High profile prosecutor faces accusations

Deborah Cornwall | ABC 730 | 12 March 2012

Gordon Wood's murder conviction over the death of his girlfriend Caroline Byrne was quashed by the NSW Appeal Court leading to questions being asked about other cases overseen by prosecutor Mark Tedeschi.

Watch video here

CHRIS UHLMANN, PRESENTER: The career of Australia's highest flying prosecutor is under attack after a scathing judgment from the New South Wales Appeal Court which threw out the murder conviction of Sydney man Gordon Wood over the 1995 death of his girlfriend, model Caroline Byrne. Criminal lawyers have called for a sweeping review of the cases overseen by Crown Prosecutor Mark Tedeschi. He may face a formal complaint over his conduct after the appeal judges found he relied on fiction and dangerous reasoning in the Wood case. Reporter Deborah Cornwall has investigated other cases where the prosecutor has found himself accused.

DEBORAH CORNWALL, REPORTER: For more than two decades, Crown Prosecutor Mark Tedeschi has been the star performer at the most infamous murder trials in the country. From serial killer Ivan Milat and political assassin Phuong Ngo to the highly controversial case of baby killer Keli Lane.

POLICE OFFICER (May, 2003, police video): If something's happened to the child, now is the time to tell us.

KELI LANE, CONVICTED MURDERER: I don't know. Nothing happened. Nothing has happened to her.

DEBORAH CORNWALL: With so many scalps on his belt, it's hardly surprising Mark Tedeschi is a polarising figure, champion of crime victims and the prosecutor defence lawyers love to hate.

TIM ANDERSON, FORMER ANANDA MARGA MEMBER: It seems to me he's a zealot who wants to go for the win.

TONY BYRNE, FATHER OF CAROLINE BYRNE: Mr Tedeschi is a remarkable man.

DEBORAH CORNWALL: The murder conviction of Gordon Wood, one-time chauffeur to the late celebrity stockbroker Rene Rivkin was at the time one of his greatest triumphs.

JOURNALIST (Nov., 2008): ... be one the biggest wins you've had of your career, Mr Tedeschi?

MARK TEDESCHI, CROWN PROSECUTOR: Sorry, I can't comment.

DEBORAH CORNWALL: But two weeks ago, Tedeschi's brilliant career suddenly hit the wall. Three Appeal Court justices threw out the Wood conviction, ordering his release from jail immediately.

PETER MCCLELLAN, CHIEF JUSTICE, NSW COURT OF APPEAL: I have reviewed the whole of the evidence and have concluded that I am not satisfied beyond reasonable doubt that Gordon Wood murdered Caroline Byrne as charged.

DEBORAH CORNWALL: The appeal judges demolished the prosecution case in which Wood had been accused of hurling his girlfriend, model Caroline Byrne, to her death at The Gap, Sydney's most notorious suicide spot. But the most savage criticism was reserved for Mr Tedeschi, the judges accusing the prosecutor of failing his most basic obligations to put the case fairly to the jury. Instead, they said, Mr Tedeschi had tried to bolster the Crown case by resorting to fiction, impermissible reasoning and innuendo, including rumours Wood had been in a sexual relationship with Rivkin and a series of unsophisticated experiments which were used to convince the jury Caroline Byrne could not have committed suicide.

State prosecutor's reasoning in Wood trial 'dangerous'

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.

Rules of American justice: a tale of three cases

Glenn Greenwald  | salon.com | January 24, 2012

Developments in three legal cases, just from the last 24 hours, potently illuminate the Rules of American Justice. First, the Justice Department yesterday charged a former CIA agent, John Kiriakou, with four felony counts for having allegedly disclosed classified information to reporters about the CIA’s interrogation program. Included among those charges are two counts under the Espionage Act of 1917, based on the allegation that he disclosed information which he “had reason to believe could be used to the injury of the United States and to the advantage of any foreign nation.” Kiriakou made news in 2007 when he told ABC News that he led the team that captured accused Terrorist Abu Zubaydah and that the techniques to which Zubaydah was subjected, including waterboarding, clearly constituted “torture,” though he claimed they were effective and arguably justifiable. He’s also accused of being the source for a 2008 New York Times article that disclosed the name of one of Zubaydah’s CIA interrogators.

What’s most notable here is that this is now the sixth prosecution by the Obama administration of an accused leaker, and all six have been charged under the draconian, World-War-I era Espionage Act. As EFF’s Trevor Timm put it yesterday: this is the “6th time under Obama someone is charged with Espionage for leaking to a journalist. Before Obama: only 3 cases in history.” This is all accomplished by characterizing disclosures in American newspapers about America’s wrongdoing as “aiding the enemy” (the alleged enemy being informed is Al Qaeda, but the actual concern is that the American people learn what their government is doing). As The New York Times‘ Charlie Savage wrote this morning, Obama has brought “more such cases than all previous presidents combined,” and by doing so, has won the admiration of the CIA and other intelligence agencies which, above all else, loathe transparency (which happens to be the value that Obama vowed to provide more of than any President in history).

Also yesterday in American justice, a three-judge panel of a federal appellate court in Virginia upheld the dismissal of a lawsuit brought against Donald Rumsfeld and other Bush officials by Jose Padilla, the U.S. citizen who was imprisoned for almost three years without charges or even a lawyer and was systematically tortured to the point of permanent mental incapacitation. Padilla sued the former Defense Secretary on the ground that he had authorized Padilla’s illegal imprisonment and torture. The Obama DOJ vigorously defended Rumsfeld, arguing (a) that Rumsfeld is entitled to immunity on the ground that he had reason to believe his acts were legal and (b) an American citizen has no right to sue a government official for the treatment he receives as a designated “enemy combatant” — even if the treatment in question is torture and prolonged imprisonment without charges.

Trial By Media: The Justice System No One Wants You to Know About

William Fisher | Truthout, News Analysis | 25 December 2011

Remember Mike Nifong? Sure. He's the sleazebag former district attorney in the Duke University lacrosse team's rape scandal back in 2006. He made himself a short-lived hero by agreeing to prosecute members of the Duke Lacrosse team for allegedly raping an African-American exotic dancer the team had hired for a party.

But Nifong, hellbent on winning re-election, forgot that he was an officer of the court. He went public with a series of accusations that later turned out to be untrue; he exaggerated and intensified racial tensions; he unduly influenced the Durham police investigation; he tried to manipulate potential witnesses; he refused to hear exculpatory evidence prior to indictment - that regulations on the conduct of an identification exercise were breached by failure to include "dummy" photographs, that he had never spoken directly to the alleged victim about the accusations and that he made misleadingly incomplete presentations of various aspects of the evidence in the case (including DNA results).

He was dismissed from his job and later disbarred.

Or how about federal prosecutor William Welch, and his deputy chief, Brenda Morris, who convicted the late Sen. Ted Stevens - and helped their own cause by withholding evidence from the defense that could have helped the defendant.

Or there's Richard Convertino, the lead prosecutor in the so-called Detroit Sleeper Cell terrorism case. He was removed from the case on suspicion that he allegedly failed to turn over photographic evidence to the defense.

These acts and alleged acts by prosecutors all qualify as prosecutorial misconduct. There are hundreds of such cases in our justice system every year. Very few of them ever get such high visibility. In fact, most abuses of this kind probably go unnoticed and unreported. In the three cases referenced above, only Nifong lost his law license. The others did not.

But, since 9/11, there has been another kind of misconduct growing. It usually takes place outside the courtroom and is a favorite of politicians of both parties, especially if they are running for re-election.

This is the phenomenon of politicians and others with private agendas calling press conferences to launch inflammatory - and usually false or grossly exaggerated - claims about the importance of a given case to the national security of the United States.

Nightclub assailant protests he was the real victim

Geesche Jacobsen | SMH | 7 November 2011

An attacker's family links police response to the profile of the victim, writes Geesche Jacobsen.

WHEN Blake Markou was assaulted outside Souths Juniors about six years ago, needing stitches to his face, he says police told him to ''piss off'', rejecting the idea of taking a statement or trying to gather video footage of the incident.

But when he assaulted a young man in an Oxford Street nightclub in August 2009, he says while trying to defend a friend, police swung into action.

Markou and his family believe the difference in the police response is not because of the nature of the attack, but the identity of the victim: the then 19-year-old son of the senior Crown prosecutor, Margaret Cunneen, SC.

Her son, Matthew Wyllie, lost two teeth and had his upper jaw dislodged after being hit twice, by two men. He required four operations, including two bone grafts.

The case has involved a complaint to the Legal Services Commissioner, allegations of improper conduct, and an internal police investigation, and now the state's highest court will hear an appeal against one of its lowest penalties.

The complaints have been dismissed and police and the DPP are adamant the case was handled like any other, but Markou's mother, Linda, remains angry.


Margaret Cunneen ... her son was beaten up. Photo: Ben Rushton

''They should have arrested the whole bloody lot of them and charged them with affray,'' she said of the incident in the Nevermind nightclub when two groups of friends became involved in a confrontation.

''If I was in that position again, I probably would not do anything different,'' says Markou, now 27. ''I would jump in and help my mate.''

Markou was charged with assault occasioning grievous bodily harm, given stringent bail conditions and a curfew, which was checked by police on average every second night, around midnight, for four months.

The whole incident had lasted a few seconds, and the District Court Judge Michael Finnane found Mr Wyllie's injuries might have been caused by a hit from the second man. He convicted Markou of the lesser charge of assault occasioning actual bodily harm, sentencing him to a nine months intensive corrections order, a new penalty which has replaced periodic detention.

Markou is appealing the conviction and sentence in the Court of Criminal Appeal because it stops him from joining the army.

Two other men involved were dealt with in the local court and given good behaviour bonds.

Plucked from poor villages, boys land in jail

Natalie O'Brien and Cosima Marriner | SMH | 6 November 2011

Homecoming ... Faisal Arysad's mother and grandmother await his return. Photo: Rebecca Henschke

FAISAL ARYSAD was 16 when he was offered a job as a kitchen hand on what he was told was a fishing boat. The offer of $500 was a fortune - almost one year's pay - for the boy who lived with his mother and grandmother in a dirt-poor fishing village in West Timor.

When passengers boarded the boat, he was told it was for a sightseeing tour of the surrounding islands. The next he knew, he told his lawyers, their boat was picked up by an Australian navy ship and he was put in detention, then jail.

''The people smugglers simply get naive people, and the youths fall into that category,'' said Faisal's Brisbane lawyer, David Svoboda.



Sent home ... Ako Lani, 16, back fishing on Roti Island. After six months in an Australian adult jail, he was led into court in manacles. Photo: Rebecca Henschke

''These kids sit in villages with no work. Recruiters walk into the village offering $500. They tell them they'll be met by a ship to pick these people up at their destination. When a ship rolls in and it's full of cannons it's really surprising. These kids are genuinely surprised it's the Australian navy.''

Despite Faisal telling Immigration officials he was 16, the federal police did not believe him. They gave him a widely discredited wrist X-ray test which estimated his age to be about 19. The police charged him with people smuggling and he was put in the Arthur Gorrie maximum-security jail in Brisbane, which houses paedophiles including Robert John Fardon and Brett Peter Cowan, the accused killer of Daniel Morcombe.

But eight months later the charges have been withdrawn after Mr Svoboda flew to Indonesia to gather proof of Faisal's age.

CPS in crisis as allegations of suppressed evidence wreck trials

Rob Evans and Paul Lewis| The Guardian | 18 July 2011

Claims Crown's lawyers failed to disclose evidence in several cases, including the Mark Kennedy environmental activism affair.

Sir Christopher Rose, who retired as a judge in 2006, has been appointed to lead an inquiry into claims the CPS suppressed evidence. Photograph: UPPA

The Crown Prosecution Service faces a crisis following the abandonment of a series of trials after allegations of serious wrongdoing were made against its staff.

Senior officials at the CPS stand accused of repeatedly failing to meet their legal obligation to disclose crucial evidence and ensure fair trials.

Sir Christopher Rose, a former appeal court judge, has been appointed to lead an inquiry into claims the CPS suppressed evidence relating to the undercover police officer Mark Kennedy.

His inquiry will test whether prosecutors in the Kennedy case met the fundamental obligation of disclosure, to give lawyers for the accused any evidence that could assist their defence.

Just Doing Her Job

Simple Justice | 12 June 2011

"Sending a message" is a phrase heard with regularity in the legal system, whether from judges at sentence or prosecutors at arrest. Sometimes the message is about not harming others or you will be caught, prosecuted and punished. Other times, the message isn't nearly as clear, or as proper. Still, it's a message.

Walter Olson writes about such a case at Cato @ Liberty, one that may lack the panache of blood and guts that tends to get blood boiling, but one that's particularly pernicious.

The Stevens case arose after the Food and Drug Administration investigated GSK’s marketing of the drug Wellbutrin. Lawyers, responding on behalf of the drugmaker, failed to furnish all the information the FDA considered itself entitled to, and federal prosecutors from the U.S. Department of Justice proceeded to “forage through confidential files” (as the judge later put it) in search of some sort of criminality to pin on Stevens, the team’s leader.

In her defense, Stevens said she had at all times relied in good faith on information provided her by company employees and had consulted and followed other lawyers’ advice on doubtful issues. Not good enough: the feds proceeded to charge her with six counts, including making false statements, obstructing justice, and concealing documents.

What makes this particularly troubling is the dynamic that drives financial and corporate criminal law investigations, where decisions are made by committee, invariably risk averse and perceived by all to be only about business (read, "money") rather than right or wrong. A group of people whose butts are not on the line want to know how much it will cost to make the problem go away, happy to throw the beloved and soon to be martyred former corporate lawyer or executive under the bus.

Say you're an oddball in corporate America, a person with a few scruples and the guts to say "no" occasionally. Whispering in the ear of the board members are some specialists working at a thousand lawyer firm, still bearing the stink of their last job at the Department of Justice, that they must capitulate, cooperate, get on their knees and beg the government for mercy. There's no other way. No one ever wins.

Then there's someone who never sucked on the government teet saying,

but we did nothing wrong. Nothing. We must stand up to the demands of prosecutors who are clueless about our corporation, our industry, and who want to dictate corporate decisionmaking. This is the time to take a stand.

Outside counsel shudders in fear. Board members cower in the corner. Accountants crunch the numbers.

Lauren Stevens, former house counsel at SmithKlineGlaxo, showed resolve. She did her due diligence and arrived at the conclusion that displeased the government. She said no. She conducted an in-house investigation and concluded that there was no smoking gun proving her employer a raging criminal enterprise. 

Prosecutors faced turned dark red. No one says no to them. No one. Time to send a message.