Wood v State of New South Wales

Court of Appeal (NSW)|2019-11-19|Before: Gleeson JA, Payne JA, Fullerton J

[Note: The Uniform Civil Procedure Rules 2005 provide (Rule 36.11) that unless the Court otherwise orders, a judgment or order is taken to be entered when it is recorded in the Court's computerised court record system. Setting aside and variation of judgments or orders is dealt with by Rules 36.15, 36.16, 36.17 and 36.18. Parties should in particular note the time limit of fourteen days in Rule 36.16.]

The criminal trial and appeal

A detailed account of the criminal trial of the appellant is to be found in the reasons of the Court of Criminal Appeal and in the primary judgment. For present purposes, the following will suffice to permit an appreciation of the issues raised in the appellant's claim for damages.
Prior to June 1995 the appellant and Ms Byrne lived together in a domestic relationship. In the early morning of 8 June 1995 Ms Byrne's body was recovered from the bottom of a cliff at The Gap at Watsons Bay, a well-known location in Sydney for suicide. Eleven years later, on 3 May 2006, the appellant was charged with Ms Byrne's murder. A trial proceeded in the Supreme Court over three months. The Crown case was circumstantial. The Crown relied on a number of circumstances from which, it contended, the jury should conclude that the appellant had murdered Ms Byrne. It is not the purpose of this judgment to review each of the circumstances on which the Crown relied to establish the appellant's guilt. Those can be seen in the comprehensive judgment of the Court of Criminal Appeal. Rather, it is to draw attention to certain features of the trial on which the appellant relied to establish that the conduct of Mr Tedeschi as Crown Prosecutor was malicious.
The evidence in the criminal trial was capable of establishing that the appellant was a strongly built and fit young man at the time of Ms Byrne's death. She was a slightly built woman. Her body was found, head first and face down, in one of two holes (referred to in the trial as Hole A and Hole B). There was some confusion as to which of the two holes was the correct location of her body.
There was some evidence that Ms Byrne had suffered from depression. There was also evidence (including from a witness, Mr Georgiou) that she was troubled by her relationship with the appellant and contemplated ending it, and that he was aware of that fact.
In order to exclude the possibility that Ms Byrne committed suicide, the Crown qualified an expert, Associate Professor ("A/Prof") Cross, an engineer, to report on, inter alia, whether Ms Byrne had caused her own death by jumping from the cliff, or whether she had been thrown from the cliff. A/Prof Cross became intensely interested in the issue and conducted a number of experiments, which included having cooperative young women thrown into swimming pools, in order, apparently, to determine such matters as trajectory. From these experiments A/Prof Cross proposed that it was at least possible that Ms Byrne had been thrown over the cliff by one or two men. This was a proposition strongly advanced at the trial on behalf of the Crown. As emerged with clarity in the judgment of the Court of Criminal Appeal, there were serious deficiencies in the evidence of A/Prof Cross.
A/Prof Cross became a principal witness in the criminal trial. The integrity of his evidence was a central feature in the appeal to the Court of Criminal Appeal.
One circumstance relied on by the Crown concerned the appellant's employment. There was evidence that he had been employed by a well-known stockbroker, Rene Rivkin. Mr Rivkin was alleged to be involved in a company called Offset Alpine Printing Ltd ("Offset Alpine"), about which (as the Court of Criminal Appeal said) "there were suspicions of dishonest dealing" ([58]). At trial Mr Tedeschi advanced to the jury a hypothesis that Ms Byrne was aware of some circumstances relating to Offset Alpine that might have been damaging to Mr Rivkin, and, if disclosed by Ms Byrne, might have damaged the appellant's employment relationship with Mr Rivkin. Accordingly, Mr Tedeschi hypothesised that concern for his employment provided a motive for the appellant to kill Ms Byrne.
A second strand of the Crown case on motive advanced by Mr Tedeschi on behalf of the Crown concerned the nature of the relationship between the appellant and Ms Byrne. Mr Tedeschi asserted that the appellant was "possessive and controlling" of Ms Byrne and that his awareness of her wish to end the relationship also provided a motive for him to kill her.
The Crown adduced evidence of the appellant's conduct on the night Ms Byrne died. In part, this related to the garaging, in at least two carparks in and around Kings Cross, of motor vehicles owned by Mr Rivkin to which the appellant had access.
The evidence of the appellant's conduct included evidence from which it might be inferred that the appellant knew where Ms Byrne's body was, although he claimed not to have been present at The Gap at the time she died.
A Mr Doherty, who lived near The Gap, gave evidence that, on a winter night in 1995, he heard "a girl's voice moaning and in distress". From his window he was able to observe "a slim built man" about 6 feet tall, and a girl sitting in a gutter in Military Road, her face concealed. Mr Tedeschi relied on this evidence as supporting an inference that the man was the appellant and the "girl" was Ms Byrne, and therefore one relevant circumstance justifying the prosecution of the appellant for murder.
There was also evidence given by a Ms McVeigh that, in a gym on an evening shortly before Ms Byrne's death, an argument had taken place between the appellant and Ms Byrne, in which he had "berated" her, and she was "sobbing uncontrollably".
At the conclusion of the evidence, Mr Tedeschi proposed to the trial judge that he would provide the jury with a written list of 50 questions, which, he suggested, called for explanation from the appellant. The trial judge declined to allow the document to be given to the jury. Mr Tedeschi (without objection) nevertheless, in his oral address to the jury, read the list of questions, in such a manner as to encourage the jury to write them down. The Court of Criminal Appeal criticised this approach, finding that it impermissibly reversed the onus of proof.
Both in his opening to the jury at the commencement of the trial and in his closing address Mr Tedeschi relied on what he called "a killer point". That was that, despite his claim to not having been present at the time Ms Byrne went over the cliff, the appellant subsequently knew precisely where her body was and how Ms Byrne was dressed.
The above does not purport to be a full account of the criminal proceedings. This outline is intended to provide a basic factual context for an understanding of the reasoning that follows.

Decision of the primary judge

The trial before her Honour lasted 22 days. Mr Tedeschi was extensively cross-examined over four days.
The sole cause of action ultimately before the primary judge was malicious prosecution. The case finally advanced was that each of Mr Tedeschi, A/Prof Cross and Det Insp Jacobs (the lead investigator) was a "prosecutor" for whose alleged tortious conduct the defendant was vicariously liable. The State of New South Wales denied that the tortious conduct had been committed but accepted that at all times it was vicariously liable for the conduct of Mr Tedeschi. The primary judge rejected the appellant's case that either A/Prof Cross or Det Insp Jacobs was, relevantly, a "prosecutor". No appeal was brought from that part of the decision.
Her Honour described the issues before her in the following way, which was not challenged on the appeal: "[11] 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. [12] 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. …"
The primary judge summarised the relevant legal test she was applying. No criticism of that legal test was advanced by the appellant.
Her Honour concluded at [1127]-[1128] that assessed objectively the prosecution of the appellant was initiated and maintained without reasonable and probable cause. However, after a lengthy examination and discussion of the evidence, she concluded that the appellant had failed to prove that Mr Tedeschi acted maliciously in the relevant sense: [1332]-[1345].
It is fair to say that her Honour made numerous findings about the conduct of Mr Tedeschi in prosecuting the appellant which were damning of his judgment, competence and (in some respects) discharge of his ethical obligations. The respondent did not seek to disturb any of those findings nor the conclusion that the prosecution lacked reasonable and probable cause. Save to the extent that findings made in this part of the case are relied upon by the appellant, which will be addressed below, it is unnecessary to explain the detailed findings, over hundreds of pages, made by the primary judge which led to this ultimate conclusion.
The only issue in the appeal was the primary judge's findings about malice. The second further amended statement of claim contained 69 separate particulars of malice. Many were discursive and made assertions about facts proven (and not proven) at the appellant's criminal trial. The primary judge addressed each of those particulars relevant to Mr Tedeschi's conduct and made findings about them. In all but one possible respect no complaint was made by the appellant about those individual findings about the particulars of malice. Rather, the essence of the appellant's complaint was that the primary judge drew the wrong conclusion about malice arising from the facts her Honour had found and/or failed to consider the totality of the evidence when making her dispositive findings about malice.
Her Honour's consideration of malice commenced at [1144] of the judgment. The case that Mr Tedeschi acted with malice was dissected in great detail over about 76 pages until [1331], after which her Honour set out her ultimate conclusions about this matter: [1332]-[1345].
After setting out each of the relevant pleaded particulars of malice at [1149], her Honour addressed a matter which was not expressly raised in the particulars of malice but which loomed large at the trial. This was the allegation that Mr Tedeschi failed to make an informed assessment of A/Prof Cross' credibility and reliability. It was also submitted that Mr Tedeschi's failure to lead evidence that qualified A/Prof Cross' opinions was evidence of malice. After setting out the test over a number of paragraphs, in a way not criticised by the appellant, her Honour concluded: "[1156] 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 [sic] 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. [1157] 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 primary judge then addressed each of the pleaded particulars of malice together with a number of matters "further particularised" in the appellant's closing submissions as follows: 1. Her Honour rejected a submission that it had been established that Mr Tedeschi had impermissibly fought or strained for a conviction in his closing submissions in the ways identified by the appellant: [1164], [1168]. 2. Her Honour rejected a submission that Mr Tedeschi had engaged in prosecutorial misconduct sufficient to demonstrate malice in the following respects, at [1170]: 1. the significance of Ex DJ (a photograph - see (11) below); 2. the "carpark issue" (which was not pleaded as a particular of malice); 3. the tender of Ex DO (part of A/Prof Cross' evidence - see (13) below) (which was not pleaded as a particular of malice); 4. the "50 Questions"; and 5. the "killer point". 1. Her Honour rejected a submission that Mr Tedeschi was not entitled to take into account the evidence of Mr Doherty as support for that part of the Crown case that it was Ms Byrne who was being shouted at by the appellant at 8pm on 7 June 1995 in Military Road, Watsons Bay near The Gap: [1173], [1209]. 2. Her Honour recorded that one of the two motives pressed by the Crown at the criminal trial - that the appellant had passed on to Ms Byrne details of his knowledge of Mr Rivkin's affairs related to Offset Alpine - was asserted by the appellant at trial to be no more than "speculation, smear and innuendo". Her Honour explained at [1180], in a passage about which no complaint was made by the appellant, that in order to find malice established she would need to conclude that Mr Tedeschi's evidence that he believed he had an adequate foundation to advance a Crown case on motive as linked to Mr Rivkin was untrue or so untenable as to be not worthy of any weight. 3. Her Honour accepted that, "despite the somewhat crude use of the vernacular", Mr Tedeschi was entitled to put to the jury as a motive for the murder that the appellant was "abusive, possessive and a control freak" and that the appellant was "possessive and controlling" of Ms Byrne: [1182]-[1183]. 4. Her Honour addressed, in considerable detail, the appellant's submission about evidence of the "gym fight" between the appellant and Ms Byrne relevant to motive, being the appellant's "possessive and controlling" attitude towards Ms Byrne, and her desire to end the relationship. Her Honour rejected a submission that Mr Tedeschi's address to the jury on this motive was "entirely speculative and improper". Her Honour found that based on evidence available to him there was no impropriety in advancing this aspect of the Crown case on motive: [1196]. 5. Her Honour addressed the evidence of a Mr Georgiou who recounted conversations with Ms Byrne in which she told him that her relationship with the appellant had deteriorated and that she "wanted out" and was fearful for her life as a result. The appellant's complaint was that Mr Tedeschi was not entitled to put that Mr Doherty had heard Ms Byrne "sobbing" ("sobbing" being a word used by Ms McVeigh about "the gym fight", but not by Mr Doherty): [1200]. 6. Her Honour set out over some pages the cross-examination of Mr Tedeschi before her on this topic and concluded that she was not persuaded that Mr Tedeschi's approach so exceeded the legitimate reach of his duties as a prosecutor as to amount to prosecutorial misconduct: [1209]. 7. Her Honour then returned to the topic of Mr Rivkin and whether the appellant had what Mr Tedeschi described to the jury as "insider trading information". Her Honour rejected the appellant's submission that Mr Tedeschi alleged collateral criminal conduct on the appellant's part: [1220]. 8. Her Honour did, however, accept that there was no evidence that Ms Byrne had any information, confidential or otherwise, about Mr Rivkin's business affairs such that the appellant was motivated to kill her. Her Honour found that "the submission should not have been advanced": [1220]. 9. Her Honour addressed the significance of Ex DJ at the criminal trial. Ex DJ was a photograph of The Gap on which the date was misstated. Her Honour recorded that it was no part of the appellant's case that there was a conspiracy involving Mr Tedeschi to conceal the knowledge that the date of the photograph had been misstated: [1242]. Her Honour found that the incorrect date caption came to be applied on the photograph "erroneously but innocently". The related particulars of malice were rejected: [1242]. 10. Her Honour addressed what she described as the "carpark issue" which, broadly put, was an issue involving the use by the appellant of a car belonging to Mr Rivkin on the night of Ms Byrne's death. The issue was that the appellant said that he had walked past a Kings Cross carpark where, it was asserted, Mr Rivkin kept a number of vehicles and walked to a building further away where Mr Rivkin also kept vehicles. A Mr Macmillan had provided a statement in which he said that, at that time, no vehicles belonging to Mr Rivkin were garaged in that car park. Mr Tedeschi was cross-examined at great length about his state of mind on this issue. After considering in minute detail the evidence before her, over several pages, her Honour concluded that she could not reject Mr Tedeschi's evidence that he misheard or misremembered evidence about which of the carparks contained vehicles belonging to Mr Rivkin at the relevant time. Her Honour declined the invitation by the appellant to find that Mr Tedeschi was being dishonest in offering this explanation for his conduct at the trial: [1260]. 11. Her Honour addressed the subject of Ex DO, being a series of photographs of mannequins placed head first into one of the holes relevant to where Ms Byrne's body was recovered. Her Honour was not satisfied that the tender and provision of Ex DO to the jury unfairly detracted from the evidence regarding the orientation of Mr Byrne's body, or was intended to do so. This particular of malice was rejected: [1275]-[1276]. 12. Her Honour then addressed the subject of the "50 questions", which, it was accepted following the judgment of the Court of Criminal Appeal should not have been asked in that form because of the risk of reversing the onus of proof: [1281]. Her Honour found that while Mr Tedeschi was not permitted to hand the jury the 50 questions in writing, he asked the 50 questions openly in his closing address, without objection by senior counsel for the appellant at the trial and without demur from the trial judge who was presiding. Whilst the primary judge found Mr Tedeschi's evidence about his state of mind in asking those questions "difficult to accept", she was unable to conclude that it was conduct from which malice might be inferred: [1286]; 13. Her Honour addressed the so-called "killer point", being what Mr Tedeschi described as the appellant's extraordinary knowledge about where Ms Byrne's body would be found and what clothes she was wearing. After a detailed consideration of the evidence, over many pages, her Honour concluded that she was not persuaded that the "killer point" was not available to be put to the jury by Mr Tedeschi: [1331].
Her Honour then set out her dispositive conclusions on the topic of malice: [1332]-[1345]. The essential conclusion reached by her Honour was that she could not be satisfied that Mr Tedeschi had prosecuted the appellant for Ms Byrne's murder maliciously. We will return to the findings described above in a little detail when addressing the appellant's case in this Court.

Notice of appeal

The notice of appeal, filed on 9 November 2018, contained three grounds: 1. Her Honour erred (at [32]-[143]) in failing to find that the orders and judgment of the Court of Criminal Appeal in Wood v R gave rise to an issue estoppel and/or an abuse of process. 2. Her Honour erred (particularly at [1332]-[1345]) in failing to find that Mr Tedeschi acted with malice in prosecuting the appellant. 3. Her Honour erred in failing to assess damages.
An amended notice of appeal was filed on 3 May 2019. It did not press grounds 1 and 3, and expanded upon ground 2 as follows: 2 Her Honour erred (particularly at [1332]-[1345]) in failing to find that Mark Tedeschi QC acted with malice in initiating and/or maintaining the prosecution of the appellant for the murder of Caroline Byrne, in that: 2.1 Her Honour ought to have found that Mr Tedeschi had actual knowledge: 1. that he did not have reasonable or probable cause to initiate and/or maintain the prosecution; and 2. that his conduct of the prosecution was not consistent with his legal and ethical obligations as a Crown Prosecutor. 2.2 In the alternative, her Honour ought to have found that Mr Tedeschi was recklessly indifferent to: 1. whether he had reasonable or probable cause to initiate and/or maintain the prosecution; and 2. whether his conduct was consistent with his legal and ethical obligations as a Crown Prosecutor.
At the hearing, the appellant did not press ground 2.2. Despite the fact that little was said by the appellant orally about ground 2.1(a) and an assertion was made by the respondent that this ground should also be regarded as abandoned, as the matter was addressed in the written submissions and not formally abandoned we propose to address that ground in these reasons.

Appellant's submissions

The appellant framed the issue in this appeal as being "whether her Honour erred in failing to find also that Mr Tedeschi acted with malice". The appellant submitted that although the question of whether Mr Tedeschi acted with malice was one of fact, it was a secondary inference to be drawn from the findings of primary fact concerning his conduct of the prosecution: see Trobridge v Hardy (1955) 94 CLR 147 at 162-163; [1955] HCA 68 per Kitto J; Brown v Hawkes [1891] 2 QB 718 at 722 per Cave J.
It was submitted that the position of this Court is not inferior to that of the primary judge in deciding whether an inference of malice ought to have been drawn from the facts: Warren v Coombes (1979) 142 CLR 531 at 551-552; [1979] HCA 9 per Gibbs ACJ, Jacobs and Murphy JJ. That inference is equally available to this Court: Webb v Bloch (1928) 41 CLR 331 at 359-360; [1928] HCA 50 per Isaacs J.
It was submitted that there was nothing in her Honour's reasons which demonstrated that she based any specific finding on her assessment of Mr Tedeschi's demeanour as a witness. Such views as her Honour did express about Mr Tedeschi's credibility were based on the substance of his evidence. Any unstated impressions her Honour did form of Mr Tedeschi's demeanour should not be regarded as critical to her ultimate conclusions: Fox v Percy (2003) 214 CLR 118; [2003] HCA 22 at [30]-[31] per Gleeson CJ, Gummow and Kirby JJ.
The appellant submitted that, contrary to the primary judge's findings, the only persuasive inference from the evidence is that Mr Tedeschi actually knew that the evidence available to him was not capable of proving the appellant's guilt beyond reasonable doubt; which is to say that he knew that the Crown lacked reasonable or probable cause to initiate or to maintain the prosecution. This was said to be demonstrated by Mr Tedeschi's handling of A/Prof Cross' evidence, the "lynchpin" of the Crown's case, and by Mr Tedeschi's submissions on the appellant's motive to murder Ms Byrne. It was submitted that the only persuasive explanation for Mr Tedeschi's "professional misconduct", in particular his use of the "50 Questions", is that it was deliberate.
The appellant accepted that while the primary judge found that the prosecution of the appellant was initiated and maintained without reasonable or probable cause, her Honour declined to find that Mr Tedeschi had actual knowledge of this fact. Similarly, although her Honour found that Mr Tedeschi had misconducted himself during the trial in numerous ways, she felt unable to conclude that he knew subjectively that his conduct of the prosecution was improper.
The appellant submitted that if her Honour had drawn these inferences, an ultimate finding that Mr Tedeschi initiated or maintained the prosecution maliciously was "inevitable".
In oral address, senior counsel for the appellant reiterated that the appellant's case did not require this Court to disturb any demeanour-based credit findings made by the primary judge. The appellant did not file a statement under Uniform Civil Procedure Rules 2005 (NSW) r 51.36 identifying those findings of fact that were attacked by the appellant. In response to an invitation from the Court the appellant identified the only factual findings which were challenged as being: 1. That while her Honour identified three available explanations for Mr Tedeschi's failure to adduce evidence of the qualifications to A/Prof Cross' opinion, she only rejected two of those possibilities. It was submitted that the third possibility was "[t]he single most compelling inference" "that Mr Tedeschi consciously refrained from adducing evidence of the limitations of A Prof Cross's evidence, because he knew that doing so would expose a fundamental flaw in the Crown's case". 2. That "[n]owhere in the Judgment does her Honour make a reasoned finding as to why Mr Tedeschi could have honestly believed that he was entitled to advance his case on motive, in circumstances where her Honour was so readily satisfied that it was entirely speculative and plainly unsupported by any evidence available to the Crown". 3. Her Honour's finding that Mr Tedeschi "misheard or misremembered" Mr Macmillan's evidence about the Kings Cross carpark.
The appellant submitted that her Honour had fallen into an error of approach: 1. First, it was submitted that all the adverse findings her Honour had made in relation to Mr Tedeschi and the lack of reasonable and probable cause ought inevitably have led to a finding of malice. 2. Secondly, her Honour misled herself about what she found was Mr Tedeschi's "fixed view" and assumed, incorrectly, that the "fixed view" held by Mr Tedeschi was inconsistent with malice. It was submitted that this was a false dichotomy.
Senior counsel for the appellant concentrated his address on four specific issues which were said to illuminate these overall submissions about the errors in the primary judge's approach: 1. the question of motive; 2. the way A/Prof Cross' evidence was led; 3. the "carpark issue"; and 4. the "50 questions issue".

Consideration

The first matter to observe about this appeal is that there was no challenge by the appellant to the primary judge's identification and application of legal principles to the tort of malicious prosecution by reference to A v State of New South Wales (2007) 230 CLR 500; [2007] HCA 10. Those principles were distilled by her Honour in the following passage: "[223] 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. [224] 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. [225] 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]). [226] 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. [227] 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. [228] 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. [229] 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. [230] 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. [231] 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. [232] 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."
The second matter to observe is that except in the limited respects described at [42] above, there was no challenge by the appellant to the primary findings of fact made by her Honour. It is well established that findings of fact based on credit, such as those that are the bases for the primary judge's ultimate conclusion here, will not be disturbed on appeal unless they are shown to be wrong by "incontrovertible facts or uncontested testimony" or are "glaringly improbable" or "contrary to compelling inferences": Fox v Percy (2003) 214 CLR 118; [2003] HCA 22 at [28]-[29]; Robinson Helicopter Co Inc v McDermott [2016] HCA 22; 90 ALJR 679 at [43]. We set out a summary of the credit-based findings of primary fact made by the primary judge relevant to malice at [48] below. Far from concluding that the primary judge's primary findings of fact were shown to be wrong by "incontrovertible facts or uncontested testimony" or were "glaringly improbable" or "contrary to compelling inferences", we are comfortably satisfied that they were correct.
The appellant's submission that her Honour did not make demeanour-based credit findings about Mr Tedeschi is untenable. Her Honour observed Mr Tedeschi being cross-examined over four days. She set out large passages of that cross-examination in her consideration of each of the issues the appellant asked her to address. Her Honour carefully weighed the explanations she saw and heard Mr Tedeschi give against all of the evidence and the probabilities as she assessed them. While she may not, on every occasion, have explicitly stated that her findings were based on her assessment of Mr Tedeschi's credibility, it is inherent in her approach that acceptance or otherwise of his evidence was a factor in her ultimate determination of individual issues.
There was little attempt by the appellant to grapple with the evidently demeanour-based critical findings made about Mr Tedeschi relevant to the topic of malice. In particular: 1. Her Honour rejected a submission that Mr Tedeschi was not entitled to take into account the evidence of Mr Doherty as support for that part of the Crown case that it was Ms Byrne who was being shouted at by the appellant at 8pm on 7 June 1995 in Military Road, Watsons Bay near The Gap. In doing so, her Honour appears to have accepted Mr Tedeschi's evidence that he was satisfied that there was a sufficient connection between the evidence of Ms McVeigh (that Ms Byrne was "sobbing" in the gym while being "berated" by the appellant) and the evidence of Mr Doherty (concerning what he observed in Military Road). This was a demeanour-based credit finding: [1173], [1209]. 2. Her Honour rejected the appellant's case that malice was established by the way Mr Tedeschi addressed the topic of motive, or at least that part of the suggested motive related to Mr Rivkin and his business dealings. Her Honour was not satisfied that Mr Tedeschi's evidence before her that he believed he had an adequate foundation to advance a Crown case on motive as linked to Mr Rivkin was untrue. This was a credit finding. The primary judge concluded that she was not satisfied that Mr Tedeschi's evidence was so untenable as to be unworthy of any weight. This too involved a demeanour-based credit finding: [1180]. 3. Her Honour accepted, on the basis of a lengthy witness statement made by Mr Tedeschi, that Mr Tedeschi was entitled to put to the jury as a motive for the murder that the appellant was "abusive, possessive and a control freak" and that the appellant was "possessive and controlling" of Ms Byrne was in part a credit finding: [1182]-[1183]. 4. Her Honour's findings about the "gym fight" between the appellant and Ms Byrne involved demeanour-based credit findings relevant to Mr Tedeschi's genuine belief that the evidence showed the appellant's "possessive and controlling" attitude towards Ms Byrne and her desire to end the relationship: [1196]. 5. Her Honour considered that she should not reject Mr Tedeschi's evidence that he genuinely believed Mr Georgiou who recounted conversations with Ms Byrne in which she told him that her relationship with the appellant had deteriorated and the she "wanted out" and was fearful for her life as a result: [1199]. 6. In relation to Mr Tedeschi's treatment of Mr Doherty's evidence, her Honour set out several pages of cross-examination of Mr Tedeschi on this topic, engaged in a careful weighing of that evidence, and concluded that she was not persuaded that Mr Tedeschi's approach so exceeded the legitimate reach of his duties as a prosecutor as to amount to prosecutorial misconduct: [1209]. This was in part based on Mr Tedeschi's evidence (referred to above) that he believed that there was a sufficient connection between the evidence of Ms McVeigh and Mr Doherty to warrant the approach he took, and was, accordingly, at least in part demeanour based; 7. Her Honour addressed the significance of Ex DJ at the criminal trial, being a photograph of The Gap on which the date was misstated. Her Honour found that the incorrect date caption came to be applied on the photograph "erroneously but innocently" and that A/Prof Cross failed to alert Mr Tedeschi to the error: [1242]. This was a credit finding; 8. Her Honour's treatment of the "carpark issue" involved close consideration by the primary judge of Mr Tedeschi's evidence about his state of mind on this issue. After considering the minute details of the evidence before her over several pages, her Honour concluded that she could not reject Mr Tedeschi's evidence that he misheard or misremembered evidence about which of the three carparks contained vehicles belonging to Mr Rivkin at the relevant time: [1260]. This was another demeanour-based credit finding; 9. Her Honour's treatment of the "50 questions" involved close consideration of Mr Tedeschi's credit. Whilst the primary judge found Mr Tedeschi's evidence "difficult to accept", her Honour was unable to conclude that it was conduct from which malice might be inferred: [1286]; 10. Her Honour's assessment of the evidence concerning the "killer point" involved a detailed consideration of the evidence, over many pages. This was another demeanour-based credit finding. Her Honour concluded that she was not persuaded that the "killer point" was not available to be put to the jury by Mr Tedeschi: [1331].
The third matter to notice is that over the course of his four day cross-examination, no particular ulterior motive was suggested to Mr Tedeschi as to why, on the appellant's case, he had prosecuted the appellant for a purpose ulterior to the purposes associated with the proper invocation of the criminal law. Of course, malice may be found without the identification of a particular ulterior motive. Her Honour recognised as much and quoted from the decision of Kitto J in Trobridge v Hardy (1955) 94 CLR 147 at 164; [1955] HCA 68 where his Honour explained that a finding of malice may be made even though the tribunal of fact may not feel able to say precisely what the malicious motive was. In such a case the tribunal of fact reasons 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. Nevertheless, the burden of proving that a professional prosecutor acted with malice is a heavy one. In this regard, the appellant did not suggest that tendency reasoning applied in this case in relation to other cases where criticism has been made of Mr Tedeschi's conduct.
The fourth matter to notice is that the case conducted by the appellant at trial and repeated on appeal did not differentiate between Mr Tedeschi's initiation and maintenance of the case against the appellant. That is, the appellant's approach was all or nothing and did not distinguish between Mr Tedeschi's knowledge and conduct at the time he initiated the prosecution and his subsequent knowledge and conduct during the time he maintained the prosecution to its conclusion.

The way the case was advanced by the appellant before the primary judge

Before considering the detail of the appellant's complaints on appeal about her Honour's approach to malice, it is appropriate to reflect on the way the appellant put his case at trial on this issue: "[1145] 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. [1146] 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."
A number of matters emerge from these passages: 1. First, in addressing the findings of malice which were sought, her Honour was required to be satisfied to the standard identified in s 140(2) of the Evidence Act 1995 (NSW). 2. Secondly, her Honour concluded that Mr Tedeschi believed that he had reasonable and probable cause to prosecute the appellant at all relevant times. 3. Thirdly, the primary judge specifically identified and addressed the topic of proof of malice by inference from proof of the objective absence of reasonable and probable cause. Her Honour held that proof of malice by inference in this respect, must not only be a possible explanation for the prosecution being initiated and maintained by Mr Tedeschi, but the more probable explanation for his doing so. No challenge was made to that finding on the appeal. 4. Fourthly, the appellant did not identify with clarity how he submitted that malice would be established in the event that the primary judge was not satisfied that the appellant had demonstrated that Mr Tedeschi was without an honest and genuine belief in the sufficiency of the evidence to prove his guilt. 5. Fifthly, her Honour was invited by the appellant to find that Mr Tedeschi constructed a case designed to convict him of Ms Byrne's murder, by manipulating the evidence to conceal what he knew or considered might be revealed weaknesses in the Crown case theory, 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. Her Honour considered and addressed this submission in considerable detail. 6. Sixthly, a principal focus of the appellant's case was that malice could be inferred from a close consideration of aspects of Mr Tedeschi's closing address to the jury. Her Honour considered all of the pleaded aspects of that address (and a number which were not pleaded). We will address those said on the appeal still to be relevant.

Findings of absence of reasonable and probable cause/ acting inconsistently with his legal and ethical obligations as a Crown Prosecutor

The appellant's submission that all of the adverse findings made by her Honour in relation to Mr Tedeschi acting inconsistently with his legal and ethical obligations as a Crown Prosecutor, and that the lack of reasonable and probable cause must inevitably have led to a finding of malice, should be rejected.
The passage from A v State of New South Wales set out and applied by the primary judge and repeated at [45] is focussed upon the distinction between the two elements of the tort, malice and absence of reasonable and proper cause, and the difficulties in reducing the relationship between those elements to an aphorism. Paragraph 90 of the judgment of the High Court says nothing more than that the same evidence, namely, a patently weak prosecution case, can enable a court to conclude that both elements have been made out. It certainly does not support a proposition that an inference of malice must be drawn. The primary judge was acutely aware of this issue and repeated it several times before addressing each of the aspects of the case relied upon by the appellant and then returning to an overall assessment of the question of malice and drawing all of the threads together.
Ultimately, her Honour was not persuaded that the appellant had established to the requisite standard any of the particulars of malice which were advanced. We have set out her Honour's conclusions at some length at [31] above.
The question of whether, despite those findings of primary fact and despite her Honour's findings about Mr Tedeschi's evidence, her Honour could nevertheless be satisfied of malice, was addressed by her Honour expressly and at length.
An overzealous prosecution, in and of itself, does not necessarily demonstrate malice but may provide cogent evidence of malice. The primary judge said as much, clearly and repeatedly. Her Honour's ultimate conclusions expressly addressed this issue.
The task in this Court is one of appellate review of the nuanced decision of the primary judge to decline to find malice. Insofar as the appellant contended there was error in failing to find that Mr Tedeschi was motivated by an improper purpose, the appellant carried the large burden of overcoming findings based on an extensive cross-examination of him over four days. In Anderson v Anderson [2017] NSWCA 131 Leeming JA said: "[35] It is no small thing for this Court to be invited to make a finding of fraud or other serious misconduct on appeal where one has not been made at first instance. In rare circumstances that may occur. The power to draw inferences and make findings of fact conferred or confirmed by s 75A(6)(b) of the Supreme Court Act 1970 (NSW) when this Court performs an appeal by way of rehearing includes power, in an appropriate case, to make findings of fraud or dishonesty. [36] One example is Chen v State of New South Wales (No 2) [2016] NSWCA 292 at [28]-[36]. There the evidence overwhelmingly pointed to the adverse finding, namely, that a police officer had attempted (unsuccessfully) to delete photographs thought (wrongly) to have presented her execution of an arrest in a poor light. This Court identified error in the primary judge declining to make that finding. Two points may be highlighted for present purposes. The first is that there was no realistic scope for any intermediate explanation: the attempt to delete the photographs unquestionably occurred and could not have been other than deliberate. The second was that the police officer had not given evidence before the judge at first instance, and so the primary judge did not possess any advantage having seen the officer give evidence which this Court did not possess. [37] That example illustrates how the principles governing appellate review are applied in such cases. In Hare v Harmer [2009] NSWCA 68, Sackville AJA (with whom Macfarlan JA and Handley AJA agreed) said at [47] that: "Waterways Authority v Fitzgibbon does not necessarily prevent an appellate court, where the trial judge has been shown to have erred on a factual question, from substituting its own findings of fact for those made by the trial judge. It may be that, once the trial judge's error is corrected, the probative evidence on a particular issue points to only one conclusion. Alternatively, if the remaining evidence, although conflicting, presents no issue of the reliability or credit of particular witnesses, the appellate court may be in as good a position as the trial judge to resolve the conflict: cf Warren v Coombes (1979) 142 CLR 531 at 551-552, per Gibbs ACJ, Jacobs and Murphy JJ." [38] Conversely, and picking up the qualification in the concluding sentence of that passage, Macfarlan JA said (with the agreement of McColl JA and Sackville AJA) in Miller Heiman Pty Ltd v Sales Principles Pty Ltd [2017] NSWCA 106 at [58]: "Generally this Court is not in a position to determine an issue which depends upon the credibility of witnesses in the Court below as it has not seen and heard the witnesses give their evidence and thus cannot form views about their demeanour"."
We have examined the reasons for judgment in detail. Her Honour engaged, over 1,346 separate paragraphs, in a forensic and highly detailed examination of all of the evidence. At all stages a careful weighing of the competing considerations is apparent.
Her Honour engaged in a fact-finding process which may properly be described as painstaking. After addressing each of the particulars of malice in the way described at [31] above, her Honour returned to an overall consideration of malice at [1332]-[1345]. Her Honour found in this part of her reasons, which were dispositive, that: 1. Despite the findings that the prosecution was advanced without a reasonable and proper cause, and the numerous flaws to which her Honour drew attention, it did not follow that the only possible remaining explanation was that Mr Tedeschi was "straining for a conviction by improper means": [1333]. 2. Her Honour considered whether Mr Tedeschi honestly believed (consistently with the Bar Rules and the Director's Guidelines) that there was sufficient evidence to support the submissions her Honour found "as being without evidential foundation": [1334]. 3. Her Honour viewed critically Mr Tedeschi's conduct but stated: "[1337] 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." 1. Her Honour's dispositive findings ("in concluding that the plaintiff has failed to prove that he was prosecuted maliciously") were that she was not satisfied that Mr Tedeschi was being deliberately dishonest when he gave evidence that his approach as a prosecutor was consistent with his ethical obligations: [1341]. 2. Critically, her Honour was also not satisfied that the evidence Mr Tedeschi gave in defence of his conduct was so wholly untenable that she must reject it. Her Honour was not persuaded that the inference of malice should be drawn: [1341].
There was no error shown in the way her Honour dealt with the issue of malice. Her Honour made a careful assessment of all of the evidence. A matter critical to her Honour's dispositive conclusion was Mr Tedeschi's "presentation as a witness in these proceedings": [1342]. Her Honour's conclusions about malice were not shown to be wrong by "incontrovertible facts or uncontested testimony" or "glaringly improbable" or "contrary to compelling inferences".
This principal plank of the appellant's attack should be rejected. All of the adverse findings her Honour had made in relation to Mr Tedeschi acting inconsistently with his legal and ethical obligations as a Crown Prosecutor and the lack of reasonable and probable cause did not dictate a finding of malice. A v State of New South Wales does not support a proposition that such an inference must be drawn. Her Honour after considering all of the evidence was not persuaded that the inference of malice should be drawn.
No error has been shown either in the approach of the primary judge or in her Honour's conclusions.

Mr Tedeschi's "fixed view"

The submission that her Honour misled herself by adopting a "fixed view" approach should also be rejected. The appellant's principal contention in relation to this matter is unsound. Her Honour did not assume, much less find, that the "fixed view" held by Mr Tedeschi was necessarily and for that reason, inconsistent with malice. To the contrary, her Honour approached this question in a principled and nuanced way, accepting the dangers of a prosecutor who adopts a "fixed view". Her Honour went so far as to describe the matter the appellant relies upon as not being taken into account as "obvious": "[1336] 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."
Her Honour recognised, on numerous occasions, that she was required to consider not only whether she was satisfied that Mr Tedeschi was being deliberately dishonest but also whether the evidence Mr Tedeschi gave in defence of his conduct was so untenable that it must be rejected and malice inferred from his proven conduct. This latter analysis, engaged in repeatedly by the primary judge when addressing the individual particulars of malice and in detail in her Honour's ultimate dispositive findings, is completely inconsistent with her Honour approaching the existence of a "fixed view" about the evidence as in and of itself an answer to the allegation of malice.
There was no false dichotomy of the kind asserted by the appellant. This aspect of the appellant's case is rejected.

Motive and Mr Rivkin

The primary focus of the appellant's oral submissions in this Court was the attempt to demonstrate by four examples how it was that findings made by her Honour about the absence of reasonable and probable cause should inevitably have led to a finding of malice on the part of Mr Tedeschi. As earlier indicated, the prism through which the appellant suggested that the Court consider the issues was the closing address of Mr Tedeschi compared to a close analysis of the evidence at the criminal trial.
It will be recalled that two motives were advanced by Mr Tedeschi. One was that the appellant was "possessive and controlling" towards Ms Byrne who had expressed her desire to end the relationship. Witnesses who gave evidence in the trial said that Ms Byrne feared the appellant and his reaction to her ending their relationship. As her Honour said, this motive was linked to the other strand in Mr Tedeschi's argument about motive, namely that the appellant had shared with Ms Byrne details of Mr Rivkin's involvement in a notorious business venture, Offset Alpine. The Crown case was that the then Australian Securities Commission had launched a formal inquiry into dealings between Mr Rivkin and others about Offset Alpine, resulting in compulsory examination notices being served on the appellant and Mr Rivkin.
Mr Tedeschi told the jury that should Ms Byrne reveal what she had been told by the appellant it could "do untold harm" to the relationship between the appellant and Mr Rivkin (as his employer), thus putting that working relationship in jeopardy and the appellant's financial security in jeopardy. The motives were intertwined in that Mr Tedeschi told the jury they could conclude that the appellant feared that if the relationship ended Ms Byrne could jeopardise his relationship with Mr Rivkin, and that this motivated him to kill her.
The high point of the submissions for the appellant on this issue was the finding of the primary judge that there was no evidence that Ms Byrne had any information, confidential or otherwise, about Mr Rivkin's business affairs such that the appellant was motivated to kill her. Her Honour found that "the submission should not have been advanced": [1220].
The attempt on this appeal by senior counsel for the appellant to take this finding further, arguing that it reflected on Mr Tedeschi's state of knowledge, failed. The evidence this Court was shown, based principally from a Mr Riordan, an officer of the then Australian Securities Commission who gave evidence at the trial, may be summarised thus. Offset Alpine owned premises which were destroyed in a suspicious fire. An insurer nevertheless agreed to pay out the value of the policy. The inference Mr Tedeschi sought to have drawn was that the circumstances of that payment and the identities of those involved in procuring it raised suspicions of various breaches of the Corporations Law (in force at the time). Nominee shareholders of Offset Alpine based in Switzerland (and their principals) were suspected by the Australian Securities Commission of being involved in breaches of the Corporations Law. Prior to Ms Byrne's death a formal Australian Securities Commission enquiry had been commenced seeking evidence from, inter alia, the appellant and Mr Rivkin about the business affairs of Offset Alpine and its nominee shareholders. As we have said, however, the primary judge found that there was no evidence that Ms Byrne knew any of these matters.
Her Honour recognised the importance of this issue to the appellant's case. Her Honour said at [1180], in a passage not the subject of criticism on the appeal, that resolution of this question "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 primary judge dealt with this issue at length and explained it, in a further passage which was not the subject of criticism on the appeal, as follows: "[1213] 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."
The primary judge again posed the question about motive slightly later in the judgment in a way not criticised on the appeal: "[1223] 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."
Her Honour engaged in a detailed fact-finding process on this issue. She returned to the question of motive in explaining her dispositive conclusions. Her Honour found: 1. Despite her finding that submissions on motive were advanced without a sufficient basis, it did not follow that the only possible remaining explanation was that Mr Tedeschi was "straining for a conviction by improper means": [1333]; 2. Her Honour considered whether Mr Tedeschi honestly believed (consistently with the Bar Rules and the Director's Guidelines) that there was sufficient evidence to support the submissions he made: [1334]; 3. Her Honour viewed critically Mr Tedeschi's reliance on what her Honour described as the trial judge's "somewhat permissive approach to the Crown case on motive" but nevertheless recognised that Mr Tedeschi put his closing submissions consistently with the ruling of the trial judge: [1180], [1338]; 4. Her Honour's dispositive finding about motive ("in concluding that the plaintiff has failed to prove that he was prosecuted maliciously") was that she was not satisfied that Mr Tedeschi was being deliberately dishonest when he gave evidence that his approach as a prosecutor on this issue was consistent with his ethical obligations and that she was not satisfied that the evidence Mr Tedeschi gave in defence of his conduct was so wholly untenable that she must reject it and infer that malice had been proven by Mr Tedeschi's conduct. The evidence the primary judge was referring to included, critically, Mr Tedeschi's asserted belief in his right to put the impugned submission about motive: [1341].
There was no error shown in the way her Honour dealt with the issue of motive. Her Honour made a careful assessment of all of the evidence. A matter critical to her Honour's dispositive conclusion was Mr Tedeschi's "presentation as a witness in these proceedings": [1342]. That conclusion was not shown to be wrong by "incontrovertible facts or uncontested testimony" or "glaringly improbable" or "contrary to compelling inferences". Having examined all of the evidence on this issue, we are comfortably satisfied that her Honour's conclusion on this issue was correct.
The appellant's complaint about the way her Honour dealt with motive and Mr Rivkin must be rejected.

The way A/Prof Cross' evidence was led by Mr Tedeschi

Before descending into the detail of this aspect of the case, an overview is necessary. Put at its most basic, the foundation of Mr Tedeschi's theory of the Crown case was that the body of Ms Byrne could not have ended up face down in either of the two holes in the rocks at the bottom of The Gap voluntarily or accidentally. His theory of the Crown case was that it was the appellant who had thrown Ms Byrne to her death. In propounding this theory, Mr Tedeschi relied upon a vast number of circumstantial matters together with the evidence of the appellant that (on the night of Ms Byrne's death) he had taken the police and members of Ms Byrne's family to the spot where Ms Byrne died, led (he said) by her "spirit" and his accurate description of the clothes Ms Byrne was found in, despite the appellant saying he had not seen her at any time on that day: [639], [1321]. Mr Tedeschi relied upon a number of statements that he believed were lies, made about critical events by the appellant.
A/Prof Cross' evidence was important because, if accepted, it provided a basis to conclude that the appellant was capable, by himself, of throwing Ms Byrne to the place she was found. Professor Elliott, an expert biomechanist called by the Crown and whose views were otherwise embraced by the appellant, expressed the view throughout that, based on test results achieved by A/Prof Cross: "[482] … Ms Byrne neither ran, jumped, nor dived from the northern ledge to have arrived at Hole A."
A/Prof Cross' evidence went much further than simply negativing suicide as an explanation for Ms Byrne's death. Her Honour explained in detail the experiments conducted by A/Prof Cross and the assumptions he made which supported his thesis that the appellant could have, on his own, thrown Ms Byrne to the place where she was found. Ultimately, by reason of uncertainty about which of the two holes Ms Byrne was found in (called Hole A and Hole B at the trial), A/Prof Cross' evidence, to be of any real use to the Crown, needed to be capable of establishing that the appellant threw Ms Byrne to Hole A. The experiment that A/Prof Cross opined proved that this could be done was conducted in a swimming pool with police officers who were conscious and willing and cooperative participants.
A/Prof Cross' evidence was that a "spear throw" technique was the only possible throw technique that could have been employed by the appellant to throw Ms Byrne from the cliff edge to Hole A. The appellant referred to two "fundamental" difficulties in accepting A/Prof Cross' thesis. The first was that if Ms Byrne was conscious, a "struggling woman" would logically impede the successful execution of a spear throw. The second was that it had not been shown by A/Prof Cross that the appellant could have thrown an unconscious person that far, based on the so-called "limp throw" test results.
The primary judge noted at [1060] that Professor Elliott gave evidence in cross-examination that: "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."
The appellant's principal complaint was that the primary judge should have concluded that Mr Tedeschi's knowledge of fundamental difficulties with A/Prof Cross' evidence was evidence that would lead to a finding of malice.
Having sketched that background, we set out in more detail the primary judge's consideration of this issue: "[1062] 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. … [1071] 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."
There is no doubt that the primary judge was deeply critical of Mr Tedeschi. In these passages she described his conduct in disparaging terms and found Mr Tedeschi's explanation of his conduct as "difficult to accept". Nevertheless her Honour proceeded carefully to consider all of the evidence and summarised her process of reasoning in the following passage: "[1138] 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. [1139] That leaves open three conclusions, either: (a) 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 (b) 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 (c) 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."
Her Honour engaged in a weighing exercise of all of the available evidence and ultimately concluded that: "[1143] 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."
Given the critical importance of this issue to the way the case was conducted before her, her Honour returned to this issue. In so doing her Honour answered the question she had posed at [1139] as follows: "[1154] 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 ultimate dispositive findings of the primary judge specifically referred to this issue and repeated, in summary form, her conclusion that Mr Tedeschi's approach to the assessment of A/Prof Cross' reliability as an expert and the way evidence was led from him was flawed. Her Honour nevertheless concluded, taking into account all the evidence, that malice had not been proved.
No error has been shown in this finding. Without repeating all that we have said in relation to motive, her Honour saw and heard Mr Tedeschi give evidence over four days where he was taxed, in minute detail, about this issue. Her Honour was not satisfied that his evidence that he genuinely believed that he was able to lead A/Prof Cross' evidence in the way that he did was false or that the evidence was so obviously untenable that malice was the appropriate conclusion.
A matter critical to her Honour's dispositive conclusion was Mr Tedeschi's "presentation as a witness in these proceedings": [1342]. While she found his evidence to be "unacceptable in many respects", she concluded that neither his evidence nor his presentation demonstrated that he was dishonestly concealing an improper motive. Rather, she thought, he was unable or unwilling to reflect on "the revealed errors in his approach, or to accept and acknowledge that he had been revealed to have breached his obligations as a prosecutor". Those conclusions were not shown to be wrong by "incontrovertible facts or uncontested testimony" or "glaringly improbable" or "contrary to compelling inferences".
Having considered the evidence in detail we agree with her Honour that Mr Tedeschi's explanation of his conduct in addressing A/Prof Cross' evidence is not so obviously untenable that it must be rejected.

The "carpark issue"

We have explained above at 31 that the "carpark issue", broadly put, related to the use by the appellant of a car belonging to Mr Rivkin on the night of Ms Byrne's death. The appellant said that he had walked past a Kings Cross carpark where, the Crown asserted, Mr Rivkin kept a number of vehicles (but where entry to access the vehicles was electronically monitored), and that he had walked to a building further away where Mr Rivkin also kept vehicles, which did not have the same level of electronic security. Confusingly, a third carpark, the ABC carpark (also in Kings Cross) was another place referred to in the evidence.
During the trial Mr Macmillan gave evidence that at the relevant time Mr Rivkin did not keep vehicles at the Kings Cross carpark. Mr Tedeschi nevertheless addressed the jury on the basis that they could take into account, as probative of the appellant's guilt, the fact that the appellant had walked past the Kings Cross carpark. In cross-examination before the primary judge Mr Tedeschi was asked about this matter at some length. Her Honour found: "[1253] 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 issue sought to be agitated about the carpark was squarely dealt with by her Honour: "[1256] Mr McClintock [senior counsel for the appellant in the civil proceedings] 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."
Her Honour's conclusion on this issue, after weighing all the relevant evidence, was clear: "[1260] 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 [Macmillian'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."
The "carpark issue" was again referred to by her Honour in her dispositive reasoning when she considered all of the circumstances of the case at [1341]. No error was shown in this finding. Without repeating all that we have said in relation to motive, her Honour saw and heard Mr Tedeschi give evidence over four days where he was questioned, in minute detail, about this issue. Her Honour was not satisfied that his evidence that he genuinely believed that he was entitled to put the "carpark issue" to the jury in the way he did was false or that the evidence was so obviously untenable that malice is the appropriate conclusion.
Having considered the evidence in detail we agree with her Honour that Mr Tedeschi's explanation is not so obviously untenable that it must be rejected. In a criminal trial of this complexity it is hardly surprising that errors about the content of evidence were made.

The "50 questions issue"

It will be recalled that Mr Tedeschi was trenchantly criticised by the primary judge for reading 50 questions to the jury which, so her Honour found, had the tendency to encourage the jury to reason by a reversal of the onus of proof: "[1286] 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."
Her Honour's resolution of this issue was impeccable. We agree with her Honour that it "cannot be ignored" that the approach taken by Mr Tedeschi was allowed by an experienced Supreme Court judge at the appellant's criminal trial. The approach was not the subject of objection by experienced senior counsel appearing for the appellant at his criminal trial. Her Honour found Mr Tedeschi's explanation "difficult to accept" but ultimately accepted Mr Tedeschi's explanation for his conduct in this respect as an equally probable explanation. Again, this was, in part, a demeanour-based credit finding, which was not shown to be wrong by "incontrovertible facts or uncontested testimony" or "glaringly improbable" or "contrary to compelling inferences".
Having considered the evidence in detail we agree with her Honour that Mr Tedeschi's explanation is not so obviously untenable that it must be rejected.

Conclusion and orders

This was a trial conducted over many months and it was itself concerned with a lengthy criminal trial which was examined by her Honour in forensic detail. Her Honour heard 22 days of evidence and submissions and considered a vast quantity of documentation.
Her Honour concluded that no reasonable and probable cause was shown for the prosecution of the appellant. In making that finding her Honour was extremely critical of aspects of the Crown case and of aspects of the conduct of the prosecution by Mr Tedeschi.
It is clear that in addressing malice the primary judge set out and applied the correct legal test and made detailed findings of fact about every one of the myriad issues put to her. No error has been shown in the way her Honour dealt with the issue of malice. Her Honour made a careful assessment of all of the evidence. A matter critical to her Honour's dispositive conclusion was Mr Tedeschi's "presentation as a witness in these proceedings" at [1342].
Her Honour's conclusion was not shown to be wrong by "incontrovertible facts or uncontested testimony" or "glaringly improbable" or "contrary to compelling inferences". Having examined the evidence in the case, we are comfortably satisfied that her Honour did not err in failing to find that Mr Tedeschi's explanations for his conduct were so untenable that they must be rejected. We go further. Her Honour was correct to conclude that malice was not established.
For the foregoing reasons we make the following orders: 1. Appeal dismissed; 2. Appellant to pay the costs of the respondent.

DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 20 December 2019

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