Louise Hall, Geesche Jacobsen | SMH | February 25, 2012
THE state's top prosecutor, Mark Tedeschi, QC, has been strongly criticised for his conduct of the Gordon Wood trial, with the most senior of the appeal judges saying some of his reasoning was ''dangerous'' and ''entirely without foundation''.
Justice Peter McClellan found the trial miscarried because of Mr Tedeschi's closing address, in particular, his ''50 questions''.
''Asking questions, even in a rhetorical manner, and inviting the jury when considering its verdict to consider whether the applicant had provided satisfactory answers to the questions was an impermissible course for the prosecutor to follow,'' he said.
Justice McClellan said the submission that Caroline Byrne was thrown from The Gap using a ''shot-put action'' was ''an invention of the prosecutor … for which there was absolutely no support in the evidence''.
Nor was there evidence to support the proposition that Ms Byrne was killed because she knew confidential information about ''powerful people'', including the flamboyant stockbroker Rene Rivkin, for whom Mr Wood acted as chauffeur and personal assistant.
Rumours about a homosexual affair between the pair may have ''coloured'' the evidence, said Justice McClellan.
''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,'' he said
Late yesterday, the Director of Public Prosecutions declined to comment on the criticism of Mr Tedeschi, who is no stranger to controversy and criticism. In 1990 he prosecuted the Hilton bombing case against Tim Anderson - a prosecution which led to a complaint by the NSW Bar Association seeking a finding of professional misconduct against him.
Mr Anderson had been convicted of the murder of two garbage collectors and a police officer killed when the bomb exploded outside the Hilton hotel in February 1978.
The Court of Criminal Appeal ruled Mr Tedeschi's failure to recall Crown witness and confessed bomber Evan Pederick after a change of the prosecution case had been unfair to Mr Anderson.
When the Bar Association tried to have Mr Tedeschi disciplined, the Administrative Decisions Tribunal ruled his actions in the Anderson case did not amount to professional misconduct.
Mr Tedeschi came under review for his role in the prosecution of former police officer - now solicitor - Paul Kenny, in the late 1980s. Mr Kenny was charged, but found not guilty, of perverting the course of justice. Eventually, a review of the cases by a former judge found witnesses had given false evidence against Mr Kenny but ruled allegations that one witness had been induced by Mr Tedeschi and another prosecutor to give a false statement against Mr Kenny were false. While John Nader, QC, argued that Mr Tedeschi overstated the case against Mr Kenny, he said he had not breached standards of competence or ethics.
A recent case by Mr Tedeschi - that of Keli Lane who was convicted of killing her baby , Tegan - is subject to appeal, with the conduct of the prosecution likely to come under the spotlight.