the plaintiff's version of events as to how he came to pick up the red Ford utility should be rejected by the jury as untrue and, in turn, to seek to persuade them that the plaintiff's account of his movements generally on 7 June 1995 was a fabrication designed to conceal his involvement in Ms Byrne's death.
Were I satisfied there was deliberation in Mr Tedeschi's approach, it would follow, as Mr Tedeschi ultimately accepted, that that would be a breach of his prosecutorial duties. The defendant submitted that is not a conclusion I would reach. The defendant also submitted that Mr Tedeschi's failure to refer to Mr Macmillan's evidence in closing could have no ultimate bearing on the issue of malice when the significance of the evidence relating to the carparks generally was that, irrespective of the availability of cars in the Kings Cross carpark, the plaintiff did walk directly passed the ABC Carpark (which was incidentally closer to his home) to obtain the red utility to avoid leaving an electronic record of his movements. The defendant submitted that on a fair reading of Mr Tedeschi's evidence on this issue, upon which he was comprehensively tested and retested in cross-examination, I could not reach a finding that his claim to confusion and/or error was a lie told to conceal his manipulation of the evidence at the plaintiff's trial.
Despite what I consider to be unacceptable aspects of Mr Tedeschi's evidence, I cannot confidently make a finding that his explanation that he misheard or misremembered Mr McMillian's evidence was a lie or so untenable as to justify it being rejected as unworthy of any weight. The related finding that he was probably being dishonest in attempting to proffer an explanation for his deliberate misstatement of the evidence is also not a finding I can confidently make.

[139]

The tender of Exhibit DO

Exhibit DO at the trial (Ex 96(DO) in these proceedings) is a series of five photographs taken on 15 April 2004 during a site visit to the Gap, the last two of which depict mannequins placed head first into Hole A. The photographs were extracted from A/Prof Cross's second report.
Exhibit X at the trial (Ex 96(X) in these proceedings) is a photograph also taken on 15 April 2004. It depicts a mannequin (apparently the same mannequin as that depicted in Ex DO) inserted into Hole A, oriented in the same direction as in Ex DO with the same man present in the foreground of both photographs.
Mr Tedeschi led evidence from Sgt Powderly at trial to the effect that the mannequin in Ex DO was oriented differently to the orientation of Ms Byrne's body when it was recovered. Sgt Powderly gave the following evidence: Q. During the re-enactment, you said that the orientation of Caroline Byrne's body is somewhat different to the orientation of the mannequin due to the fact that the mannequin couldn't move particularly well; is that correct? A: That's right. … Q. Now, what do you say about the orientation of Caroline Byrne's body on the night that you retrieved it, compared to the orientation of the mannequin shown in these photographs? A. In photograph 9, they've got the actual feet, are laying pointed towards the pyramid rock, whereas in fact it was only the left leg that was pointed - it was against the rock and both feet were pointing towards the rear of the pyramid. Q. So, if I give you this photograph, which is a - could I ask you to go to photograph number 10? Do you see in that photograph the left leg of the mannequin is actually touching pyramid rock? A. Yes. Q. What do you say about that and the way that Caroline Byrne's body was oriented? A. The mannequin is turned to the right so that is basically facing the pyramid rock. It needs to be rotated 90 degrees around so that the feet are actually pointing towards where the camera shot is taken from. [809]
Following this exchange, Sgt Powderly was invited by Mr Tedeschi to mark the orientation of the mannequin's head and feet. This photograph became Ex X.
The significance of the orientation of Ms Byrne's body, including her legs and feet, became apparent when Sgt Powderly gave the following evidence (over objection) in cross-examination: I formed the opinion that [the point from which Ms Byrne left the clifftop] was from basically from where the feet were pointing and the legs were pointing in a straight line, were pointing at the edge of the cliff right on the corner of that fence where I conducted the third view with the Mitrolux light. [810]
In cross-examination, Sgt Powderly was asked whether he thought it more likely Ms Byrne descended to her death from the northern rock ledge or the corner fence post, as to which he gave the following evidence: Q. Did she jump or was she thrown, or whatever, from [the northern rock ledge] that I've indicated to you? A. I have no idea. Q. You prefer the point of departure is the [corner fence post] that you indicated? A. That's correct. [811]
The plaintiff submitted that the single feature of Sgt Powderly's evidence that was consistent from his committal evidence through to his evidence at trial was that Ms Byrne's feet were pointing "straight up at the corner fence post", [812] something A/Prof Cross was well aware of as reflected in his email of 6 December 2003 to Det Insp Jacob where he said: Mark Powderly said to the coroner he thought that Caroline Byrne came from a point near the corner fence post rather than a point on the rock platform, based on the position of the body in the crevice in the rocks. [813]
In the course of Mr Tedeschi leading evidence from A/Prof Cross, the following questions were asked: Q. … You have given evidence that Sergeant Powderly was present at the Gap on an occasion when a mannequin was put into the correct location [Hole A] at pyramid rock? A: Yes. Q: Was that an occasion when you were at the top or at the bottom of the Gap? A: I was at the top of the Gap. Q: And did Sergeant Powderly say anything to you about the orientation of the mannequin, as seen in these two photographs [Ex DO], and the orientation of Caroline Byrne's body when he retrieved it? A: Yes. He instructed the officers from the Rescue Squad to place the mannequin in the location and orientation that he requested, and he - he told me that that is how he found her. [814] (Emphasis added.)
It was put to A/Prof Cross during cross-examination in these proceedings that the orientation of the mannequin in Hole A in Ex DO was inconsistent with what Sgt Powderly had told him was the orientation of Ms Byrne's body when he recovered it. In response, he said: Can I, can I clarify something that's missing from the conversation and that is I was never ever interested in the position of the legs, I was only ever interested in the position of the body, head down and legs pointing to the sky, so the legs formed no part of my reports or my investigation. So when I refer to there was the, was the orientation body correct, my answer is "yes". [815]
The plaintiff submitted that A/Prof Cross knew that Ex DO did not reflect the position and orientation that Sgt Powderly had indicated Ms Byrne's body occupied at the time her body was retrieved, and that his evidence that Sgt Powderly had told him "that is how he found her" was "patently false".
Given that I have found that A/Prof Cross is not a prosecutor for the purposes of the tort, the only remaining relevance to the tender of Ex DO in these proceedings is the plaintiff's allied submission that Mr Tedeschi knew Ex DO was misleading when compared to the evidence of Sgt Powderly, but that he tendered the photographs through A/Prof Cross notwithstanding, in order to present a more compelling account as to how Ms Byrne descended from the northern ledge to Hole A. This was said by the plaintiff to be motivated by a desire to overcome Sgt Powderly's evidence that the corner fence post was the more likely launch site. The defendant complains that the ulterior purpose the plaintiff attributes to Mr Tedeschi was not put to him in breach of the rule in Browne v Dunn. The plaintiff submitted that in doing so Mr Tedeschi breached his obligations to present the Crown case objectively, fairly and honestly. [816] Mr Tedeschi rejected the proposition that he knew A/Prof Cross was not telling the truth about the orientation of the body.
The apparently misleading purpose for which Ex DO was tendered was said by the plaintiff to be evidenced by Mr Tedeschi tendering the exhibit, and the questions of A/Prof Cross immediately thereafter as to the trajectory Ms Byrne took in her descent from the northern ledge to Hole A. The plaintiff submitted these questions would have been significantly less effective if Ms Byrne's legs and head had been orientated 90 degrees away from the northern ledge, as described by Sgt Powderly.
During cross-examination, Mr Tedeschi rejected the proposition that he had tendered Ex DO with the objective of misleading the jury: Q: … First, I want you to agree that Professor Cross oriented the body with the legs pointing towards the northern ledge because that was consistent with the body coming from the northern ledge, whereas what Sergeant Powderly had shown was not so consistent. Do you agree with me or not? A: I can't hypothesise about what was in Professor Cross's mind, but in my view, the evidence, in its totality that was led as to the passage of the body into the hole, was utterly consistent with her having come from the northern rock ledge. Q: What I want to suggest was that the evidence, exhibit DO, was seriously misleading in a very serious manner. Do you agree with that or not? A: No, I don't. Q: You knew that. A: No, I don't agree. Q: You would agree with me, wouldn't you, that the orientation of the body as shown in exhibit X would in fact be more consistent with landing in hole B. A: No. Q. Do you agree with that or not? A. No, I don't agree for this reason, that I don't think that the orientation of the body tells you much about where the direction that the body has come for two reasons. That firstly, the evidence of Sergeant Powderly was that there was a trace of body, to use a neutral term, on the lower part of pyramid rock so that she had very briefly skimmed pyramid rock before entering hole A, and the orientation of her body I considered had more to do with, firstly, glancing pyramid rock and, secondly, the - the location of the rocks in the hole A into which she'd come, and depending upon which rock she hit first and - and how she came to rest, I considered that that could well have changed the orientation of the body so that I didn't think really that the orientation of the body told you much about where she'd come at all. [817]
I am satisfied that Ex DO did not reflect the precise orientation of Ms Byrne's body as described (and marked on Ex X) by Sgt Powderly because, as Sgt Powderly said in his evidence, the mannequin "needs to be rotated 90 degrees around so that the feet are actually pointing towards where the camera shot is taken from", [818] a matter Mr Tedeschi ought to have known (and apparently did know) given he led that evidence from Sgt Powderly to that effect. Notwithstanding, I am not satisfied that the tender or use to which Ex DO was put was ultimately intended by Mr Tedeschi to mislead the jury, nor was the tender or the use of the photographs in breach of his obligations as a prosecutor to put the case objective, fairly and honestly. That being so, the question as to whether there was a breach of the rule in Browne v Dunn does not arise.
I am also not satisfied that the tender and provision of Ex DO to the jury, rather than the use of Ex X as marked by Sgt Powderly showing the correct orientation of Ms Byrne's body, unfairly detracted from Sgt Powderly's oral evidence as to the orientation of Ms Byrne's body, or that it was intended by Mr Tedeschi to do so. It was Mr Tedeschi who invited Sgt Powderly to mark the proper orientation of Ms Byrne's body (thus creating Ex X which was then tendered). Mr Tedeschi also led from Sgt Powderly his opinion as to the point from which Ms Byrne left the cliff top, as to which Sgt Powderly said: [T]hat's why I formed the opinion that it was from basically from where the feet were pointing and the legs were pointing in a straight line, were pointing at the edge of the cliff right on the corner of that fence. [819]
I am not satisfied that this particular of malice is made out.

[140]

The "50 Questions"

During Mr Tedeschi's closing address he provided to the trial judge a list of 50 questions which he identified as "the salient questions in order to decide the outcome of the case". He indicated his intention to hand to the jury the 50 questions in writing. Defence counsel objected to that proposal in its entirety. His Honour observed as follows: The trouble is, Mr Crown, that they are contentious and, in the way they are framed, individually tendentious. [820]
Without objection from defence counsel, however, Mr Tedeschi was permitted by the trial judge to refer to each of the 50 questions in turn and in the form in which they had been framed in writing as part of his closing submissions. They are set out in full as follows: 1: How did the accused know exactly where Caroline's body was located before it was found by the police? 2: How did the accused know that she was feet up before she was found by the police? 3: Why did Caroline tell Angelo Georgiou such terrible things about the deterioration of their relationship and the grave fears that she held for her safety? 4: What was the argument in the gym about that was witnessed by Christine McVeigh on the Friday before Caroline's death and why was Gary Redding standing shoulder to shoulder with the accused? 5: Was the accused expecting massive bonuses from Rene Rivkin; and, if so, when and after what deal had been done? 6: Why was it that the accused employment [sic] with Rene Rivkin was under such a threat in about March 1995, and what was the plan that he devised to get around this? 7: If the accused had been advising people to buy Offset Alpine Printing Company shares at a time when he knew that the price was going to massively increase, was this insider trading information? If so, had he disclosed such insider trading information to Caroline and Tony Byrne and, indeed, to others? 8: If the ASC inquiry was important enough to cause Rene Rivkin to go on a three-week overseas trip to speak to bankers, was the accused under any pressure at being called before the inquiry on Tuesday, 6 June? 9: Was Caroline concerned about Rene Rivkin's intentions towards the accused? And did those concerns heighten during the overseas trip? 10: Why did the accused order his lunch with Basquali and Samartis at Ditto's if he was planning afterwards to go home and have lunch with Caroline? 11: Why is there no phone record of Rene Rivkin contacting the accused on his mobile phone on 7 June to ask him to drive him, other than a call at 11.38 am? 12: How did the accused get it so wrong about having driven Graham Richardson before and after lunch on 7 June when he spoke to his friends just three days later on the Saturday? 13: Is it just an amazing coincidence that Mr Martin and Mr Melbourne described two people at Watsons Bay around lunchtime who so closely fit the description of Caroline Byrne and the accused? 14: What was the Vitara doing at Watsons Bay at lunchtime on 7 June? 15: What was it that apparently made Caroline so groggy at lunchtime on 7 June, as related by the accused? And why was there no trace of any drug or alcohol in her blood at the time of her death? 16: What was it that the accused reported to Rene Rivkin at the Alife restaurant, when he arrived with Gary Redding, at about 3pm on the 7th that caused Rene Rivkin to become so agitated? 17: Why was it that the accused became so defensive about Mr Jaggard having seen him at the Alife restaurant at about 3pm on 7 June, that he threatened Mr Jaggard and offered him a share deal in the UK? 18: Why did Caroline purchase some petrol and a Freddo frog and get $50 out of the bank between 3 and 4 pm on the 7th? 19: What was the Vitara doing at Watsons Bay at 4 to 5 pm on 7 June? 20: Did the argument at Watsons Bay that went for three and a half hours, leading up to the scream, involve Caroline Byrne? 21: Would Caroline have voluntarily gone over the fence onto the rock at the cliff line if she was having a severe argument with two men during which she had been sobbing? 22: Why would Caroline have only issued a very brief scream? 23: How would anybody, athletic or not, do a running dive from the top of The Gap in almost total darkness and on uneven ground into either Hole A or Hole B? 24. In the light of Professor Cross's testing, is there any other way of throwing someone into Hole A other than a spear throw by a very strong man? 25: In 1995 was the accused a very strong man? 26: Why did the accused fall asleep for four and a half hours, as he says, when he got home? 27: Why didn't he hear his beeper going off? 28: Why was his mobile phone switched off and the voice mail diverted? 29: Why was Caroline's mobile phone switched off and the voice mail diverted? 30: Did the accused listen to the messages on the answering machine? 31: When he awoke, why did he get into a panic? 32: When he got into a panic, why didn't he try ringing Caroline's mobile? 33: When he got into a panic, why didn't he ring The Connaught? 3 4: Why didn't he look for Caroline in coffee shops at Kings Cross or in the city? 35: Why did the accused walk nine blocks to get the Ford pick-up truck from the Sanctuary? 36: Why didn't the accused go into The Connaught to see if Caroline or her car was there? 37: Was it sheer coincidence that the accused found the Vitara at Watsons Bay? 38: When he found her car at Watsons Bay, did he think she might be with Peter or one of her friends at the hotel, or one of the restaurants? 39. When he searched her car, did he find the note from Lateef and, if so, why didn't he become concerned that she might be with another man? 40. Why did he conduct such a brief search, and only to the north of the fishermen? 41: Why did he abandon the search in order to pick up Tony and Peter Byrne when they could just as easily have come to Watsons Bay themselves? 42: Why did he engage in a charade when he gave the wallet to Peter and Tony to look at? 43: Why did he engage in such a cursory search with Tony and Peter between the fishermen and the house? 44: If his mobile phone battery was really flat, why didn't he try ringing home to see if Caroline had come back home? And why didn't he access his messages when he got the battery for the phone? 45: How did he know precisely what clothing Caroline was wearing? 46: Why were Caroline's keys found on her body but not her handbag, her wallet, her mobile phone, her watch, her referral and her recent receipts? 47: What made the accused think that Caroline had been at The Gap on the evening of Tuesday, 6 June? 48: Why had the accused tried to get a medical certificate from Dr Grech before Caroline came home on Tuesday, 6 June? 49: How did the accused know that Caroline had been laying a trail from Paddington to Vaucluse towards The Gap on the afternoon of 7 June? 50: Why did the accused never mention any of his concerns about Andrew Blanchette to the police? [821]
In drawing attention to "the 50 Questions", he invited the jury to consider any answers Mr Terracini might volunteer to the questions he had posed.
In his evidence in these proceedings Mr Tedeschi admitted that he read the questions slowly so the jury could take down notes of each of the questions for their consideration. Mr Tedeschi commenced his recitation of the list of questions with the exhortation that while it was not for the accused to prove anything, he said: What I am suggesting to you is that during the course of Mr Terracini's address, you pay particular attention to any responses that he might have to these questions. He might choose not to respond to them at all, but, if he does choose to respond to them, I suggest to you that they might be of particular importance to you in resolving this case. [822]
In these proceedings Mr Tedeschi acknowledged that having regard to the judgment of the Court of Criminal Appeal, it is not now permissible to ask rhetorical questions because of the risk of reversing the onus of proof. He claimed that he was not aware of that risk in framing "the 50 Questions" and citing them as part of his address. He rejected the proposition that in taking that approach he was complying with the "letter" of the trial judge's direction but not its spirit. He gave evidence that he understood he was prohibited from circulating a document for the jury to take with them into the jury room, but that he was permitted to have the questions he wished to pose for the jury delivered orally and for the jury to note them down.
In final submissions the plaintiff submitted that contrary to Mr Tedeschi's evidence, the Court would be satisfied that he was in fact aware of the risk that he was reversing the onus of proof by posing "the 50 Questions" and, notwithstanding, he proceeded to read slowly and carefully through the questions with the objective of obtaining an illegitimate tactical advantage in order to secure a conviction. The plaintiff submitted that no prosecutor intending to present his or her case in a balanced or fair way would ever have put the "50 rhetorical questions" in the form recited in Mr Tedeschi's closing address.
It was the plaintiff's submission that long-standing authority, of which Mr Tedeschi must be taken to be aware, established that many, if not most, of the questions were objectionable and improper by their terms. The plaintiff further submitted that Mr Tedeschi ought to have been aware that the form of the questions also involved a breach of s 20(2) of the Evidence Act, consistent with the seminal principle that an accused person has a right to silence.
In short, it is the plaintiff's submission that the questions were designed as an advocacy technique to ensure a conviction, that objective being contrary to the primary duty of a prosecutor not to fight for a conviction. Put another way, the plaintiff submitted that for Mr Tedeschi to believe that it was acceptable to ask the 50 questions is highly suggestive, if not confirmatory, of his impermissible approach as a prosecutor and a wholly impermissible objective in straining for a conviction.
Despite there being no objection from Mr Terracini to the course Mr Tedeschi signalled he intended to take, as a Crown Prosecutor, the defendant accepted that Mr Tedeschi had an independent responsibility to abide by his ethical and legal obligations. The defendant submitted, however, that the fact that Mr Tedeschi determined to proceed as he did does not establish that he set out to deliberately take an improper course with the intention of unfairly prejudicing the plaintiff. The defendant invited the Court to accept Mr Tedeschi's evidence in these proceedings that he had no appreciation at the time of trial that he was doing anything other than making a perfectly proper and legitimate submission based on the evidence, and that, for his part, he saw nothing unfair in the form of the questions or the process he adopted in bringing them to the jury's attention.
Ultimately, what cannot be ignored is that Mr Tedeschi took the approach to the "50 Questions" openly and after the trial judge had heard submissions from both Mr Terracini and Mr Tedeschi. The defendant submitted that the only fair conclusion this Court could make is that Mr Tedeschi's conduct at that time was not malicious, but based on a mistaken view of the law. The defendant submitted that Mr Tedeschi's candid acknowledgment of that fact in these proceedings must operate to displace the plaintiff's submission that he knew at all times that what he was doing was to reverse the onus of proof - a prohibition which is fundamental to the adversarial nature of a criminal trial. While for a Senior Crown Prosecutor of New South Wales not to see his approach as undermining that fundamental principle is so astounding as to make it difficult to accept, I cannot discount the reasonable possibility that Mr Tedeschi's ignorance of the law is at least an equally probable explanation for the approach he took. For that reason, I am unable to conclude that it is conduct from which malice might be inferred.
The particular of malice in par 16.65 of the FASC is not made out.

[141]

The "killer point"

The Crown case was opened to the jury on the basis that part of the composite of evidence upon which they would ultimately find that the plaintiff was at the Gap when Ms Byrne descended to her death was what Mr Tedeschi described as "the accused's extraordinary knowledge of where Caroline's body was". [823] That submission was developed at length in the evidence adduced at trial from a number of people to whom the plaintiff spoke before the search for Ms Byrne commenced, during the course of the search and after Ms Byrne's body was located. That evidence was, in turn, derived from statements obtained from a large contingent of civilian and police witnesses during the course of Strike Force Irondale and Det Insp Jacob's analysis of that evidence, in combination with a range of other features of the plaintiff's behaviour on 7 and 8 June 1995 (and the days and weeks which followed) which were relied upon as highly suggestive of guilt.
Given the significance of this evidence to the way Mr Tedeschi opened the Crown case to the jury, and the way the case was left to them in closing, it is necessary to set out the evidence in some detail.
In his opening remarks, Mr Tedeschi made the following statement (T33 at trial, Ex 71 in these proceedings) about what would become the "killer point": Firstly, evidence which the Crown will say proves that Gordon Wood must have been present when Caroline Byrne went over The Gap, to use a neutral phrase… It also includes evidence that well before anybody else had seen Caroline's body at the bottom of The Gap, the accused knew precisely where her body was located and claimed to be able to see her body during that night at the base of The Gap at a time when nobody else could see her body due to the darkness, due to the amount of salt spray that was being whipped up by the water, to the extent that even the police, with extensive searchlights, for a long time were not able to see her body at the base of The Gap. But the accused still, during a period of time when he couldn't possibly have known where her body was unless he had been there when she went over The Gap, showed his knowledge after the time when she went over and knew exactly where her body was, and exactly what clothing she was wearing. [824]
In his closing, Mr Tedeschi emphasised this point at the beginning of his argument. Towards the end of his closing, the first two of the Crown Prosecutor's "50 Questions" were: 1. How did the accused know exactly where Caroline's body was located before it was found by police? 2. How did the accused know that she was feet up before she was found by police? [825]
The plaintiff contends that the evidence before the Senior Crown Prosecutor, in the form of the police brief and evidence before the jury, did not support his submission that the only rational explanation for the plaintiff's supposed knowledge of the location of Ms Byrne's body at the base of the Gap was that he was present when she left the cliff top. The defendant's submission is to the contrary. That evidence warrants being set out in some detail.

[142]

The various accounts of seeing Ms Byrne's body and clothing at the base of the cliff

In pars 12 and 13 of the plaintiff's statement on 12 June 1995, he said: 12. I then rang her father and brother from a phone box on the street and told that the car was at the Gap and Caroline was missing and that I would come and get them. I then drove to Caroline's father building and picked him and her brother Peter up and drove back to her car. The three of us searched around and borrowed a torch of the fisherman for about 15 minutes. I saw what I thought was shoes at the base for the cliff however Peter said that he didn't believe that look like shoes [sic]. We then decided to go to the Police station which we did at Watson's Bay. The Police then went with us back to the gap and they looked around and told us that they hadn't found anything and that they would call in other assistance. 13. I then drove Caroline's father and brother home and returned to our flat to get a battery for the mobile and to see what clothing was missing for the Police. I then returned to the Gap and spoke with the Police, Caroline had still not been found and I then showed a Policeman where I thought I saw the shoes which he then looked at with his torch and was in fact Caroline's body. I stayed at the cliffs until Caroline's body was bought to the top and then went with the Police to back to the Police station. [826] (Emphasis added.)
In the plaintiff's record of interview with Det Insp Wyver on 14 June 1996, at Q40, he said: I remember the helicopter flying up and down and like it was way away and I can remember thinking, That's ridiculous, you're in the wrong area. And I said to one - they had these big torches that threw a square of light and I remember saying to one of the cops holding that, I said, Have a look down there. I thought I saw something, where I thought I saw the sneakers with Peter. And he shone the torch in the general direction and it lit up most of the rocks down there and I could see her legs and I said, There, that's her down there, and he looked and somehow he didn't see it, and he said, he said, No, I can't see anything there and kept moving it away and I remember saying, No, no, look back there. That's her there. And he shone the torch on her and then they could see her legs sticking up. [827] (Emphasis added.)
The plaintiff participated in an interview with Det Sgt Jubelin in the United Kingdom on 23 July 2001. In response to a statement by Ms Natalie McCamley of 3 April 2000 in which she said he told her he saw shoes and directed the police to the area where the body was found the interview, the plaintiff stated: A. Oh, I didn't direct the police anywhere. I think you will find anybody who was there, I didn't, I don't think I ever spoke to the police. Q1027 All right. A. I don't think I did. I mean I - Q1028 Yeah. A. - I might've said, I think I might've said when they had the light on her - Q1029 Yeah A. - like, that, that's her, there she is. Q1030 Right. A. 'Cause the light was moving on and off her as if they were still searching… Q1031 Right. A. I think, Gary. Q1032 Mmm. A. But I never, I never said to the police, you know, she's there, or, she's here or, but I do remember, I remember in the early light of the morning - Q1033 Yeah. A. - with the big search lights, I remember seeing her, but the light didn't stay on her. Q1034 Right. A. And I remember the light - Q1035 The lights… A. - I think I remember saying to somebody, no, no, she's there, you, you've missed her, there she is, sort of thing. [828] (Emphasis added.)
Later in the same interview, after the plaintiff was read par 13 of his statement of 12 June 1995, in which he said he "showed a policeman where [he] thought [he] saw the shoes", [829] he responded: A. Yeah. Q1042 - that was in fact where they found the body? A. I would agree that that's what that says. Q1042 Right. And is that accurate? A. Gary, how do I, it's 5 days later, it's the closest statement I've made to her death. Q1043 Right. A. It's probably the statement I made when I was in the least stable frame of mind. I would go with that. [830] (Emphasis added.)
After discussing what he thought he had seen and the location where the body was found, in response to Q1061 the plaintiff said: A. I think it's a directional thing rather than a specific destination, I think. Q1062 I, I do know what you mean but we can only draw the inference then it was just purely by chance that where you thought you saw the shoes was above where Caroline's body was found? A. I, I have to agree that that's all we can deduce. [831] (Emphasis added.)
Peter Byrne gave the following evidence at trial: Q. So your father left you and Mr Wood to continue to search. A. That's correct. Q. Now, would you tell the Court what happened when you and the accused continued the search? A. We only continued up the path for a short way, then we gave up and we started to head back down towards The Anchor again. Q. And whilst you were heading back towards the anchor, what happened? A. I was in the lead and Gordon Wood pulled me up and said to me that, indicating over the cliff face in a northerly direction, he indicated to me that he could see something down below. Q. What did he say to you? A. He said to me that he could see something down below. I said - I had a look where he was indicating and I couldn't make out anything that was - as I said, it was too dark and it was shadowy images. Q. At some stage, did he say to you what he thought he could see? A. Yes. He stated to me that he could see legs and a body. Q. As best you can, could you tell us, as closely as you can, what he actually said? He said? A. Okay. He said to me, "Look, Pete, down there. I can see legs and a body. It looks like legs and a body". And I said, "Oh look, Gordon, I still can't see anything down there, I can't make out anything." He's then still convinced that he can see something down there and he's said to me that he will go and then get access to the torch again. Q. Yes. A. He's then returned to me with the torch, shone it down, aimed the torch in that same direction he was pointing and then once again said to me that he could see body parts in that - to the area that he was indicating. Once again, I could still make out nothing. Q. Are you able to give us a description of the path and the cliff face at that point where he claimed to be able to see some legs and a body? A. Yes, just north from the anchor where the cliff line comes very close to the fence line, and that's where he was indicating to me. Q. So how close was the cliff line to the fence line at that point? A. Oh, a foot or so. Q. Are you able to say in which direction did he indicate, either with his hand or with the torch or any way, in which direction from that point he indicated where he claimed to be able to see some legs and a body? A. Yes. It was in a northerly direction, angling downwards. Q. At some later stage, a long time later, did you go to the police and identify to them the exact spot where this had occurred, where the accused had claimed to be able to see some legs and a body, and did you indicate to the police the direction in which he was indicating? A. Yes, I most certainly did. [832] (Emphasis added.)
Exhibit P at trial marked the location Peter Byrne and the plaintiff were standing as this interaction occurred.
Peter Byrne also gave the following evidence: Q. Now, even though the accused had said that he could see legs and shoes and a body, or body parts, what did he next say or suggest to you? A. Oh, after the torch, you mean? Q. Yes, after the torch? A. Oh, he then - after I - I couldn't see anything, then he suggested to me that there was a place further down the track down south that he used to go and think when had problems and maybe Caroline was down there. Q. All right. He indicated in a southerly direction? A. Yes, in a southerly direction. Q. And did he indicate to you, either by telling you or pointing to you, whether it was on your side of the anchor or past the anchor to the south of the anchor? A. Oh, we were just about to go past the anchor when my father pulled us up, saying that we should just go to the police station. Q. All right. So he was indicating further south past the anchor? A. Yes, that's correct. [833]
In recollecting the events later in the morning, he gave the following evidence: Q. All right. At about 5am, did the phone ring? A. Yes, it did. Q. And did you answer it? A. I believe I did, yes. Q. Would you tell the Court who it was? A. Yes, it was Wood, and he told me that the police had recovered and found Caroline's body, and he also said to me that, "It was where we were looking Pete, it was the spot where we were looking. That's where they found her." [834] (Emphasis added.)
On 7 August 2003, Peter Byrne participated in a walkthrough interview with Det Sgt Quigg. Upon reaching the point marked in Ex P the following interaction occurred: Q. Can you tell me what happened at the point where we're now standing in the early hours of the morning on the 8th June 1995? A. Okay, well myself and Gordon were heading back to the, where the fishermen were and we were walking around along this area here. I was leading and Gordon pulled me up and around about this area and he said to me, "Peter, look, it looks like something down there", and he's, he's got his hand and he's pointing towards a rock, it's I guess in this - here today it appears to be - that, that pyramid shaped rock down there, and when he's pointed at it he said to me "Peter it looks like legs and a body" and so I've, so I've, I've looked where he's pointing and I've strained and I can't make anything out. I've said to him "Gordon I can't see anything", and we were here for about a minute just talking and he's, he's telling me that he can see something down there. In the end I still couldn't see anything so he said, so he said to me "right Peter I'll go and grab the torch". So, so he's headed off back down the pathway, Gordon's headed off back down the pathway and within two minutes he's returned with the, with the torch. Once again he's, he's come up to, come up to the railing here and he's shone the torch down in the general direction once again where he was pointing to me and he said "Look Peter, it looks like shoes and legs" and still, I believe I've got pretty good eyesight, but I still, I couldn't make out anything that he could see, that he could see there. To me when I'm looking, when I was looking over here that night I could make out that there was possibly boulders down below, the sea was crashing in it was quite a big swell so there's spray, spray, I could see spray generally in the, in the area but I could, I couldn't make out anything discerning. Even the rocks they just looked like blurred shapes but I believe that they were boulders, it did seem to me that they were possibly boulders. As far as seeing legs or a body or shoes, I couldn't see anything so, for about a, about another minute we were there with the torch and Gordon's trying to show me where it is and pointing and again I said to him "look I'm sorry Gordon I can't see anything there". [835] (Emphasis added.)
In relation to the power of the torch the plaintiff was using to look down onto the rocks, he said: [W]ith the torch, I'm not sure whether he, he got it from the fishermen or my father, but he returned, he returned with the torch. The torch was, was, as I mentioned earlier, there wasn't much [of] a beam to it. It was an orange, orange glow more than a white, white shining, it wasn't brilliant by any means. And he was, I was, I was probably standing about her and he was sort of left of me, probably about here, and, and pointing. He came up and shone the, shone the torch down to where he was, in the direction he was pointing earlier, and he's, he's told me that he thinks that he, he believes that he could see legs and, and shoes. So to me, I, I, I still couldn't make anything out, even with the torch. The, the torch may have been able to illuminate that there was, that, it'd be better that there were boulders there, and that there was, there was a, a heavy, heavy swell with waves breaking over the rocks and spray, spray everywhere. But to make out anything, anything else, was, yeah, impossible … in my opinion. [836] (Emphasis added.)
Sgt Powderly gave the following evidence at trial: Q. Now, when you set up the Mitrolux light in the second position which gave you a better view of this discolouration which you though could have been a shoe and a leg, when you had been able to set it up and see this discolouration, did somebody say something behind you? A. Yes, they did, sir. Some comment was passed behind me. I can't remember exactly what it was. I didn't respond to whoever spoke. Q. Was it male or female? A. I believe it was a male person. Q. And what did that person say? A. I think it was, "They're the clothes that she - that's her. That's the clothes she was wearing", or similar to that. Q. "That's her, that's the clothes she was wearing". Could you see any clothes at all? A. The only clothing that I could see was where I believe there was a leg that you could see what - a cream area and then what appeared to be a black area. [837] (Emphasis added.)
In his walkthrough re-enactment of the early hours of 8 June 1995, also tendered at the trial, Sgt Powderly outlined the process of the search with the Mitrolux light. At approximately the southern end of the southern rock platform he stated: This is the second location I moved to as previously described. It's approximately 20 meters north of the original platform, from where I first made some sort of note, notation of some discolouration against the face of the rock. I continued the search from here and again I concentrated the Mitralux light on the pyramid type rock with the three sort of white points on the top of it in the, in the distance to the north. From here it is approximately about 40 meters across to that rock, it was here that the, the light indicated the, what appeared to be a, a fairly regular shape and it was at this point that I formed the opinion that there was a, what appeared to be possibly human legs. It showed fairly clearly in the light even though the, there was a strong sea mist and, but the light indicated the, what appeared to be the legs of a human being. It was then that somebody behind me the fence passed the comment about that being the clothes that she was wearing. [838] (Emphasis added.)
After describing the recovery of the body, he stated (at 36:20): A short time later I was brought to the top of the cliff and I was let out of the Larkin Frame and my harness gear here, detached, and I commenced then to walk to an area over here where I'd left my roping pack and all my gear on the ground, and I was just near, just near the fence area, approximately about here. I will indicate for the video that these trees weren't here in those days, this is totally new growth. This platform was large enough to land a police helicopter on. Whilst I was standing here with my bag and all my roping apparatus was on the ground I heard a voice behind me say, "thank you very much for going there and getting her". I turned and just looked. I don't recognise the person and I don't know the identity of the person that spoke to me. [839] (Emphasis added.)
Snr Cst Camwell gave evidence at trial that it was not possible to see the base of the gap with the police issue Magnalite torches and that the Mitrolux light was then used by Sgt Powderly to search the area beneath the cliffs and the walls of the cliffs.
In describing the search process she gave the following evidence: Q. Can you recall at one particular point, as you and Sergeant Powderly were proceeding north along The Gap and Sergeant Powderly was searching using the Mitrolux light, can you recall the accused, Gordon Wood, saying something in particular? A. Yes. Q. What did he say? A. "There she is, there. There she is." Q. There she is, there. There she is." A. Something. Q. Now, at that time, had you seen anything? A. No. Q. So what did you then do? What did you notice? A. Well, I looked at Sergeant Powderly, because I couldn't see anything, I could only see the rocks, in case I had missed something, or he had seen something, or where the light was pointing. Q. And what did you notice? A. The beam of light moved again, and then I could see a pair of legs or some legs sticking out of some rocks. [840] (Emphasis added.)

[144]

The "Witness" program (Ex 1 in these proceedings)

On 12 April 1998 the Channel 7 "Witness" program was aired. It included Paul Barry separately interviewing Mr Byrne and the plaintiff in relation to their account of the events of 7 and 8 June 1995. Some of the relevant extracts are as follows: Plaintiff: No, I don't certainly don't know she is down there. I would, I would want to find her, I would imagine. I just want to find her, maybe I wanted to find her on the ledge injured but ok, but the fact of the matter is if a torch can't reach the bottom of the Gap how could [I have] seen her? So I would have to have been pointing the torch at something else that's not so far down. Mr Barry: Or maybe knowing that she's down there already. Plaintiff: I would be a bit of an idiot, wouldn't I, to point to everybody about where she was if I had killed her. That would be a little bit dense. Mr Barry: Well if you can see nothing at all you are a bit of an idiot to say you can. Plaintiff: Maybe I thought I could see something on the rocks. Peter seemed to think it was too big to be a foot. [844] … Mr Barry: … [W]hen the police rescue squad finally arrived at the gap, they shine a very powerful light down on to the rocks. You say "There she is, those are the clothes she was wearing", is that right? Plaintiff: I couldn't tell you, if I said that and it's on record then I said that. Mr Barry: How the hell would you know what clothes she was wearing? Plaintiff: I think it's also in the record that I went back to the apartment to find out when I got my mobile phone after I dropped her father and brother back I went to the apartment specifically to find out what she was wearing. Mr Barry: I wouldn't be able to go back to my wardrobe and know what clothes I was wearing if I didn't already know. How the hell can you go back to her wardrobe and find out what's missing? Plaintiff: It's, oh, very easy, Caroline only owned one denim jacket, she owned one pair of runners and she had two pairs of black tights, simple. Mr Barry: You knew that much about her? Plaintiff: I knew everything about her I thought. [845]

[145]

Mr Tedeschi's closing address on "the killer point"

In the preparatory remarks to his closing address, Mr Tedeschi said: Normally, what I do in an address like this would be to start at the beginning of the story and work through it chronologically and come to the end of the story. What I would like to do instead, in this address, is to submit to you what the Crown says is the bottom line of the prosecution case against the accused, Gordon Wood, because, in this case the bottom line is very straightforward and very simple. The bottom line is this: that this accused knew exactly where Caroline Byrne's body was; and this accused knew that her body was feet up at a time when he couldn't possibly have known that unless he was there when she went over the cliff. His knowledge of precisely where her body was and that it was feet up could not have been obtained by any other means, other than that he was there when her body went over. Now, ladies and gentlemen, let's look at all of the people to whom the accused indicated his precise knowledge of where her body was and the orientation of her body being head first. [846] (Emphasis added.)
Mr Tedeschi then reviewed the evidence from a number of people, including Peter Byrne, Cst Griffith, and Narelle Cook, Natalie Butler, Kylie Watson (friends of Ms Byrne), where to each of them in a number of ways, the plaintiff made statements the net effect of which was, according to the Crown, that he was claiming to have seen the location where Ms Byrne's body was ultimately found before it was found and to others, principally Ms Byrne's friends, that he saw her shoes, part of her ankle skin and leg, and the lower leg of her tights. That body of evidence was comprehensively adduced and tested in the course of the trial. It was the Crown case, and Mr Tedeschi put it firmly, that the plaintiff could only have known where Ms Byrne's body was, including its orientation and the clothes she was wearing, if he was with her when she descended from the cliff top.
After analysing that evidence, and after attributing to the plaintiff a motive for making the claim to have been able to see her feet (namely, part of his determination to convince everybody that Ms Byrne had committed suicide), Mr Tedeschi advanced the following submission: Now, ladies and gentlemen, that, we submit, is the bottom line of the prosecution case. It's not the only evidence, there's a lot of other evidence, but we submit that this is, call it what you like, a killer point, an irrefutable point? Some evidence for which there is no other rational explanation other than the guilt of the accused? Call it what you like. Call it a bottom line. [847] (Emphasis added.)
This submission was repeated as Questions 1, 2 and 45 of the "50 Questions" as part of Mr Tedeschi's closing address: 1. How did the accused know exactly where Caroline's body was located before it was found by the police? 2. How did the accused know that she was feet up before she was found by the police? … 45. How did he know precisely what clothing Caroline was wearing? [848] (Emphasis added.)
In these proceedings, the complaint the plaintiff makes is that the way in which the "bottom line" submission was presented to the jury was that the plaintiff knew "exactly" or "precisely" where the body was when there was no evidence that the plaintiff did anything other than to appoint "the approximate or general area" where the body was located (that is, towards Pyramid Rock). In his evidence Mr Tedeschi said that all he intended to suggest in the "killer point" submission was that the plaintiff knew the location where her body would ultimately be recovered, and with some precision, relative to the expanse of the cliff top around the Gap. As the defendant points out in its submissions (and with some force), the plaintiff's concession through his counsel that he in fact pointed towards Pyramid Rock when he was with Peter Byrne cannot stand with the preceding submission that this aspect of the Crown case was "worthless" (which I take to mean evidence of no probative weight).
This is another example of what the defendant submitted is a highly selective analysis of Mr Tedeschi's closing submissions and one which takes the plaintiff's complaint about his use of the words "exact" and "precise" out of context. What the defendant emphasises as an unequivocal proposition is that in the early morning of 8 June 1995 it was too dark and overhung with mist to see the base of the Gap, such that any suggestion that the plaintiff knew the exact hole (being Hole A), which Ms Byrne had entered in a head first descent, would have been unpersuasive in any event. That (as the defendant submitted) was not the Crown case and was never suggested to be. Rather, it was the Crown case that the plaintiff was able to point toward Pyramid Rock, before being told about the fishermen having heard a scream orienting from that direction, and that he claimed to see her footwear, an assertion only capable of rational explanation if he knew she descended from the cliff edge from a position proximate to the northern ledge and that she was wearing white joggers at the time.
Whilst it would appear on first reading to be a complaint well-made that Mr Tedeschi claimed in his closing submissions that Sgt Gale gave evidence that before anybody could see a body the plaintiff said "that's her" (given that one part of Sgt Gale's evidence was that it was after the body had been located that he recalled the plaintiff saying "that's her, I want to see her"), the plaintiff's submission that that was a deliberate misstatement of the evidence cannot be accepted, given a further passage of Sgt Gale's evidence (not quoted by the plaintiff in his final submissions) which reads: Q. When the accused said to you the words, "That's her", as you've already told us, from where you and he were situated at the time, was there any way that he could have seen the body at the base of the cliff? A. No, it was not possible. Q. Would you explain why? A. Because we were well back from the cliff's edge, well back from the safety fence, and the cliff's edge jutted out, so even the Rescue Squad was required to climb halfway down the cliff to be able to see the body with their torch.
So far as Mr Tedeschi's emphasis on the plaintiff being able to comment upon Ms Byrne's shoes as revealing his knowledge of what she was wearing, his evidence in these proceedings was that what he was seeking to advance by way of submission (and a submission he sought to clarify in a discussion with the trial judge) was that it showed: [S]ome knowledge on the part of [the plaintiff] that she'd gone over head first, - not that she was necessarily stuck in a hole head [first] - with her feet up, but that he knew she'd gone over head first, and that his statement that he could see her feet demonstrated some knowledge of that.
In its submissions, the defendant emphasised that the evidence led at trial from Sgt Powderly and Snr Cst Woods was that the plaintiff asserted a knowledge of what Ms Byrne was wearing on the day of her death, although on his own account he had not seen her dressed at any time on 7 June 1995. The defendant submitted that the readily available inference, and an inference upon which the Crown was entitled to place significant reliance, was that he knew what she was wearing because he was with her when she died. The defendant went further and submitted as follows: The clothes she was wearing (denim jacket, black tights and sneakers) were unusual for her to wear in public because, as Ms Natalie Butler stated in her evidence, if Ms Byrne was sick she would have possibly have worn a scarf and she never wandered around with gym clothes particularly if it was cold (this was winter). The plaintiff's explanation to the police and others that he went back to the apartment to look in the wardrobe and she only owned one pair of joggers, four pair of tights and a denim jacket therefore she knew what she was wearing, is inherently implausible. His version subsequently changed to one pair of joggers, one denim jacket and two pairs of black tights. The evidence from her good friend Ms Butler and her sister Deanna Byrne, who cleaned out her wardrobe three days after her death clearly demonstrates that Ms Byrne was a model who owned an "enormous" quantity of clothing of a wide variety.
There is force in that analysis.
The plaintiff also submitted that Mr Tedeschi deliberately misstated Sgt Powderly's evidence (a submission which the plaintiff contends he knew was false at the time he made it) when he advanced the following submission: So we then come to the next point, ladies and gentlemen, which is this: that by some extraordinary means, the accused knew exactly what clothing Caroline was wearing [when her body was located]. He demonstrated that a number of times at the scene at the Gap and then later on at the police station. [849]
In advancing that submission Mr Tedeschi attributed to Sgt Powderly the fact that when he initially put the Mitrolux in the area where Caroline's body was later found, the light "just went past there" when the accused said to him "that's her. That's the clothing that she was wearing". Mr Tedeschi went on to submit: [A]t that stage, Sgt Powderly hadn't seen a thing; he had to bring the Mitrolux back to be able to actually see what was just a discolouration at that time, but [which] later turned out to be Caroline's body". [850]
Sergeant Powderly's evidence, adduced from Mr Tedeschi consistently with what he said when participating in the video re-enactment, was that he was able to see legs illuminated in the Mitrolux light, and further that when he had directed the light "on the legs" he heard someone behind him say "that's her. That's the clothing she was wearing".
His evidence was to a similar effect. He said: Q. What were you able to see at that point using the Mitrolux? A. At that point, I could see some discolouration against a rock that I thought was just out of place at that time. I couldn't identify what it fully was. Q. So, what did you do? A. Well, I was still on the seaside of the safety fence and I returned and handed the light back over the fence and then I moved about 20 metres to the north. It was fairly precarious along there, and it was quite wet and slippery and it's only very narrow, it's about three feet wide, so I had to sort of use the safety fence as a guide to stop myself going over. I moved up to a point where there's - in the corner of the rock, 15, maybe 15 metres north, and I got the light back over the fence and I started to sweep again, and I came back to the same location, and I again saw what I then believe was a regular shape out of context with the rocks and the colours against the rock that I was looking at. Q. What was it that you were able to see? A. Well, I saw two - weill saw one sort of white-type object that seemed to be like a square, only a small square, it wasn't very large, and it seemed to have something that was either cream, or an object coming off the white object at right angles. And I couldn't fully identify exactly what it was at that stage, but I thought that it appeared to look like possibly a leg. Q. And what did the white appear to be? A. At that stage, I wasn't quite sure. But when I was forming the opinion in my mind, I thought it could have been a shoe of some sort. Q. So you saw at the time what you thought could have been a shoe and a leg? A. Yes, sir. Q. Now, when you set up the Mitrolux light in the second position which gave you a better view of this discolouration which you thought could have been a shoe and a leg, when you had been able to set it up and see this discolouration, did somebody say something behind you? A. Yes, they did, sir. Some comment was passed behind me. I can't remember exactly what it was. I didn't respond to whoever spoke. Q. Was it male or female? A. I believe it was a male person. Q. And what did that person say? A. I think it was, "They're the clothes that she - that's her. That's the clothes she was wearing", or similar to that. Q. "That's her, that's the clothes she was wearing". Could you see any clothes at all? A. The only clothing that I could see was where I believe there was a leg that you could see what - a cream area and then what appeared to be a black area. [851]
Mr Tedeschi was invited in cross-examination to confirm that was his understanding of Sgt Powderly's evidence and his narrative accompanying the video re-enactment. When he was invited by Mr McClintock to concede there was an inconsistency between Sgt Powderly's evidence and his submission to the jury about Sgt Powderly's evidence, he thought the inconsistency was "very minor".
It is the plaintiff's submission that this is not a minor inconsistency. In the plaintiff's submission there was no evidence to support Mr Tedeschi's submission to the jury that the plaintiff claimed "he had identified Ms Byrne by her clothing when the police hadn't seen a thing". The plaintiff submitted that the submission was a significant and deliberate misstatement made to enable Mr Tedeschi to make the "killer point" submission which the plaintiff submitted was not a submission that would otherwise have been open to him. The plaintiff submitted: This dishonesty takes on a particular importance other [sic] in relation to the element of malice. Mr Tedeschi needed to prove that the plaintiff was present at the Gap. Mr Tedeschi knew that the identification evidence he relied upon had significant admissibility and reliability issues. He needed to present other circumstantial evidence to save his case. The failure to fairly and honestly present the evidence from Sgt Powderly and Sgt Gale is an admission by conduct that he could not honestly prove that the plaintiff was with Ms Byrne when she left the cliff, and establishes subjective lack of reasonable and probable cause. [852]
Mr Tedeschi gave evidence that when he attributed to Sgt Powderly that "he hadn't seen a thing", he was limiting the submission to Sgt Powderly having not seen any clothing. I invited Mr Tedeschi to read again the transcript of his closing submission and asked him the following questions: Q. Read the balance, if you would, of that paragraph out loud. A. Yes. "Sergeant Powderly hadn't seen a thing. He had to bring the Mitrolux back to be able to actually see what was just a discolouration at that time but later on turned out to be Caroline's body." Q. Aren't you there suggesting that the plaintiff nominated that Caroline Byrne's body was there and that she was wearing particular clothing at a time when Sergeant Powderly hadn't seen a thing? A. Hadn't seen her clothing, your Honour. That - if - if your Honour looks at-- Q. Is that what you're meaning to convey? A. And if your Honour looks at what I then go on to say, when the accused spoke to Constable Woods at the police station, he said that he knew that it was Caroline because he knew what clothing she had. Q. Yes, I understand that there is-- A. So I'm - I was-- Q. I understand that there is other evidence in other ways as to this issue, but so far as what you then are suggesting to the jury, on one reading of it, and that's all I can say, an available reading of it, one that immediately strikes me, if I might say, is that the accused, as he then was, was saying that he could see Caroline's body and the clothing she was wearing at a time before Powderly had brought the Mitrolux light back to be able to see what he simply saw as a discolouration, that's as I read it. A. Your Honour, if you go to the beginning of that submission at line 33, I say: "So we then come to the next point, ladies and gentlemen, which is this. That by some extraordinary means, the accused knew exactly what clothing Caroline was wearing. He demonstrated that a number of times at the scene of The Gap and then later on at the police station." [853]
Mr McClintock resumed his cross-examination and put the following: Q. It would of course be quite false to suggest to the jury that my client said what he said before Sergeant Powderly had identified in the light the legs, that would be quite false, wouldn't it? A. That's correct. Q. That's exactly what you suggested, isn't it? A. No, it's not. What I was suggesting was that at a time when Sergeant Powderly could not see any clothing at all, that your client claimed that that was the clothing that she was wearing, and he thereby demonstrated a knowledge of what she'd been wearing which he couldn't possibly have got other than by having been with her that night at Watsons Bay. Q. The answer you've just given is a direct lie, I wish to suggest to you. Do you agree with me or not? A. I disagree. Q. In fact, the proposition you put to the jury through lines 38 through to 44 [extracted at [1324] above] was false to your knowledge, wasn't it? A. That's not correct. Q. Let's just look at what you say. Ms Byrne, when she was found, was wearing black tights, wasn't she? A. Yes, I believe so. Q. If there was a Mitrolux light on her legs, it would have been easily possible in the circumstances to recognise that she was wearing black tights, wouldn't it? A. I don't know. Q. You don't know. A. I wasn't there. It was quite a considerable distance. There was still a lot of sea mist. I don't know whether you would have been able to see the black tights with the Microlux - Mitrolux light or not. At the time that your client claimed to be able to see the clothing, Sergeant Powderly hadn't seen anything like that. Q. Just look at the words, if you would, that her Honour asked you to read out again. "He" - that is Sergeant Powderly - "had to bring the Mitrolux back to be able to actually see what was just a discolouration at that time but later turned out to be Caroline Byrne's body." A. Yep. Q. Do you say that you were being accurate and truthful when you said that to the jury? A. Yes, because if you go back to Sergeant Powderly's evidence, all that he claimed to be able to see, apart from some shoes and - and - and a leg, was a discolouration in terms of clothing. All he was able to describe was a discolouration. He wasn't able to describe it any more than that. Q. You see, I've put to you that those lines were false when you put them to the jury. I want to also put to you-- A. Well, can I answer that question first? Q. Please. I'll put it to you specifically again. When you used the words, "At that stage Sergeant Powderly hadn't seen a thing," you knew it was false. A. I think it's quite clear what I meant in that submission. Q. You don't consider whether you were playing just a bit fast and loose with a crucial piece of evidence? A. I don't. It was one small part of a lengthy submission to the jury that - that - that your client's explanation of how he'd come to be at The Gap was a concoction. That your client's account of how he had come to see her body at the base of The Gap was a concoction. That he had been searching for her for hours was a concoction. That he had woken up at home at 12.40pm and then gone looking for her was a complete concoction and also part of the submission was that he had deliberately gone and rung Caroline Byrne's father and brother and brought them to The Gap at a time when he claimed that he was very worried that she might be sitting around at The Gap contemplating suicide. He spent about an hour picking them up to bring them to The Gap and the Crown case was that he wanted to attempt to convince them that she had committed suicide so that they would then go to the police station together and be able to convince the police that she had committed suicide. So it was all part of a lengthy, complex circumstantial case that your client had in fact given a completely false account of his movements that night and that in reality he had disclosed information that he could only have known because he was with her when she went over The Gap. Q. Have you finished your answer? A. I have. Q. You answered what you say were my client's concoctions with a concoction of your own, didn't you? That is, that Sergeant Powderly, at the time in question, hadn't seen a thing? That was a concoction on your part, wasn't it? A. What I was attempting to convey to the jury and what I think I would have succeeded in conveying to the jury was that at the time that your client claimed to be able to see what clothing she was wearing, Sergeant Powderly couldn't see any clothing. [854]
In the defendant's submission, I would not discount Mr Tedeschi's explanation for his submission to the jury as unreasonable, and even less so find that he told a deliberate lie to conceal what he knew at the time he advanced the submission that he was deliberately misstating the evidence. I accept that submission. In the result, taking into account the competing submissions of the parties, I am not persuaded that the "killer point", so-called, was not a submission sufficiently grounded in the evidence to allow Mr Tedeschi to advance it for the consideration of the jury or that, in doing so, he deliberately misstated any aspect of the evidence.

[146]

Conclusions on the issue of malice

In the result, I am satisfied that Mr Tedeschi failed to make an informed assessment of A/Prof Cross's credibility and reliability and that he failed to adduce his evidence as an expert witness consistently with his obligations as a Crown Prosecutor. I am also satisfied that he changed the Crown case to accommodate the revealed flaws in the Crown case theory which was based on A/Prof Cross's evidence. In circumstances where I am not persuaded that he knew of the flaws in the Crown case theory that the plaintiff spear threw Ms Byrne to her death, and that he was determined to prosecute him for murder notwithstanding by deliberately manipulating the evidence to conceal those flaws, as I said earlier, I would need to consider other explanations for his failure to comply with his prosecutorial obligations.
Those competing explanations or hypotheses for Mr Tedeschi's proven misconduct include that it was or might have been incompetence or a gross state of carelessness that led him to conduct the prosecution as he did. However, given Mr Tedeschi's seniority and experience as the Senior Crown Prosecutor of New South Wales at the time of the trial, neither carelessness nor inadvertence, and even less incompetence, presents as a credible explanation. It does not follow, however, that the only possible remaining explanation for taking that approach and for advancing the submissions on motive without a sufficient basis in the evidence for doing so, inclusive of the approach he took to advancing the Crown case that the plaintiff was with Ms Byrne at Watsons Bay on 7 June 1995 by reference to Mr Doherty's evidence, and the allied submission as to what they must have been fighting about at the gym, is that he was straining for a conviction by improper means.
Another explanation may be that Mr Tedeschi honestly believed (albeit wrongly) that he was entitled to advance the submissions the plaintiff has identified and I have found as being without evidential foundation, the submission on motive being the most egregious. It may be that he honestly believed that his rendition of the evidence in support of those submissions was open to him in seeking to persuade the jury of the plaintiff's guilt, consistently with the Bar Rules and the Director's Guidelines.
I would also need to consider whether another possible explanation for the multiple examples of what I am satisfied were instances of prosecutorial misconduct, might be what resonated in the text and tenor of Mr Tedeschi's evidence in these proceedings. In summary, Mr Tedeschi's evidence was that from the time he advised Mr Cowdery that the plaintiff should be prosecuted for Ms Byrne's murder in February 2006, through to verdict on that charge in August 2008, he held an unerring belief in the probative value of the body of circumstantial evidence available to him as a prosecutor to prove the plaintiff's guilt beyond reasonable doubt; a belief that he continued to hold at the time he gave evidence in these proceedings in May 2017. He also gave evidence that save only for accepting (albeit, in my view, begrudgingly) that he was wrong to pose "the 50 Questions" for the jury, he believed then and continues to believe now that he was justified, indeed obliged, to advocate for a guilty verdict in the way he conducted the trial on behalf of the Crown, including in the style and content of his closing submissions and his unqualified reliance on the evidence of A/Prof Cross to prove that Ms Byrne's death was the result of murder at the plaintiff's hand.
The risk that a fixed view about the capacity of the available evidence, and the inferences it may support to establish the guilt of a person, might blind a prosecutor to his or her own failings of judgment as to how far to urge a jury to find guilt proved is obvious. It is equally obvious that a fixed attitude of that order might obscure deficiencies in the capacity of the evidence to prove guilt to the criminal standard. In discharging the high standards of fairness, objectivity and detachment by which a prosecutor is bound, a conscientious and self-reflective prosecutor is expected to modify any inclination to hold dogmatic views about the guilt of an accused and about the perceived strength of the Crown case in proof of guilt, in order to avert those risks. Those same expectations might, however, be displaced where a prosecutor has shown themselves to be arrogant or, as Mr Tedeschi's attitude in this case reveals, egoistic and defiant in the face of any challenge to the way he prosecuted the plaintiff, including adverse findings by the Court of Criminal Appeal.
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.
I am left in no doubt that it was Mr Tedeschi's unerring belief in the rectitude of his own intellectual processes and prowess which dominated his decision to initiate and maintain the criminal prosecution of the plaintiff. I am also left in no doubt that those same attitudes underpin his refusal to accept, even now, that he was not entitled to prosecute the plaintiff in the way he did, including his refusal to even concede the risk that he may have been wrong to take the approach he took, preferring instead to take refuge in the trial judge's somewhat permissive approach to the Crown case on motive (by way of example) or Mr Terracini's failure to object to his prosecutorial excesses (by way of further example, in the way Mr Tedeschi addressed Mr Doherty's evidence).
In my assessment, the fact that Mr Tedeschi continues to hold to those beliefs is not evidence of malice but powerful evidence of either a profound lack of insight into the errors in his approach to discharging his prosecutorial obligations at the plaintiff's trial or a stubborn refusal to acknowledge his professional failings in doing so or both, coupled with a compulsion (even under oath) to continue to refuse to acknowledge them in order to defend himself against criticism of any kind.
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.
In concluding that the plaintiff has failed to prove that he was prosecuted maliciously, I have taken into account that Mr Tedeschi denied any deliberate attempt to skew the evidence or to overstate its effect as put to him repeatedly by Mr McClintock in cross-examination. Put another way, in circumstances where Mr Tedeschi has maintained the belief that his approach as a prosecutor was consonant with his ethical obligations, I would need to be satisfied that the probabilities are that he was being deliberately dishonest in asserting that belief, or that the evidence he gave in defence of his conduct so wholly untenable that I must reject it and infer that malice has been proved by inference from his proven conduct as a result, and to reach that finding to a high level of satisfaction. Even when presented with what I consider to be glaring examples of his misstatement of some aspects of the evidence in his closing submissions, Mr Tedeschi's explanation was to attribute this to a misunderstanding of the evidence (the carpark issue), or to inadvertence in making submissions about it (the calls placed by Ms Byrne on 6 June 1995), or to a restated belief in his right to put the submission (his justification for attributing to Mr Doherty the fact that the woman he saw on the street was "sobbing", being one example, and the "green Bentley issue" another, and the Crown case on motive yet another). In order to be satisfied that Mr Tedeschi's evidence in these proceedings exposes that his dominant purpose in prosecuting the plaintiff was malicious in the legal sense, I would need to be satisfied to a high level of confidence that he either gave deliberately dishonest evidence under cross-examination in order to conceal the fact that he knew at the time of the trial that the way he was conducting the proceedings as Crown Prosecutor was contrary to the standards of propriety by which he was bound (because he was self-consciously striving for a conviction at all costs), or that his evidence in these proceedings was so wholly untenable as to be unworthy of any credit, that his explanation should be disregarded, or given no weight for that reason.
Although I have found some of Mr Tedeschi's explanations for his conduct as a prosecutor highly questionable, and some of the explanations he gave for his decisions about the evidence which was to be called, and then the way it was adduced and ultimately used in the submissions he made to the jury, also questionable and in some respects disingenuous, I am unable to find, to the standard required for proof of the element of malice, that he gave deliberately dishonest evidence in these proceedings when seeking to maintain his right to prosecute the plaintiff as he did. In short, while I regard his evidence in these proceedings in continuing to justify what he did as the Crown Prosecutor at the plaintiff's trial as unacceptable in many respects, I have concluded that his evidence and his presentation as a witness in these proceedings does not demonstrate that he was dishonestly concealing that he had deliberately made the decision to prosecute the plaintiff at all costs and to impermissibly strain for a conviction for a purpose unrelated to the purposes of the criminal law but that he is unable or unwilling to reflect upon the revealed errors in his approach, or to accept and acknowledge that he has been revealed to have breached his obligations as a prosecutor.
Whatever else Mr Tedeschi's attitude to the prosecution of the plaintiff may reveal about his competence as a barrister or his capacity generally to abide by the Bar Rules, I am not persuaded that his persisting lack of insight into the flawed approach he took to the prosecution of the plaintiff, or his lack of insight into the fact that those flaws were ultimately productive of gross unfairness in the plaintiff's trial, is sufficient to prove that at the time he initiated and maintained the prosecution he did so for a sole or dominant purpose ulterior to the processes and purposes of the criminal law.
Despite what I am well satisfied are demonstrable failures of Mr Tedeschi's forensic judgment and his persisting lack of insight into their impact on the course of the trial, and despite holding grave suspicions that some of Mr Tedeschi's closing submissions to the jury might have been a deliberate attempt by him to unfairly influence the jury, or even to deliberately prejudice the plaintiff by the patently and grossly improper technique of utilising smear, innuendo or speculation, I am not persuaded that such suspicions as I do hold provide a sufficient basis upon which to find the element of malice proved to the applicable standard.
That being the case, it follows that the plaintiff has failed to establish that Mr Tedeschi prosecuted him maliciously for Ms Byrne's murder, although I am satisfied Mr Tedeschi prosecuted him without reasonable and probable cause.

[148]

Endnotes

Queensland v Commonwealth of Australia (1977) 139 CLR 585
Court book p 5082.
Court book p 3592.
Court book p 3592.
Court book p 2357; Statement of Sgt Mark Powderly dated 13 June 1996 p 2.
Court book pp 2359 - 2360; Statement of Sgt Mark Powderly dated 13 June 1996 pp 2 - 3.
Exhibit AA.
Court book pp 2361 - 2369.
Court book p 2362.
Court book p 2362.
Court book pp 2363 - 2364.
Court book p 2364.
Court book p 2364.
Court book p 2365.
Court book p 2366.
Court book p 2365.
Court book p 2366
Court book p 2366.
Court book p 2367.
Court book pp 2367 - 2368.
Court book p 2368.
Court book p 2368.
Court book p 2368.
Transcript of proceedings T1097.05 - 1099.11.
Transcript of proceedings T839.33.
Plaintiff's written submissions dated 17 April 2017 par 21.
Plaintiff's written submissions dated 17 April 2017 par 23.
Plaintiff's written submissions dated 17 April 2017 A1.
Transcript of proceedings T450.36 - 40.
Exhibit 108(1); Court book pp 14369 - 14370.
Exhibit 108(1); Court book pp 5386 - 5387.
Exhibit 108(1); Court book p 15022.
Court book p 13236; Exhibit 77 (Extracts from A/Prof Cross's book "Evidence for Murder: How Physics Convicted a Killer") p 29.
Transcript of proceedings T521.46 - 49.
Court book p 15040.
Exhibit 108(1); Court book p 14735.
Exhibit 108(1); Court book p 14735.
Exhibit 108(1); Court book p 14736.
Exhibit 108(1); Court book p 14736.
Exhibit 108(1); Court book p 14737.
Exhibit 108(1); Court book p 14737.
Exhibit 108(1); Court book p 14738.
Exhibit 108(1); Court book p 14738.
Exhibit 108(1); Court book p 14738.
Exhibit 108(1); Court book p 14738.
Exhibit 108(1); Court book p 14739.
Exhibit 108(1); Court book p 5384.
Exhibit 108(1); Court book p 15034.
Exhibit 108(1); Court book p 5387.
Exhibit 108(1); Court book p 14742.
Exhibit 108(1); Court book p 14742.
Exhibit 108(1); Court book p 14743.
Exhibit 108(1); Court book p 14743.
Exhibit 108(1); Court book p 14745.
Exhibit 108(1); Court book p 14745.
Exhibit 108(1); Court book p 14411.
Transcript of proceedings T465.35 - 466.05.
Court book p 463;Statement of Det Insp Jacob dated 28 September 2016 par 73.
Transcript of proceedings T676.10 - 676.37.
Exhibit 108(1); Court book p 15411.
Exhibit 108(1); Court book p 15040.
Exhibit 108(1); Court book pp 5408 - 5410.
Exhibit 108(1); Court book pp 5408.
Exhibit 108(1); Court book p 5408.
Exhibit 108(1); Court book pp 5409 - 5410.
Court book pp 461 - 462; Statement of Det Insp Jacob dated 28 September 2016 pars 60 - 70.
Exhibit 108(1); Court book p 14746.
Plaintiff's written submissions dated 17 April 2007 par 409.
Court book pp 6425 - 6451.
Exhibit 108(1); Court book pp 5397 - 5403
Transcript of proceedings T479.20 - 480.22.
Exhibit 108(1); Court book p 14752
Transcript of proceedings T485.3 - 486.8
Transcript of proceedings T485.03 - 486.08.
Exhibit 108(1); Court book pp 14755 - 14757.
Exhibit 108(1); Court book p 14755.
Exhibit 108(1); Court book p 18666.
Exhibit 108(1); Court book p 14766.
Exhibit 108(1); Court book p 15422.
Exhibit 108(1); Court book p 14764.
Exhibit 108(1); Court book p 14768.
Exhibit 108(1); Court book p 15422.
Exhibit 108(1); Court book p 14770.
Exhibit 108(1); Court book p 14768.
Exhibit 108(1); Court book p 14775.
Exhibit 108(1); Court book p 14777.
Exhibit 108(1); Court book p 15425.
Exhibit 108(1); Court book p 15426.
Exhibit 108(1); Court book p 14796.
Court book p 4779; Sufficiency of Evidence Report p 16.
Court book p 4776; Sufficiency of Evidence Report p 13.
Court book p 15428; Exhibit 108(1).
Court book p 14412; Exhibit 108(1).
Transcript of proceedings T725.13
Exhibit 108(1); Court book p 15174.
Court book pp 3565 - 3566.
Exhibit 108(1); Court book p 15428
Transcript of proceedings T520.38.
Transcript of proceedings T730.31
Transcript of proceedings T730.38 - 41.
Plaintiff's written submissions dated 17 April 2017 par 436.
Plaintiff's written submissions dated 17 April 2017 par 437.
Transcript of proceedings T625.28 - 627.46
Court book p 14174; Exhibit 108(1).
Exhibit 108(1); Court book p 14796 - 14797
Exhibit 108(1); Court book p 14796.
Exhibit 108(1); Court book p 14796.
Exhibit 108(1); Court book p 14797.
Exhibit 108(1); Court book p 14800.
Exhibit 108(1); Court book p 14800.
Exhibit 108(1); Court book p 14413.
Exhibit 108(1); Court book p 14413.
Exhibit 108(1); Court book p 14413.
Exhibit 108(1); Court book p 14805
Exhibit 108(1); Court book p 14805.
Exhibit 108(1); Court book p 15019.
Exhibit 108(1); Court book p 19947.
Exhibit 108(1); Court book p 15018.
Exhibit 108(1); Court book p 15019.
Exhibit 108(1); Court book p 15019.
Exhibit 108(1); Court book p 15019.
Court book p 5408; Statement of Rodney Cecil Cross 18 July 2016.
Exhibit 108(1); Court book p 14813.
Exhibit 108(1); Court book p 14813.
Exhibit 108(1); Court book p 15043.
Exhibit 108(1); Court book p 14814.
Exhibit 108(1); Court book p 14815.
Exhibit 108(1); Court book p 14449.
Exhibit 108(1); Court book p 14449.
Exhibit 108(1); Court book pp 14814 - 14818, 14448 - 14449, 14819 - 14821.
Exhibit 108(1); Court book p 14822.
Exhibit 108(1); Court book p 14833.
Exhibit 108(1); Court book p 19433.
Exhibit 108(1); Court book p 14734.
Exhibit 108(1); Court book p 14371.
Exhibit 108(1); Court book p 14840.
Exhibit 108(1); Court book p 5411.
Exhibit 108(1); Court book p 14846.
Exhibit 108(1); Court book p 14848.
Exhibit 108(1); Court book p 14848.
Exhibit 108(1); Court book p 14848.
Exhibit 108(1); Court book p 14848.
Exhibit 108(1); Court book p 14849.
Exhibit 108(1); Court book p 14851.
Exhibit 108(1); Court book p 14854.
Exhibit 108(1); Court book p 14854.
Exhibit 108(1); Court book p 14854.
Exhibit 108(1); Court book p 14856.
Exhibit 108(1); Court book p 18680.
Exhibit 108(1); Court book p 18680.
Exhibit 108(1); Court book p 18681.
Court book p 6475.
Exhibit 108(1); Court book p 6476.
Court book p 3565; Report of A/Prof Cross dated 19 November 2003.
Exhibit 108(1); Court book p 18680.
Court book p 3608; Report of A/Prof Cross dated 26 July 2004 p 10.
Transcript of proceedings T745.4 - 745.19
Transcript of proceedings T746.21
Exhibit 108(1); Court book p14862
Exhibit 108(1); Court book p 15046.
Exhibit 108(1); Court book p 15046.
Exhibit 108(1); Court book p 14863.
Exhibit 108(1); Court book p 14863.
Exhibit 108(1); Court book p 14865.
Exhibit 108(1); Court book p 14424.
Exhibit 108(1); Court book p 14868.
Exhibit 108(1); Court book p 14872.
Exhibit 108(1); Court book p 14873.
Exhibit 108(1); Court book p 14879
Exhibit 108(1); Court book p 14875
Exhibit 108(1); Court book p 14875.
Exhibit 108(1); Court book p 14875.
Exhibit 108(1); Court book p 14876
Court book p 6478.
Exhibit 108(1). Court book p 5788.
Exhibit 120.
Exhibit 120.
Exhibit 120.
Exhibit 120.
Exhibit 120.
Exhibit 120.
Exhibit 120.
Exhibit 120.
Exhibit 120.
Exhibit 124.
Exhibit 108(1); Court book p 18683.
Exhibit 108(1); Court book p 14894.
Exhibit 108(1); Court book p 14895.
Exhibit 108(1); Court book p 14897.
Exhibit 108(2); Court book pp 14407 - 14409.
Court book pp 3760 - 3764; Report of Prof Elliott dated 8 March 2005.
Exhibit 108(2); Court book p 3761
Exhibit 108(2); Court book p 3761
Exhibit 108(2); Court book p 3762
Exhibit 108(2); Court book p 3762.
Exhibit 108(2); Court book p 3763.
Exhibit 108(2); Court book p 3763
Exhibit 108(2); Court book p 3763.
Court book 3764.
Court book p 3768 - 3770.
Exhibit 108(2); Court book p 3770.
Court book p 3769.
Exhibit 108(2); Court book pp 5412, 5413.
Exhibit 108(2); Court book pp 5412, 5413.
Exhibit 108(1); Court book p14902.
Exhibit 126.
Exhibit 126.
Exhibit 108(1); Court book p 14903.
Court book pp 3850 - 3851; Statement of Stephen Duval 25 November 2004.
Court book p 14906.
Exhibit 128.
Exhibit 108(1); Court book p 14906.
Transcript of proceedings T607.18 - 608.07
Transcript of proceedings T814.36 - 815.43.
Exhibit 108(1); Court book p 14906.
Exhibit 108(1). Court book p 14913.
Exhibit 108(1). Court book p 14913.
Court book pp 6481 - 6493; Report of A/Prof Cross dated 17 February 2005.
Court book p 6486.
Court book p 3645; Report of A/Prof Cross dated 17 February 2005.
Court book p 3645.
Court book p 3645.
Exhibit 122.
Exhibit 108(2); Court book p 14929.
Exhibit 108(2); Court book p 14929.
Exhibit 108(2); Court book p 14930
Exhibit 108(2); Court book p 14930.
Exhibit 108(2); Court book p 14931.
Exhibit 108(2); Court book p 14931.
Exhibit 108(2); Court book p 14931.
Exhibit 108(2); Court book p 14932.
Exhibit 108(2); Court book p 14933
Exhibit 108(2); Court book p 14936
Exhibit 108(2); Court book p 14937.
Exhibit 108(2); Court book p 14937.
Exhibit 108(2); Court book p 14939.
Exhibit 108(2); Court book pp 14397 - 14398.
Exhibit 108(2); Court book p 14402
Exhibit 108(2); Court book p 14525
Exhibit 108(2); Court book p 14525.
Exhibit 108(2); Court book p 14941.
Exhibit 108(2); Court book p 14941.
Exhibit 108(2); Court book p 14942
Exhibit 108(2); Court book p 14942.
Exhibit 108(2); Court book p 14942.
Exhibit 108(2); Court book p 14943.
Exhibit 108(2); Court book p 14943.
Exhibit 108(2); Court book p 14943.
Exhibit 108(2); Court book p 14944.
Exhibit 108(2); Court book p 15074.
Exhibit 108(2); Court book p 5640.
Exhibit 108(2); Court book p 5640.
Exhibit 108(2); Court book p 14962.
Exhibit 108(2); Court book p 14962.
Exhibit 108(2); Court book p 5678
Court book pp 6523 - 6539.
Exhibit 108(2); Court book p 6523.
Exhibit 108(2); Court book p 6523.
Exhibit 108(2); Court book p 6526.
Exhibit 108(2); Court book p 6526.
Exhibit 108(2); Court book pp 6526 - 6528.
Exhibit 108(2); Court book p 6526.
Exhibit 108(2); Court book p 6526.
Exhibit 108(2); Court book p 6527.
Exhibit 108(2); Court book p 17344.
Exhibit 108(2); Court book p 17344.
Exhibit 108(2); Court book p 17350.
Exhibit 108(2); Court book p 17350.
Exhibit 108(2); Court book p 17350.
Exhibit 108(2); Court book p 17350.
Exhibit 108(2); Court book p 17350.
Court book p 6547; Report of A/Prof Cross dated 8 March 2006.
Exhibit 108(2); Court book pp 15141 - 15142.
Plaintiff written submissions dated 17 April 2007 par 461.
Plaintiff's written submissions dated 17 April 2017 par 463.
Plaintiff's written submissions dated 17 April 2017 par 462.
Exhibit J.
Exhibit J p 3.
Exhibit J p 4.
Exhibit J p 5.
Exhibit J pp 5 - 6.
Exhibit J p 13.
Exhibit J p 13.
Exhibit J p 13.
Court book pp 5370 - 5371.
Court book p 3034.
Court book p 3034 - 3035.
Court book p 3040.
Proceedings before Barr J T816 - T819.
Proceedings before Barr J T833.47.
Proceedings before Barr J T2955.29 - 2955.36.
Proceedings before Barr J, T2960.20 - 2960.28.
Proceedings before Barr J, T3237.32 - 3237.41.
Court book p 3040.
Proceedings before Barr J, T811.07 - 14.
Court book p 989; Statement of Sgt Craig Woods dated 12 July 1995.
Court book p 971; Statement of Sgt Craig Woods dated 19 August 1998.
Court book pp 971 - 985; Statement of Craig Andrew Woods dated 19 August 1998 pp 1 - 15.
Court book p 1601; Statement of Gordon Wood dated 12 June 1995 p 5.
Court book p 975; Statement of Craig Andrew Woods dated 19 August 1998 p 5.
Court book p 975; Statement of Craig Andrew Woods dated 19 August 1998 p 5.
Court book p 1701.
Court book p 4811; Sufficiency of Evidence Report p 48.
Proceedings before Barr J, T65.28 - T65.33.
Court book p 4864; Sufficiency of Evidence Report p 101.
Court book pp 4778 - 4779; Sufficiency of Evidence Report pp 15 - 16.
Court book pp 1767 - 1768; Statement of Dr Cindy Pan dated 7 July 1995.
Court book pp 1767 - 1768; Statement of Dr Cindy Pan dated 7 July 1995.
Court book p 4837; Sufficiency of Evidence Report p 74.
Statement of Sgt Craig Woods dated 19 August 1998 pp 11 - 12.
Record of Interview of Gordon Wood dated 14 June 1996.
Record of interview of Gordon Wood dated 14 June 1996 pp 71 - 72.
Interview of Gordon Wood dated 10 July 1995 p 3.
Interview of Gordon Wood dated 10 July 1995 p 2.
Transcript of coronial inquest T17.17 - 17.38.
Court book p 687; Record of interview of Rene Rivkin dated 4 August 2000.
Court book p 639.
Court book p 638.
Court book p 638.
Court book p 638.
Court book p 638.
Court book p 637.
Court book pp 2085 - 2090; Statement of John Bernard Doherty dated 9 April 1998.
Court book pp 2085 - 2090; Statement of John Bernard Doherty dated 9 April 1998.
Proceedings before Barr J, T3195.27.
Court book pp 17105 - 17110.
Court book pp 17102 - 17341.
Court book p 2662 - 2791; Gordon Wood ERISP dated 23 July 2001.
Court book p 4777; Sufficiency of Evidence Report p 14.
Proceedings before Barr J, T3157.11.
Proceedings before Barr J, T3157.09.
Proceedings before Barr J, T3157.09.
Court book p 5087; Sufficiency of Evidence Report p 323.
Proceedings before Barr J, T3249.210
Court book pp 11759 - 11760; Summing up by Barr J pp 12 - 13.
Proceedings before Barr J, T3146.26 - 3147.30.
Proceedings before Barr J, T3257.07 - 3257.51.
Court book p 17146.
Transcript of proceedings T756.38.
Transcript of proceedings T757.26 - 31.
Court book pp 17481 - 17482.
Court book p 17226.
Court book pp 17235 - 17236.
Court book p 17284.
Court book p 17287.
Court book p 17329.
Court book p 4838; Sufficiency of Evidence Report p 75.
Court book p 4838; Sufficiency of Evidence Report p 75; Statement of Anthony Byrne dated 30 October 1999 pp 4 - 5.
Court book p 4838; Sufficiency of Evidence Report p 75; Statement of June Marie Clifford dated 28 July 1999 p 2.
Court book p 4839; Sufficiency of Evidence Report p 76; Statement of Anthony Byrne dated 30 October 1999 pp 5 - 6.
Court book p 4839; Sufficiency of Evidence Report p 76; Statement of Anthony Byrne dated 30 October 1999 p 6; Statement of Gordon Wood dated 12 June 1995 p 1.
Court book p 4839; Sufficiency of Evidence Report p 76.
Court book p. 4839; Sufficiency of Evidence Report p 76; Statement of Anthony Byrne dated 30 October 1999 p 7.
Court book p. 4389; Sufficiency of Evidence Report p. 76; Statement of Anthony Byrne dated 30 October 1999 p 8.
Court book p. 4340; Sufficiency of Evidence Report p. 77.
Court book p. 4340, Sufficiency of Evidence Report p. 77.
Court book p. 4340; Sufficiency of Evidence Report p. 77.
Court book p. 4340; Sufficiency of Evidence Report p. 77.
Court book p. 4340; Sufficiency of Evidence Report p. 77.
Gordon Wood ERISP dated 14 June 1996, p. 4.
Court book p. 4840; Sufficiency of Evidence Report p. 77.
Court book p. 4841; Sufficiency of Evidence Report p. 78; Statement of Tony Byrne dated 30 October 1999, p. 13.
Court book p. 4841; Sufficiency of Evidence Report p. 78; Statement of Tony Byrne dated 30 October 1999, p. 15.
Court book p. 4841; Sufficiency of Evidence Report p. 78; Statement of Tony Byrne dated 30 October 1999 p. 16.
Court book p. 4832; Sufficiency of Evidence Report p. 69.
Court book p. 4842; Sufficiency of Evidence Report p. 79; Statement of Michelle Whelan dated 20 June 1996 pp. 2 - 3.
Court book p. 4842; Sufficiency of Evidence Report p. 79; Statement of Michelle Whelan dated 20 June 1996 pp 2 - 3.
Court book p. 4843; Sufficiency of Evidence Report p. 80; Statement of Tony Byrne dated 30 October 1999 p. 40.
Court book p. 4843; Sufficiency of Evidence Report p. 80; Statement of Tony Byrne dated 30 October 1999 p. 40.
Court book p. 4843; Sufficiency of Evidence Report p. 80.
Court book p. 4844; Sufficiency of Evidence Report p. 81; Statement of Tony Byrne dated 30 October 1995 p 44.
Court Book p. 4844; Sufficiency of Evidence Report p. 81; Statement of Carel Clifford dated 3 November 1999 pp 2 - 3.
Court Book p. 4844; Sufficiency of Evidence Report p. 81; Statement of June Clifford dated 28 July 1999 pp 4 - 5.
Court Book p. 4845; Sufficiency of Evidence Report p. 82; Statement of June Clifford dated 28 July 1999 p. 5.
Court Book p. 4845; Sufficiency of Evidence Report p. 82; Statement of June Clifford dated 28 July 1999 p. 5.
Court book p. 4845; Sufficiency of Evidence Report p. 82; Statement of June Clifford dated 28 July 1999 p. 5.
Court book p. 4845; Sufficiency of Evidence Report p. 82; Statement of Carel Clifford dated 3 November 1999 p. 4.
Court book p. 4958; Sufficiency of Evidence Report p. 195.
Court book p. 5085; Sufficiency of Evidence Report p. 321.
See, eg, Court book pp. 4778, 4780, 4823, 4835; Sufficiency of Evidence Report pp. 15, 17, 60, 72.
Wood v R [2012] NSWCCA 21, 295.
Wood v R [2012] NSWCCA 21, 305.
Court book p. 4845; Sufficiency of Evidence Report p. 82; Statement of Anthony Byrne dated 30 October 1999 p. 46 - 48.
Statement of Anthony Byrne dated 30 October 1999 p. 46.
Court book p. 4849; Sufficiency of Evidence Report p. 86; Statement of Hany Mohamed dated 28 May 1996 p. 2.
Court book p. 4869; Sufficiency of Evidence Report p. 106; Statement of Tony Byrne dated 30 October 1999 p. 49.
Court book p. 4847; Sufficiency of Evidence Report p. 84; Statement of Tony Byrne dated 30 October 1999 p. 50.
Court book p. 4847; Sufficiency of Evidence Report p. 84; Statement of Natalie McCamley dated 3 April 2000 p. 9.
Court book p. 4847; Sufficiency of Evidence Report p. 84.
Court book p. 4848; Sufficiency of Evidence Report p. 85; Statement of Tony Byrne dated 30 October 1999 p. 51.
Court book p. 4848; Sufficiency of Evidence Report p. 85; Statement of Tony Byrne dated 30 October 1999 p. 51.
Court book p. 4848; Sufficiency of Evidence Report p. 85; Statement of Dr Cindy Pan dated 7 July 1995; Statement of Dr Cindy Pan dated 31 May 1996.
Court book p. 4848; Sufficiency of Evidence Report p. 85; Statement of Tony Byrne dated 30 October 1999 p. 52 - 53..
Court book p. 4848; Sufficiency of Evidence Report p. 85; Statement of Tony Byrne dated 30 October 1999 p. 52 - 53..
Court book p. 4849; Sufficiency of Evidence Report p. 86; Statement of Carel Clifford dated 3 November 1999 p. 5.
Court book p. 4849; Sufficiency of Evidence Report p. 86; Statement of Carel Clifford dated 3 November 1999 p. 5.
Rene Rivkin ERISP dated 4 August 2000, p. 66 - 68.
Court book p. 4849; Sufficiency of Evidence Report p. 86; Statement of Hany Mohamed dated 28 May 1996.
Court book p. 4849; Sufficiency of Evidence Report p. 86; Statement of Hany Mohamed dated 28 May 1996.
Court book p. 4849; Sufficiency of Evidence Report p. 86.
Statement of Constable Craig Woods dated 12 July 1995 pp. 2 - 3.
Court book p. 4850; Sufficiency of Evidence Report p. 87; Statement of Gordon Charles Donald dated 23 May 1995 p. 3.
Court book p. 4850; Sufficiency of Evidence Report p. 87.
Court book p. 4850; Sufficiency of Evidence Report p. 87; Gordon Wood ERISP 10 July 1995 pp 9 - 10.
Court book p. 4850; Sufficiency of Evidence Report p. 87.
Court book p. 4850; Sufficiency of Evidence Report p. 87; Statement of Carel Clifford dated 3 November 1999 pp. 6 - 7.
Court book p. 337; ERISP Gordon Wood dated 10 July 1995 p. 10 - 11.
ERISP Gordon Wood dated 14 June 1996 p 13.
Court book p 4789; Sufficiency of Evidence Report p 26; Statement of Brett Cochrane dated 12 July 1995 p 1; Statement of Nicholas Samartis dated 12 July 1995 p 1.
Court book p 4902; Sufficiency of Evidence Report p 139.
Court book p 4789; Sufficiency of Evidence Report p 26.
Court book p 4789; Sufficiency of Evidence Report p 26.
Statement of Gordon Wood dated 12 June 1995 p 3.
Court book p 4852; Sufficiency of Evidence Report p 89; Statement of Graham Richardson dated 28 October 2003.
Court book p 4851; Sufficiency of Evidence Report p 88; Statement of Gordon Wood dated 12 June 1995 p 3.
Court book p 4851; Sufficiency of Evidence Report p 88; Statement of Lance Melbourne dated 24 March 1999 p 2; Statement of Craig Martin dated 26 March 1999 p 2.
Statement of Gordon Wood dated 12 June 1995 p 3.
Court book p 4852; Sufficiency of Evidence Report p 89.
Court book p 4852; Sufficiency of Evidence Report p 89; Statement of Lance Melbourne dated 24 March 1999 p 2.
Court book p 4791; Sufficiency of Evidence Report p 28.
Court book p 4852; Sufficiency of Evidence Report p 89; Statement of Constable Craig Woods dated 12 July 1995 pp 2 - 3.
Court book p 4791; Sufficiency of Evidence Report p 28.
Court book p 4791; Sufficiency of Evidence Report p 28.
Court book p 4853; Sufficiency of Evidence Report p 90; Statement of Peter Byrne dated 6 May 1996 p 3.
Court book p 4792; Sufficiency of Evidence Report p 29; Statement of Peter Byrne dated 6 May 1996 p 3; Statement of Tony Byrne dated 6 May 1996 p 3.
Court book p 4792; Sufficiency of Evidence Report p 29.
Court book p 4793; Sufficiency of Evidence Report p 30; Statement of Anthony Byrne dated 30 October 1999 p 75.
Court book p 4793; Sufficiency of Evidence Report p 30; Gordon Wood ERISP dated 23 July 2001 pp 75 - 76.
Court book p 4791; Sufficiency of Evidence Report p 28.
Court book p 4853; Sufficiency of Evidence Report p 90; Statement of Dr Cindy Pan dated 31 May 1996 p 2.
Court book p 4791; Sufficiency of Evidence Report p 28.
Court book p 4791; Sufficiency of Evidence Report p 28.
Court book p 4853; Sufficiency of Evidence Report p 90; ERISP Rene Rivkin dated 4 August 2000 pp 41 - 43; Record of Interview of George Freris dated 18 July 2001 p 6.
Court book p 4853; Sufficiency of Evidence Report p 90; Statement of Lance Melbourne dated 24 March 1999 p 8.
Court book p 1804; Statement of Craig William Martin dated 26 March 1999 p 5.
Court book p 1804; Statement of Craig William Martin dated 26 March 1999 p 5.
Court book p 5077; Sufficiency of Evidence report p 313.
Court book p 4791; Sufficiency of Evidence Report p 28; Statement of David Finlay dated 1 April 2003 (employee of Optus).
Court book p 4792; Sufficiency of Evidence Report p 29.
Court book p 4792; Sufficiency of Evidence Report p 29.
Court book p 4792; Sufficiency of Evidence Report p 29.
Court book p 4853; Sufficiency of Evidence Report p 90; Statement of Lance Melbourne dated 24 March 1999 p 7; Statement of Craig Martin dated 26 March 1999 p 5.
Court book p 4792; Sufficiency of Evidence Report p 90; Statement of Anthony Byrne dated 30 October 1999 p 5.
Court book p 4853; Sufficiency of Evidence Report p 90; Gordon Wood ERISP dated 12 June 1995, p 3.
Court book p 4855; Sufficiency of Evidence Report p 92; Gordon Wood ERISP dated 16 June 1996 pp 16 - 17.
Court book p 4955; Sufficiency of Evidence Report p 192.
Court book p 4854; Sufficiency of Evidence Report p 91; Statement of John Bernard Doherty dated 10 February 1999 p 5.
Court book p 4854; Sufficiency of Evidence Report p 91; Statement of John Bernard Doherty dated 10 February 1999 p 6.
Court book p 4793; Sufficiency of Evidence Report p 30.
Court book p 4854; Sufficiency of Evidence Report p 91; Statement of John Bernard Doherty dated 10 February 1999 p 7.
Court book p 4854; Sufficiency of Evidence Report p 91; Statement of John Bernard Doherty dated 10 February 1999 p 7.
Court book p 4854; Sufficiency of Evidence Report p 91; Statement of John Bernard Doherty dated 10 February 1999 p 7.
Court book p 4854; Sufficiency of Evidence Report p 91; Statement of Norman Edward Wano dated 2 March 1999 p 2; Statement of Domenico Brunetta dated 11 February 1999 p 2.
Court book p 4854; Sufficiency of Evidence Report p 91; Statement of Lance Melbourne dated 6 August 1996 p 3.
Court book p 4854; Sufficiency of Evidence Report p 91; Statement of John Bernard Doherty dated 10 February 1999 pp 7 - 8.
Court book p 4855; Sufficiency of Evidence Report p 92; Statement of Norman Edward Wano dated 2 March 1999 pp 2 - 3; Statement of Domenico Brunetta dated 11 February 1999 p 2.
Court book p 4855; Sufficiency of Evidence Report p 92; Statement of Norman Edward Wano dated 2 March 1999 p 3.
Court book p 4855; Sufficiency of Evidence Report p 92; Statement of Norman Edward Wano dated 2 March 1999 p 3.
Court book p 4855; Sufficiency of Evidence Report p 92; Statement of Norman Edward Wano dated 2 March 1999 p 3.
Court book p 4855; Sufficiency of Evidence Report p 92; Statement of Domenico Brunetta dated 11 February 1999 p 3.
Court book p 4855; Sufficiency of Evidence Report p 92; Statement of Domenico Brunetta dated 11 February 1999 p 3.
Court book p 2122; Statement of Domenico Brunetta dated 11 February 1999 p 2.
See, eg, Statement of Gordon Wood dated 12 June 1995; ERISP Gordon Wood dated 14 June 1996; ERISP Gordon Wood dated 23 July 2001; "Witness" program interview with Gordon Wood dated 4 March 1998.
Court book p 4794; Sufficiency of Evidence Report p 31.
Court book p 4855; Sufficiency of Evidence Report p 92; Statement of Domenico Brunetta dated 11 February 1999 p 3.
Court book p 4855; Sufficiency of Evidence Report p 92; Statement of Domenico Brunetta dated 11 February 1999 p 3.
Court book p 4855; Sufficiency of Evidence Report p 92; Statement of Anthony Byrne dated 30 October 1999 p 56; Record of Interview of Peter Byrne dated 20 May 1999 pp 8-9
Court book p 4856; Sufficiency of Evidence Report p 93.
Court book pp 4791; Sufficiency of Evidence Report p 28.
Court book p 4794; Sufficiency of Evidence Report p 31.
Court book p 4795; Sufficiency of Evidence Report p 32.
Court book p 4795; Sufficiency of Evidence Report p 32.
Court book pp 4795 - 4797; Sufficiency of Evidence Report pp 32 - 34.
Court book p 4797; Sufficiency of Evidence Report p 34.
Court book p 4798; Sufficiency of Evidence Report p 35.
Court book p 4800; Sufficiency of Evidence Report p 37.
Court book p 4801; Sufficiency of Evidence Report p 38.
Court book p 4803; Sufficiency of Evidence Report p 40.
Court book p 4803; Sufficiency of Evidence Report p 40.
Proceedings before Barr J, T3157.09.
Court book p 4786; Sufficiency of Evidence Report p 23.
Court book p 4786; Sufficiency of Evidence Report p 23.
Court book p 4786; Sufficiency of Evidence Report p 23; Statement of Lance Melbourne dated 6 August 1996 p 2.
Court book p 4787; Sufficiency of Evidence Report p 24.
Court book p 1845.
Court book p 1845.
Court book p 1845.
Court book p 1814.
Court book p 1815.
Court book p 1846.
Court book p 284.
Court book pp 284 - 285.
Court book pp 992 - 993.
Court Book p 1833; Statement of Lance George Melbourne dated 24 March 1999 pp 5 - 6.
Court Book pp 1802 - 1804; Statement of Craig William Martin dated 26 March 1999 pp 3 - 5.
Court book p 4896; Sufficiency of Evidence Report p 133.
Court book p 4896; Sufficiency of Evidence Report p 133.
Court book p 4790; Sufficiency of Evidence Report p 27.
Court book p 4790; Sufficiency of Evidence Report p 27.
Court book p 4790; Sufficiency of Evidence Report p 27.
Court book p 4790; Sufficiency of Evidence Report p 27.
Court book p 2089; Statement of John Bernard Doherty dated 9 April 1998
Court book p 2085; Statement of John Bernard Doherty dated 9 April 1998
Court book p 2086; Statement of John Bernard Doherty dated 9 April 1998
Court book p 2086; Statement of John Bernard Doherty dated 9 April 1998
Court book p 2086; Statement of John Bernard Doherty dated 9 April 1998
Court book p 2086; Statement of John Bernard Doherty dated 9 April 1998
Court book p 2086; Statement of John Bernard Doherty dated 9 April 1998
Court book p 2087; Statement of John Bernard Doherty dated 9 April 1998
Court book p 2087; Statement of John Bernard Doherty dated 9 April 1998 p 6.
Court book p 2076; Statement of John Bernard Doherty dated 10 February 1999 p 2.
Court book p 2077; Statement of John Bernard Doherty dated 10 February 1999 p 3.
Court book pp 2077 - 2078; Statement of John Bernard Doherty dated 9 April 1998 pp 3 - 4.
Court book p 7967.
Court book p 2092; Statement of John Doherty dated 9 November 2004.
Court book p 4895; Sufficiency of Evidence Report p 132.
Court book pp 4895 - 4900; Sufficiency of Evidence Report pp 132 - 137.
Court book p 4793; Sufficiency of Evidence Report p 30.
Court book p 4794; Sufficiency of Evidence Report p 31.
Court book p 4794; Sufficiency of Evidence Report p 31.
Court book p 4794; Sufficiency of Evidence Report p 31.
Court book pp 4794 - 4795; Sufficiency of Evidence Report pp 31 - 32.
Court book p 4795; Sufficiency of Evidence Report p 32.
Statement of Brenda Wood dated 2 August 2001 p 16; Statement of Michelle Wood dated 7 August 2001 p 7.
Proceedings before Barr J, T2134.34.
Gordon Wood ERISP dated 4 June 1996 p 31.
Court book p 4795; Sufficiency of Evidence Report p 32.
Court book p 4800; Sufficiency of Evidence Report p 37.
Court book p 4797; Sufficiency of Evidence Report p 34.
Court book p 4800; Sufficiency of Evidence Report p 37.
Court book p 4801; Sufficiency of Evidence Report p 38;
Court book p 4801; Sufficiency of Evidence Report p 38; Statement of Anthony Byrne dated 30 October 1999 p 59.
See generally Court book pp 4797 - 4798; Sufficiency of Evidence Report pp 34 - 35.
Statement of Peter Byrne dated 2 May 1996 p 4.
Gordon Wood ERISP dated 14 June 1996 p 44.
Statement of Kylie Watson dated 17 May 1996 p 4.
See generally Court book p 4798; Sufficiency of Evidence Report p 35.
Court book p 4798; Sufficiency of Evidence Report p 35; Gordon Wood ERISP dated 14 June 1996 p 44.
Court book p 4798; Sufficiency of Evidence Report p 35; "Witness" Program Interview dated 4 March 1998 p 18.
Court book p 4798; Sufficiency of Evidence Report p 35; Statement of Jo Puccini provided for the purpose of the "Witness" Program dated 21 July 2000 p 7.
Court book p 4798; Sufficiency of Evidence Report p 35.
See generally Court book p 4799; Sufficiency of Evidence Report p 36.
Court book p 4799; Sufficiency of Evidence Report p 36; Statement of Gordon Wood dated 12 June 1995 p 2.
Court book p 4799; Sufficiency of Evidence Report p 36; Gordon Wood ERISP dated 14 June 1996 p 18.
Court book p 4799; Sufficiency of Evidence Report p 36; Gordon Wood ERISP dated 14 June 1996 p 21.
Court book p 4799; Sufficiency of Evidence Report p 36; Proceedings at Coronial inquest dated 11 March 1998 p 18.
Gordon Wood ERISP dated 23 July 2001 p 62.
Gordon Wood ERISP dated 23 July 2001 p 62.
Gordon Wood ERISP dated 23 July 2001 p 73.
Court book p 4799; Sufficiency of Evidence Report p 36.
Court book p 4800; Sufficiency of Evidence Report p 37.
Court book p 4801; Sufficiency of Evidence Report p 38.
Court book p 4802; Sufficiency of Evidence Report p 39
Court book p 4802; Sufficiency of Evidence Report p 39.
Court book p 4875; Sufficiency of Evidence Report p 112.
Court book p 4802; Sufficiency of Evidence Report p 39; Statement of Snr Cst Craig Woods dated 19 August 1998 p 12.
Court book p 4803; Sufficiency of Evidence Report p 40.
Court book p 4809; Sufficiency of Evidence Report p 46.
Court book p 4856; Sufficiency of Evidence Report p 93; Statement of Norman Edward Wano dated 3 March 1999 pp 3 - 4; Statement of Domenico Brunetta dated 11 February 1999 pp 3 - 5.
Court book p 4803; Sufficiency of Evidence Report p 40; Statement of Peter Byrne dated 20 May 1999 p 18.
Court book p 4803; Sufficiency of Evidence Report p 40; Statement of Peter Byrne dated 20 May 1999 p 18.
Court book p 4804; Sufficiency of Evidence Report p 41; Statement of Peter Byrne dated 2 May 1996 p 4.
Court book p 4803; Sufficiency of Evidence Report p 40; Record of interview of Peter Byrne dated 20 May 1999 p 18.
Court book p 4805; Sufficiency of Evidence Report p 43; Statement of Peter Byrne dated 2 May 1996 pp 3 - 4.
Court book p 4806; Sufficiency of Evidence Report p 44.
Court book p 4804; Sufficiency of Evidence Report p 41; Gordon Wood ERISP dated 14 June 1996 p 22.
Court book p 4805; Sufficiency of Evidence Report p 42.
Court book p 4805; Sufficiency of Evidence Report p 42.
Court book p 4805; Sufficiency of Evidence Report p 42.
Court book p 4805; Sufficiency of Evidence Report p 42; Statement of Trevor George Cracknell dated 27 November 1998.
Court book pp 4806 - 4807; Sufficiency of Evidence Report pp 43 - 44.
Court book p 4807; Sufficiency of Evidence Report p 44; Statement of Cst Griffiths dated 27 October 1998 p 2.
Court book p 4807; Sufficiency of Evidence Report p 44; Statement of Cst Griffiths dated 27 October 1998 p 2.
Court book p 4807; Sufficiency of Evidence Report p 44; Statement of Anthony Byrne dated 30 October 1999 p 24.
Court book pp 4807 - 4808; Sufficiency of Evidence Report pp 44 - 45; Statement of Anthony Byrne dated 30 October 1999 p 68.
Court book pp 4807 - 4808; Sufficiency of Evidence Report pp 44 - 45; Statement of Anthony Byrne dated 30 October 1999 p 68.
Court book pp 4807 - 4808; Sufficiency of Evidence Report pp 44 - 45; Statement of Anthony Byrne dated 30 October 1999 p 69.
Court book p 4808; Sufficiency of Evidence Report p 45; Statement of Michele Wood dated 7 August 2001 p 6.
Court book p 4808; Sufficiency of Evidence Report p 45.
Court book p 4809; Sufficiency of Evidence Report p 46.
Court book p 4809; Sufficiency of Evidence Report p 46; Record of Interview of Gordon Wood dated 10 July 1996 question 15.
Court book p 4809; Sufficiency of Evidence Report p 46.
Court book p 4779; Sufficiency of Evidence Report p 16.
Court book p 4821; Sufficiency of Evidence Report p 58.
Court book p 4821; Sufficiency of Evidence Report p 58; Statement of Dr Pan dated 31 May 1996 pp 1 - 2.
See, eg, Statement of Carel Clifford dated 3 November 1999 pp 2 - 3, 8 - 9; Statement of June Marie Clifford dated 28 July 1999 pp 4 - 5; Statement of Anthony Byrne dated 30 October 1999 p 45; Statement of Narelle Cook dated 5 August 1999 p 3; Statement of Jacqueline Field dated 6 August 1999 pp 2 - 3; Statement of Gabriella Paussi dated 3 October 2003 pp 3 - 4; Statement of Lisa Gail Fraser dated 4 April 2000 p 3.
Court book p 4822; Sufficiency of Evidence Report p 59.
Court book p 4822; Sufficiency of Evidence Report p 59; Report of Dr Alexandra Vrjosseck dated 20 December 1999 pp 1 - 2.
Court book p 4822; Sufficiency of Evidence Report p 59.
Court book 4823; Sufficiency of Evidence Report p 60.
Court book p 4848; Sufficiency of Evidence Report p 85.
Court book p 4836; Sufficiency of Evidence Report p 73; Report of Dr Neil Schultz dated 16 July 1996.
Court book p 4837; Sufficiency of Evidence Report p 74.
Court book p 4837; Sufficiency of Evidence Report p 74.
Court book pp 3042 - 3066.
Court book p 3054.
Court book p 3054.
Court book p 3048.
Court book p 3055.
Court book p 3055.
See generally court book p 3055.
See generally court book p 3066.
Court book p 3056.
Court book p 3056.
Court book p 3057.
Court book p 3057.
Court book pp 3057 - 3058.
Court book p 3061.
Court book p 3061.
Court book p 3066.
Transcript of proceedings before Barr J, T1001.30.
Transcript of proceedings before Barr J, T1002.16.
Transcript of proceedings before Barr J, T1003.11.
Transcript of proceedings before Barr J, T1005.01.
Transcript of proceedings before Barr J, T1005.04.
Transcript of proceedings before Barr J, T1003.35 - 1003.40.
Transcript of proceedings before Barr J, T1004.50.
Transcript of proceedings before Barr J, T1014.16.
Transcript of proceedings before Barr J, T1015.19 - 1015.20.
Transcript of proceedings before Barr J, T1016.47.
Transcript of proceedings before Barr J, T1017.13.
Transcript of proceedings before Barr J, T1019.27 - 1019.24.
Transcript of proceedings before Barr J T952.07 - 952.10.
Transcript of proceedings before Barr J, T952.17.
Transcript of proceedings before Barr J, T953.17.
Transcript of proceedings before Barr J, T954.01 - 954.02.
Transcript of proceedings before Barr J, T977.37.
Transcript of proceedings before Barr J, T952.35 - T952.36.
Transcript of proceedings before Barr J, T952.41.
Transcript of proceedings before Barr J T966.22 - 966.34.
Transcript of proceedings before Barr J T1457.30.
Transcript of proceedings before Barr J T1457.34 - 35.
Transcript of proceedings before Barr J T1458.11 - 16.
Transcript of proceedings before Barr J T1459.07 - 11.
Transcript of proceedings before Barr J T1459.15 - 16.
Transcript of proceedings before Barr J T1459.27 - 30.
Transcript of proceedings before Barr J T1462.35.
Transcript of proceedings before Barr J T1468.15.
Transcript of proceedings before Barr J T1468.26.
Court book p 2086; Statement of John Bernard Doherty dated 9 April 1998 p 2; Transcript of proceedings before Barr J T1468.37 - 48.
Transcript of proceedings before Barr J T1472.35.
Transcript of proceedings before Barr J T1470.37 - 43.
Transcript of proceedings before Barr J T1470.49 - 50.
Transcript of proceedings before Barr J T1471.06 - 07.
Transcript of proceedings before Barr J T1471.13 - 14.
Transcript of proceedings before Barr J T1473.25.
Transcript of proceedings before Barr J T1473.36.
Transcript of proceedings before Barr J T1473.28 - 40.
Transcript of proceedings before Barr J T1554.40.
Plaintiff's written submissions dated 17 April 2017 par 129.
Plaintiff's written submissions dated 17 April 2017 par 129.
Statement of Mark Tedeschi dated 13 October 2006 p 24.
Plaintiff's written submissions dated 17 April 2007 par 171.
Transcript of proceedings T1062.25 - 42.
Court book pp 11475 - 11480; Transcript of proceedings before Barr J T3191.15 - 3196.01.
Transcript of proceedings before Barr J T65.06 - 11.
Court book p 1848; Statement of Craig William Martin dated 6 August 1996 p 2.
Court book p 1817; Statement of Craig William Martin dated 6 August 1996 p 2.
Court book p 1900; Statement of Sandra Munro dated 28 March 2008 p 2.
Transcript of proceedings before Barr J T1221 - 1222.
Transcript of proceedings before Barr J T1222 - 1224.
Transcript of proceedings before Barr J T958.10 - 12.
Transcript of proceedings before Barr J T971 - 979.
Transcript of proceedings before Barr J T1013.03 - 04.
Transcript of proceedings before Barr J T3140.18 - 37.
Transcript of proceedings before Barr J T3196.03 - 05.
Statement of Mark Tedeschi dated 16 February 2017 par 9(d).
Statement of Mark Tedeschi dated 13 October 2016 par 28.
Transcript of proceedings T873.05.
Transcript of proceedings T853.05 - 07.
Transcript of proceedings T852.44 - 853.23.
Transcript of proceedings T856.19 - 857.43.
Transcript of proceedings T874.01 - 04.
Transcript of proceedings T874.35 - 875.27.
Transcript of proceedings T848.31 - 33.
Plaintiff's submissions dated 17 April 2007 par 279.
Plaintiff's written submissions dated 17 April 2007 par 279.
Plaintiff's written submissions dated 17 April 2007 par 281.
Plaintiff's written submissions dated 17 April 2007 par 281.
Transcript of proceedings before Barr J T99.23 - 27.
Transcript of proceedings before Barr J T100.08 - 100.15.
Transcript of proceedings before Barr J T100.23 - 24.
Transcript of proceedings before Barr J T189.45 - 192.13.
Court book p 2831.
Court book p 1581.
Court book p 1581.
Court book p 1581.
Transcript of proceedings T1068.26 - 2069.31.
Transcript of proceedings before Barr J T191.46.
Court book p 1590.
Transcript of proceedings before Barr J T3187.27 - 30.
Defendant's submissions dated 21 June 2017 par 260.
Plaintiff's submissions dated 17 April 2017 par 302-309.
Defendant's submissions dated 21 June 2017 par 265-270.
Statement of Mark Tedeschi dated 16 February 2017 par 37.
Court book p 6527; Report of A/Prof Cross dated 8 February 2006 p 5.
Transcript of proceedings before Barr J, T2573.40.
Transcript of proceedings T835.10 - 836.05.
Court book p 6527; Report of A/Prof Cross dated 8 February 2006 p 5.
Transcript of proceedings before Barr J T2419.38 - 2420.02.
Transcript of proceedings before Barr J T2420.10 - 16.
Transcript of proceedings T808.30 - 809.16.
Transcript of proceedings T809.34 - 812.04.
Transcript of proceedings before Barr J T89.08 - 09.
Transcript of proceedings before Barr J T89.09 - 18.
Transcript of proceedings before Barr J T3182.31 - 34.
Transcript of proceedings before Barr J T2491.44 - 2492.18.
Transcript of proceedings before Barr J 2524.20 - 46.
Transcript of proceedings before Barr J T2574.34 - 50.
Transcript of proceedings before Barr J T2718.14 - 20.
Transcript of proceedings T950.31 - T955.31.
Transcript of proceedings T606.41 - 607.43.
Transcript of proceedings T815.05 - 14.
Transcript of proceedings before Barr J T 3180.03 - 20.
Transcript of proceedings 946.32 - 946.42.
Transcript of proceedings 947.31 - 947.35.
Transcript of proceedings T948.16 - 948.43.
Transcript of proceedings before Barr J, T2428.11 - 37.
Transcript of proceedings before Barr J, T2717.11 - 13.
Transcript of proceedings before Barr J, T33.37 - 38.
See, eg, Transcript of proceedings before Barr J T87.20, 100.50.
See, eg, Transcript of proceedings before Barr J T33.34, 33.38.
Transcript of proceedings before Barr J T86.43 - 44.
Transcript of proceedings before Barr J T87.10 - 15.
Transcript of proceedings before Barr J T87.22 - 25.
Transcript of proceedings before Barr J T87.27 - 33.
Transcript of proceedings before Barr J T87.35 - 88.24.
Transcript of proceedings before Barr J T2432.21 - 2433.15.
Transcript of proceedings before Barr J T2431.16 - 35.
Transcript of proceedings before Barr J T2431.26 - 2432.19.
Transcript of proceedings before Barr J T3268.01 - 03.
Transcript of proceedings before Barr J T3268.40.
Transcript of proceedings before Barr J T1096.45 - 1097.15.
Transcript of proceedings before Barr J T3268.15 - 22.
Court book p 6486; Report of A/Prof Cross dated 17 February 2005.
Court book p 6486; Report of A/Prof Cross dated 17 February 2005.
Court book p 6486; Report of A/Prof Cross dated 17 February 2005.
Court book p 6547; Report of A/Prof Cross dated 8 March 2006.
Court book p 5414.
Court book p 13324.
Court book p 13324.
Transcript of proceedings T612.04.
Transcript of proceedings T612.19 - 23.
Court book p 14973.
Court book p 14973.
Transcript of proceedings T614.30 - 32.
Transcript of proceedings T611.18.
Transcript of proceedings T614.50 - 615.01.
Court book p 3739.
Court book p 17350.
Transcript of proceedings T620.27 - 29.
Transcript of proceedings T620.34 - 37.
Court book p 6547; Report of A/Prof Cross dated 8 March 2006.
Transcript of proceedings T623.05 - 623.43.
Transcript of proceedings before Barr J T3267.46 - 3268.41.
Transcript of proceedings T842.48 - 49.
Transcript of proceedings T843.01 - 843.30.
Transcript of proceedings T847.09.
Transcript of proceedings before Barr J T 3268.40 - 41.
Transcript of proceedings T935.24.
Transcript of proceedings T935.25 - 935.28.
Plaintiff's written submissions dated 17 April 2017 par 90.
Statement of Mark Tedeschi dated 16 February 2017 par 20(t).
Statement of Mark Tedeschi dated 16 February 2017 par 23(f).
Statement of Mark Tedeschi dated 16 February 2017 par 37.
Transcript of proceedings before Barr J T3257.34 - 45.
Transcript of proceedings before Barr J T3257.42.
Transcript of proceedings before Barr J T3277.21.
GDD v R [2010] NSWCCA 62 at [121]
Transcript of proceedings before Barr J T3177.45 - 47.
Transcript of proceedings before Barr J T3186.22 - 24.
Transcript of proceedings before Barr J T1048.08.
Transcript of proceedings T1047.28 - 1048.09.
Transcript of proceedings before Barr J, T1457.30
Transcript of proceedings before Barr J, T1458.11-16
Transcript of proceedings before Barr J, T1468.41 - 48; T1472.35
Transcript of proceedings before Barr J T57.15.
Transcript of proceedings before Barr J T3166.08.
Statement of Mark Tedeschi dated 16 February 2017 par 20(a) - (g).
Transcript of proceedings before Barr J T3168.39.
Transcript of proceedings before Barr J T3168.33.
Transcript of proceedings before Barr J T3158.20 - 3158.30.
Transcript of proceedings before Barr J T3159.12 - 14.
Transcript of proceedings before Barr J T3159.14 - 16.
Court book p 4652.
Transcript of proceedings before Barr J T1031.04 - 06.
Transcript of proceedings before Barr J T1030.19.
Transcript of proceedings before Barr J T1030.19 - 32.
Plaintiff's written submissions dated 17 April 2017 par 206.
Plaintiff's written submissions dated 17 April 2017 par 206.
Transcript of proceedings before Barr J T3170.47.
Transcript of proceedings before Barr J, T3196.36 - 3197.30.
Transcript of proceedings T1034.10 - 1035.45.
Transcript of proceedings T1036.41 - 1036.49.
Transcript of proceedings T1037.49 - 1038.43.
Transcript of proceedings before Barr J, T3159.42 - T3160.14.
Statement of Mark Tedeschi dated 16 February 2017 pp 18 - 19.
Transcript of proceedings before Barr J, T3159.49 - 3160.01.
Transcript of proceedings before Barr J, T3166.13 - 3166.24.
Transcript of proceedings before Barr J T3167.01 - 3167.07.
Transcript of proceedings before Barr J T3170.44 - 3171.04.
Transcript of proceedings before Barr J T3277.08 - 3277.29.
Court book pp 6799.11 - 26.
Transcript of proceedings before Barr J T2414.11 - 26.
Transcript of proceedings before Barr J T2414.45 - 47.
Transcript of proceedings before Barr J T3246.34 - 3247.07.
Transcript of proceedings before Barr J T3246.49.
Court book p 1600.
Transcript of proceedings before Barr J T 494.38 - 495.13.
Transcript of proceedings before Barr J, T 499.11 - 499.15.
Transcript of proceedings before Barr J, T 508.26 - 508.31.
Plaintiff's written submissions dated 17 April 2007 p 104.
Court book p 14805.
Transcript of proceedings before Barr J T2450.01 - 2450.15.
Transcript of proceedings T595.49 - 596.03.
Plaintiff's written submissions dated 17 April 2017 p 105.
Transcript of proceedings T1010.01 - 1010.33.
Transcript of proceedings before Barr J T495.12 - 13.
Transcript of proceedings before Barr J T499.11 - 14.
Transcript of proceedings before Barr J T3272.31 - 32.
Transcript of proceedings before Barr J T3276.48 - 3279.50.
Transcript of proceedings before Barr J T3276.42 - 46.
Transcript of proceedings before Barr J, T72.34 - 35.
Transcript of proceedings before Barr J T33.06 - 24.
Transcript of proceedings before Barr J T3276.48 - 3277.02.
Court book pp 255 - 256.
Court book pp 349 - 350.
Court book pp 2746 - 2747.
Court book p 2747.
Court book p 2748.
Court book p 2749.
Transcript of proceedings before Barr J T386.10 - 387.12.
Transcript of proceedings before Barr J T389.03 - 389.25.
Transcript of proceedings before Barr J T390.38 - 390.47.
Court book pp 2243 - 2245.
Court book p 2249.
Transcript of proceedings before Barr J T83
Court book p 7606.
Court book p 7617.
Transcript of proceedings before Barr J T606.28 - 607.01.
Court book p 2050.
Court book p 3135.
Court book pp 3721 - 3722.
Court book p 18116.
Court book p 18118.
Transcript of proceedings before Barr J, T3151.28 - 3151.43.
Transcript of proceedings before Barr J, T3157.07 - 11.
Transcript of proceedings before Barr J, T3276.48 - 3279.50.
Transcript of proceedings before Barr J, T3257.33 - 36.
Transcript of proceedings before Barr J, T3257.42 - 44.
Transcript of proceedings before Barr J T482.48 - 483.45.
Plaintiff's written submissions dated 17 April 2017 par 247.
Transcript of proceedings T979.33 - 980.14.
Transcript of proceedings T980.22 - 982.11.

Wood v State of New South Wales

At a glance

Court

Decision date

Before

Source

Judgment (149 paragraphs)

Parties

Legislation Cited (10)

Cases Cited (98)

Cited By (10)