Wood v State of New South Wales

1. [1]

   HER HONOUR: On 8 June 1995, the body of Caroline Byrne was found wedged between rocks at the base of a cliff at Watsons Bay; an area colloquially known as “the Gap”. On 3 May 2006 the plaintiff was charged with her murder.

2. [2]

   On 27 November 2008, after a trial before Barr J and a jury, the plaintiff was convicted of her murder. On 4 December 2008 he was sentenced to imprisonment for 17 years and 4 months with a non-parole period of 13 years.

3. [3]

   On 12 February 2012 the plaintiff’s conviction was quashed and a verdict of acquittal entered (Wood v R (2012) 84 NSWLR 581; [2012] NSWCCA 21).

4. [4]

   By an amended statement of claim filed on 21 February 2017, the plaintiff pleaded causes of action for a range of tortious conduct by a number of named individuals for whom it was alleged the Crown was vicariously liable under Pts 3 and 4 of the Law Reform (Vicarious Liability) Act 1983 (NSW) (“Vicarious Liability Act”). By operation of s 5 of the Crown Proceedings Act 1988 (NSW) the proceedings were brought against the Crown under the title “State of New South Wales”.

5. [5]

   The torts for which it was alleged the defendant was vicariously liable included malicious prosecution by a number of people who were alleged to have instituted and maintained the proceedings against the plaintiff for Ms Byrne's murder maliciously and without reasonable and probable cause. The plaintiff also sought an award of damages for what was alleged to have been misfeasance by Mr Nicholas Cowdery QC in his statutory office of the Director of Public Prosecutions for New South Wales in the decision he made on 1 March 2006 to prosecute the plaintiff for Ms Byrne's murder, damages for false imprisonment and abuse of process.

6. [6]

   On 20 February 2017, the first day of the hearing, a further amended statement of claim was filed. The claim for false imprisonment was not pursued on the amended pleadings.

7. [7]

   On 6 March 2017, during the course of the hearing, the pleadings were further amended by the filing of a second further amended statement of claim in which the claim for what was alleged to have been Mr Cowdery’s tortious conduct was formally abandoned, as was the claim for an abuse of process. The plaintiff’s contention that Sgt Mark Powderly, the police officer who recovered Ms Byrne’s body from the base of the Gap, and Det Sgt Brian Wyver (who now holds the rank of Detective Inspector), who conducted further investigations into her death at the Coroner’s request in 1998, were prosecutors for whose alleged tortious conduct the defendant was vicariously liable, was also withdrawn.

8. [8]

   By the second further amended statement of claim the plaintiff maintained his claim for damages for malicious prosecution by each of three prosecutors: Detective Inspector Mark Jacob, Mr Mark Tedeschi AM QC and Associate Professor Rodney Cross, forensic physicist, for whose tortious conduct he contends the defendant is vicariously liable under s 8 of the Vicarious Liability Act.

9. [9]

   The plaintiff’s reformulated case was formalised by the filing of what was referred to in the proceedings as the FASC on 6 March 2017. A defence to the FASC was filed on 21 February 2017 as the operative defence. The plaintiff’s Reply to Defence, filed on 23 February 2017, was taken to be the reply to the defence.

10. [10]

    The questions that arise for determination on the plaintiff’s reformulated case are limited to proof of the elements of the tort of malicious prosecution.

11. [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:

12. [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. These elements will be addressed at length later. Suffice to note at this time that malice is only established if the prosecutor's dominant purpose for bringing the proceedings has been demonstrated to be “other than the proper invocation of the criminal law" (see A v NSW at [91]). As to absence of reasonable and probable cause, the relevant question is whether the prosecutor had reasonable and probable cause to do what he or she did, not whether, irrespective of the prosecutor's actual knowledge or belief, there was reasonable and probable cause for a charge to be laid. An allegation as to the absence of reasonable and probable cause goes to the sufficiency of the material before the prosecutor at a particular time to warrant setting the processes of the criminal law in motion, or maintaining them.

The pleadings

1. [13]

   The plaintiff pleads his case in malicious prosecution referable to a set of particulars according to which he pleads both malice and an absence of reasonable and probable cause. Paragraph 16 of the FASC, under the subheading “Malice”, is expressed as follows.

2. [14]

   Thereafter, pars 16.1-16.73 are said to be the conduct of the defendant that evidences malice (with pars 16.52-16.72 specific to what is alleged to be Mr Tedeschi’s misconduct as the Crown Prosecutor at the plaintiff’s trial). Other particulars of malice refer to the conduct of each of the three alleged prosecutors.

3. [15]

   Paragraph 17 reads:

The standard of proof

1. [16]

   In order for the plaintiff’s claim for damages to succeed he is obliged to establish that he was prosecuted maliciously without reasonable and probable cause on the balance of probabilities. In determining whether the elements of the tort have been proved according to that standard, the matters enumerated under s 140(2) of the Evidence Act 1995 (NSW) need to be considered. They are:

2. [17]

   The parties accepted that s 140(2) gives effect to the settled principles in Briginshaw v Briginshaw (1938) 60 CLR 336; [1938] HCA 34 and their application to this case.

3. [18]

   Accordingly, in determining whether the gravity of the allegations made against each of the putative prosecutors as contended for by the plaintiff is made out to the Court’s reasonable satisfaction, the seriousness of the particular allegation, the inherent unlikelihood of a particular occurrence, and the gravity of the consequences flowing from an adverse finding are relevant considerations which will impact on whether the elements of the tort that are in issue have been proved.

4. [19]

   At 361-362 of the oft-cited judgment of Dixon J in Briginshaw, his Honour said:

5. [20]

   In Neat Holdings Pty Ltd v Karajan Holdings Pty Ltd (1992) 67 ALJR 170; [1992] HCA 66 Mason CJ, Brennan, Deane and Gaudron JJ, elaborating on what Dixon J said in Briginshaw, stated at [2]:

6. [21]

   In Palmer v Dolman [2005] NSWCA 361, Ipp JA (Tobias and Basten JJA agreeing), after considering the authorities and s 140 of the Evidence Act, said at [47]:

7. [22]

   An area of contention between the parties in final submissions was the manner in which competing explanations for a prosecutor’s conduct are to be resolved. The defendant submits, inter alia, that the plaintiff must exclude any reasonable explanation for a prosecutor’s conduct inconsistent with malice, while the plaintiff contends that it is sufficient that any serious allegations he makes be proved on the balance of probabilities.

8. [23]

   In support of the plaintiff’s contention, reference was made to Vu v New South Wales Crime Commission [2013] NSWCA 282 at [80] where, quoting Chamberlain v The Queen (No 2) (1984) 153 CLR 521; [1984] HCA 7 at [536]), McColl JA (with whom Meagher and Emmett JJA agreed) found that in considering whether an hypothesis was established on the balance of probabilities:

9. [24]

   Accordingly, the plaintiff contends that he is not obliged to “exclude” competing hypotheses for what is relied upon as conduct evidencing malice, but to show that an explanation is, in all the circumstances, the more probable.

10. [25]

    The plaintiff also relies upon Vu where, citing Doney v the Queen (1990) 171 CLR 207; [1990] HCA 51 at [8], the Court said:

11. [26]

    The defendant relied on State of New South Wales v Hathaway [2010] NSWCA 184. At first instance the appellant had been found to have maliciously prosecuted the respondent in respect of a charge relating to a knife. An issue was whether the trial judge’s finding that a police officer had brought those charges without reasonable and probable cause was properly reached having regard to the standard of proof, as to which the Court said at [263]:

12. [27]

    Clearly, the extracted paragraph from Hathaway above should be read in the context of what the High Court said in Neat Holdings as extracted at [20] above.

13. [28]

    Reliance was also placed on Morley v Australian Securities and Investments Commission (2010) 274 ALR 205; [2010] NSWCA 331 which the defendant correctly submitted was authority for the proposition that the graver the consequences of a particular finding, the stronger should be the evidence required to conclude that the allegation is established on the balance of probabilities.

14. [29]

    The defendant also sought to rely on Commonwealth of Australia v Fernando (2012) 200 FCR 1; [2012] FCAFC 18 where, at [129]-[130], the Court found:

15. [30]

    To the extent the defendant submitted that Fernando is authority for the proposition that the plaintiff must exclude any hypothesis available or open on the evidence before finding an unfavourable hypothesis proved, I am not satisfied that submission is correct. Competing hypotheses may be “open” but one of greater probability than another will allow a conclusion to be reached that, having regard to the matters to which reference must be made in s 140(2), it has been made out to the level of reasonable satisfaction.

16. [31]

    Proper consideration of the conclusion expressed at [130] in Fernando, when considered in the context of what the Full Court of the Federal Court said in Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia v Australian Competition and Consumer Commission (2007) 162 FCR 466; [2007] FCAFC 132, and which was extracted at [129] of Fernando, reveals that the Court was concerned with conflicting “open” hypotheses for conduct where those hypotheses were of equal degrees of probability. To accept, as I understand the defendant to submit, that Fernando is authority for the proposition that an open and favourable hypothesis must be excluded before accepting a competing open and unfavourable hypothesis, even if it is less likely, would be, in my view, to alter the applicable standard of proof.

The question of issue estoppel

1. [32]

   In the plaintiff’s Reply to the Defence he contends that because of what are said to be 52 separate “findings” of the Court of Criminal Appeal in Wood v R (“the appeal judgment”) the defendant is estopped from denying (or not admitting) a number of facts or conclusions of fact, pleaded in pars 16 and 17 of the FASC, as the facts or conclusions of fact the plaintiff relies upon to establish the elements of the tort of malicious prosecution against one, or more than one, of the prosecutors for whom he contends the defendant is vicariously liable.

2. [33]

   The plaintiff’s claim in issue estoppel is grounded in the proposition that each of what are said by him to be the 52 “findings” of the Court of Criminal Appeal were a “necessary conclusion” either in the Court being satisfied that the verdict of the jury was unreasonable or not supported by the evidence pursuant to s 6(1) of the Criminal Appeal Act 1912 (NSW), or that the verdict could not be maintained because various substantive grounds of appeal brought pursuant to s 5(1)(a) were upheld, each of which would have warranted the conviction being quashed and a new trial ordered had the Court not been satisfied that a verdict of acquittal should be entered.

3. [34]

   In the plaintiff’s written submissions, the 52 “findings”, identified as the matters of fact he contends the defendant is estopped from denying, were re-characterised as the “conclusions” reached by the Court in the appeal judgment (as to which see later).

4. [35]

   Each of the 52 “findings” (or “conclusions”) are identified in the Reply, referable to nominated paragraphs in the judgment of McClellan CJ at CL at [1]-[809]. While no issue estoppel is said to attach to any additional findings of either Latham J at [810]-[819] or Rothman J at [820]-[829], since their Honours expressed their agreement with the orders proposed by McClellan CJ at CL in the ultimate disposition of the appeal and with his Honour’s reasons for coming to that conclusion, the “findings” (or “conclusions”) said by the plaintiff to attract an issue estoppel, should be treated as the findings of the Court. In addition (although not said so by the plaintiff expressly), Latham and Rothman JJ should also be taken to have agreed with McClellan CJ at CL’s reasons for upholding the four substantive grounds of appeal that would have warranted the quashing of the plaintiff’s conviction and the ordering of a retrial.

5. [36]

   The plaintiff appealed his conviction under s 5 of the Criminal Appeal Act. Under s 5(1)(a) of the Criminal Appeal Act a person convicted on indictment may appeal on any ground which involves a question of law.

6. [37]

   Section 6(1) of the Criminal Appeal Act provides:

7. [38]

   The first ground of appeal, brought pursuant to s 6(1) of the Act, was that the verdict of the jury should be set aside as unreasonable or that it could not be supported having regard to the evidence. In the separate judgments of McClellan CJ at CL, Latham J and Rothman JJ, their Honours examined the sufficiency and quality of the evidence led by the Crown at the plaintiff’s trial in proof of its case that he murdered Ms Byrne, in accordance with the principled approach to an appeal brought pursuant to s 6(1) in SKA v The Queen (2011) 243 CLR 400; [2011] HCA 13.

8. [39]

   At [387]-[388] McClellan CJ at CL held:

9. [40]

   Latham and Rothman JJ agreed with his Honour’s conclusion and his reasons.

10. [41]

    The remaining grounds of appeal were as follows:

11. [42]

    Grounds 1, 6, 7, 8 and 9 were made out.

12. [43]

    Two aspects of the evidence upon which the Crown relied in proof of its case against the plaintiff were the subject of particular criticism by the Court in its consideration of both the sufficiency and quality of the evidence for the purposes of the first ground of appeal and the error the subject of Grounds 2 and 3.

13. [44]

    The first was what their Honours regarded as the unreliability of the identification evidence relied upon by the Crown to prove that the plaintiff was at Watsons Bay at the time of Ms Byrne's death (at 11:30pm on 7 June 1995 on the Crown case); a fact which was essential to the Crown satisfying the jury of the plaintiff’s guilt beyond reasonable doubt. The second aspect was what their Honours regarded as the lack of cogency in A/Prof Cross’s evidence (an expert witness called by the Crown) that Ms Byrne was thrown from the cliff in a “spear throw by a strong man” to disprove what the Crown accepted was the reasonable possibility that Ms Byrne committed suicide, an explanation for her death which the Crown accepted it was obliged to disprove beyond reasonable doubt if it was to prove its case that the plaintiff murdered her.

14. [45]

    These two issues, and the manifold deficiencies in the Crown’s case that were generated by doubts as the sufficiency and quality of the body of evidence which addressed them, coupled with what was described by McClellan CJ at CL at [19] as the deficiencies in the Crown case on the issue of motive (predicated in his Honour’s view on the Crown Prosecutor’s submissions that were impermissibly speculative and based on conjecture) led the Court to the unanimous finding that the first ground of appeal was made out and that the plaintiff’s conviction for murder should be quashed and a verdict of acquittal entered.

15. [46]

    The detailed analysis of the evidence led at trial in the judgment of McClellan CJ at CL at [49]-[388] in his consideration of the first ground of appeal, is eloquent of the factual complex underpinning the Crown case and the lengthy police investigation which preceded it. The consideration his Honour gave to the remaining eight grounds of appeal is also eloquent of the plaintiff’s complaint about the quality of the expert evidence adduced from A/Prof Cross (one of the putative prosecutors in these proceedings) and his credibility generally in light of the fresh evidence received on the hearing of the appeal (Grounds 3 and 9). It is also eloquent of the conduct of Mr Tedeschi as the Crown Prosecutor which the Court was satisfied undermined the fairness of the trial (Ground 6).

16. [47]

    It is both necessary and practical to resolve as a preliminary question whether any issue estoppel attaches to what the plaintiff identifies in his Reply as the 52 “findings” (or “conclusions”) of the Court of Criminal Appeal. It will also be necessary to resolve whether it would constitute an abuse of process for the defendant to deny (or not admit) what the plaintiff contends are those findings. A finding that issue estoppel attaches to some or all of what the plaintiff contends are the Court’s findings, or a finding that it would be an abuse of process for the defendant to put all or some of those matters in contest in these proceedings, will impact directly the ambit of issues of fact and law that are in dispute in these proceedings as it will, or might, influence their resolution.

17. [48]

    The plaintiff’s primary submission is that the pleading of issue estoppel in the Reply accords with what the High Court said in Tomlinson v Ramsey Food Processing Pty Ltd (2015) 256 CLR 507; [2015] HCA 28 concerning the operation of the doctrine of issue estoppel in Australia. The plaintiff submitted that because considerations of fairness and finality underpin its operation, issue estoppel may attach to any final judicial determination, irrespective of whether it arises in criminal appeal proceedings or civil proceedings. At [21]-[22], the Court observed:

18. [49]

    With the doctrine of issue estoppel in Australia understood in that way, the plaintiff submitted that the line of authority which culminated in Rogers v The Queen (1994) 181 CLR 251; [1994] HCA 42 should not preclude him from raising issue estoppel in his civil claim for damages for malicious prosecution, despite the facts that the plaintiff says the defendant is estopped from denying are facts found, or findings made, by the Court of Criminal Appeal in upholding his appeal against his conviction.

19. [50]

    Rogers is a decision which is said to have finally settled the question whether the outcome of criminal proceedings could give rise to an issue estoppel, either of fact or law, in civil proceedings between the same parties, either after a verdict is returned by a jury following a trial on indictment, or after a verdict is delivered by a judicial officer after a summary hearing or after a hearing on indictment under s 132 of the Criminal Procedure Act 1986 (NSW). By majority, the High Court held it did not.

20. [51]

    The plaintiff submitted that the appeal judgment in this case is “a final judgment in an adversarial proceeding” which is to be distinguished from the criminal proceedings the subject of consideration in Rogers and the earlier case of R v Storey (1978) 140 CLR 364; [1978] HCA 39. The plaintiff submitted that the appeal judgment is similar to a proceedings the subject of an application for judicial review which the authorities recognise as capable of giving rise to an issue estoppel, since here each of the nine grounds of appeal was a distinct challenge to the lawfulness of the plaintiff’s trial and the conviction which resulted from it, and each of the 52 “findings” or “conclusions” the Court reached in its reasons for upholding four of those grounds, is capable of attracting an issue estoppel for that reason.

21. [52]

    The plaintiff contends there is a clear identity of parties and an identity of issue (both issues being prerequisites for a successful claim of issue estoppel) between the proceedings initiated by the filing of a Notice of Appeal under the Criminal Appeal Act and the civil proceedings he brings by the filing of the FASC. That being the case, the plaintiff submitted that the concerns the High Court identified in Rogers at [17] as to the difficulties of applying issue estoppel in criminal proceedings consistently with the doctrine of mutuality and consistently with the availability and efficacy of other legal principles to address what might be said to be the injustice of permitting the Crown to relitigate issues finally settled in criminal proceedings, are not determinative of the question whether issue estoppel is a pleading available to him in this case. In short, the plaintiff submitted that as a matter of principle there is every justification for the appeal proceedings being treated as a criminal proceeding of a different character or type from the criminal proceedings on indictment or summary criminal proceedings, the proceedings with which the High Court was concerned in Rogers.

22. [53]

    In the alternative, the plaintiff submitted that it would be an abuse of process for the defendant to be permitted to deny, or to refuse to admit the “findings” or “conclusions” in the appeal judgment, since to do so would necessarily invite “the scandal of conflicting decisions” and put public confidence in the administration of criminal justice in jeopardy (Rogers at 255-7 per Mason CJ and at 280 per Deane and Gaudron JJ). The plaintiff also submitted that the decision in Blair v Curran (1939) 62 CLR 464; [1939] HCA 23 (one of the seminal authorities to which the plurality referred in Tomlinson) would be undermined were the defendant permitted to relitigate any of the “findings” or “conclusions” of the Court of Criminal Appeal identified in his Reply to the Defence.

23. [54]

    The defendant submitted that the decision in Tomlinson does not disturb the settled principle in Rogers that no issue estoppel attaches to criminal proceedings, and that it matters not that the criminal proceedings that resulted in the plaintiff’s acquittal were convened in the exercise of the Court’s statutory jurisdiction under the Criminal Appeal Act and not the outcome of criminal proceedings brought on indictment under s 8 of the Criminal Procedure Act, where a verdict of acquittal might follow a jury trial or a trial on indictment presided over by a judge.

24. [55]

    In any event, the defendant submitted the plurality in Tomlinson were not concerned with revisiting the question settled in Rogers but, as the judgment makes clear, to clarify the operation of the principle of issue estoppel in Australia by emphasising the need for strict adherence to the privity principle. As the Court emphasised, it is that principle which underpins the justice of binding a party to a prior proceeding by an issue estoppel in subsequent proceedings to which they are also party, it being assumed that they (or their privies) have been afforded the opportunity to present evidence and arguments material to the judicial determination from which the issue estoppel is said to arise. The defendant submitted that in circumstances where the Crown, as respondent to the plaintiff’s appeal against his conviction, chose (as it was entitled to) not to address the issues raised by the grounds of appeal by filing an affidavit from Mr Tedeschi (assuming that Mr Tedeschi could give evidence relevant to the issues to which the appeal gave rise, or some of them, as to which the defendant submitted there might be some question), it would be productive of injustice were the defendant, as the party vicariously liable for any proven tortious conduct on Mr Tedeschi’s part in these proceedings, to be prevented from relying upon his evidence in defence of that claim in circumstances where the question whether he acted maliciously and without reasonable and probable cause are the very matters that are in dispute.

25. [56]

    The defendant submitted that, in any event, the views expressed by McClellan CJ at CL in the appeal judgment concerning Mr Tedeschi’s conduct (including his Honour’s finding that Mr Tedeschi acted in breach of his duties as a prosecutor when exercising the Court’s statutory jurisdiction under the Criminal Appeal Act to determine, inter alia, whether the trial miscarried) involved considerations materially different from the question whether the plaintiff has discharged the onus of satisfying the Court in these proceedings that Mr Tedeschi acted maliciously and without reasonable and probable cause in instituting and maintaining the criminal proceedings against the plaintiff through to verdict. The defendant submitted, for that reason, that no issue estoppel can attach to the Court’s finding that Mr Tedeschi acted in breach of his duties as a prosecutor, whether in the manner and form of his closing submissions to the jury or otherwise.

26. [57]

    The defendant acknowledged that it is well recognised that abuse of process is a more flexible doctrine than issue estoppel, and that the categories of abuse that might attract its application are not closed. The defendant submitted, however, that it would not be an abuse of process for it to seek to contradict some of the findings made, conclusions reached or even the views expressed by the Court in the appeal judgment, since to do so would neither be oppressive to the plaintiff nor would it bring the administration of justice into disrepute (see Batistatos v Roads and Traffic Authority (NSW) (2006) 226 CLR 256; [2006] HCA 27 at [1], [9]; PNJ v The Queen (2009) 193 A Crim R 54; [2009] HCA 6 at [3]).

27. [58]

    The defendant submitted that the approach it has taken in its filed defence does not challenge the finality of the Court of Criminal Appeal’s finding that the jury’s verdict was unreasonable and could not be supported having regard to the evidence led at trial. Neither does it challenge the order quashing the plaintiff’s conviction or the verdict of acquittal that was entered. The defendant further submitted that the approach it has taken in these proceedings does not challenge the Court’s determination that the plaintiff’s trial miscarried for the reasons the Court gave in upholding the four substantive grounds of appeal, inter alia, by reason of errors made by the trial judge (Grounds 7 and 8) or the conduct of Mr Tedeschi as the Crown Prosecutor (Ground 6). Rather, the defendant submits it is entitled to demonstrate that the plaintiff has not satisfied the doctrinal requirements of issue estoppel according to the strict principles which govern its operation.

28. [59]

    Underpinning that submission is the uncontroversial proposition that the Court of Criminal Appeal was not concerned with whether the criminal proceedings against the plaintiff were instituted or maintained maliciously and without reasonable and probable cause by a prosecutor or prosecutors as to whose tortious conduct the defendant might be vicariously liable. The Court was concerned with whether, after an adjudication on the soundness of the jury’s verdict in accordance with the principled approach in SKA, the plaintiff’s conviction should be set aside in exercise of the Court’s statutory jurisdiction under s 6(1) of the Criminal Appeal Act and/or whether the trial had miscarried and whether a retrial should be ordered in exercise of its jurisdiction under s 5 of the Criminal Appeal Act.

29. [60]

    In summary, it is the defendant’s submission that because neither the principles of issue estoppel nor abuse of process have any relevant application in proceedings where the issue is whether the plaintiff has discharged the civil onus of proving, consistent with the principles in Briginshaw, that he was prosecuted for Ms Byrne's murder maliciously and without reasonable and probable cause, it is not precluded in defence of that claim from inviting this Court to make different findings of fact (and/or mixed fact and law) to those made by the Court of Criminal Appeal in exercise of its jurisdiction under the Criminal Appeal Act.

30. [61]

    In resolving whether the defendant is estopped in respect of all, some or none of what are said by the plaintiff in his Reply to be the 52 findings (or conclusions) in the appeal judgment, it is for the plaintiff to demonstrate that three fundamental requirements are satisfied in respect of each of them.

31. [62]

    In Kuligowski v Metrobus (2004) 220 CLR 363; [2004] HCA 34 at [21] (adopting Lord Guest’s formulation of the elements in Carl Zeiss Stiftung v Rayner & Keeler Ltd (No 2) [1967] 1 AC 853 at 935) the High Court identified the three essential requirements of an issue estoppel as:

32. [63]

    The satisfaction of the second requirement is not in contention in these proceedings. In Grierson v The Queen (1938) 60 CLR 431; [1938] HCA 45 at 434 Rich J observed that a person’s entitlement to appeal to the Court of Criminal Appeal from a criminal conviction or sentence was founded in the Criminal Appeal Act, concluding at 434 that “the jurisdiction of the Court of Criminal Appeal is confined within the limits of the Act, and that when the Court has heard an appeal on its merits and given its decision the appeal cannot be re-opened”.

33. [64]

    At 435-436 Dixon J stated:

34. [65]

    The controversy centred on the first and third requirements of issue estoppel.

35. [66]

    Aside from the controversy arising from the plaintiff’s submission that issue estoppel can arise from the final determination of criminal appeal proceedings and that Rogers can be distinguished on that basis, the defendant submitted that the legal and factual issues that presented for determination in the appeal proceedings, and those that present in these proceedings, are fundamentally different. This is said to follow not least because the evidential and legal framework within which the legal and factual issues were litigated in the Court of Criminal Appeal, and those that are being litigated in these proceedings, differ in fundamental respects.

36. [67]

    So far as the evidential framework is concerned, the evidence adduced by the Crown at trial and the evidence adduced on the Appeal (the evidence upon which the judgment of the Court of Criminal Appeal was predicated) was supplemented in these proceedings by a vast quantity of evidence tendered by both parties as relevant to the particular legal and factual issues that arise on the pleadings and the way the proceedings were conducted. The additional evidence included evidence from Mr Tedeschi in each of his three statements (the third in excess of 100 pages) and his evidence under cross-examination in which he addressed the plaintiff’s claim that his conduct was tortious, in particular that his conduct as the Crown Prosecutor at the plaintiff’s trial evidenced malice.

37. [68]

    The defendant also adduced evidence from Det Insp Jacob and A/Prof Cross in which they addressed their respective roles in the investigation into Ms Byrne's death prior to the formal institution of the criminal proceedings against the plaintiff for her murder following Mr Tedeschi’s advice to Mr Cowdery as the Director of Public Prosecutions in February 2006 that a prosecution should be commenced. Their evidence was in addition to the evidence they each gave in the appeal proceedings. Their evidence was adduced by the defendant, inter alia, to meet the plaintiff’s case that they were also prosecutors to whom liability for malicious prosecution should attach.

38. [69]

    In the submissions filed by the parties in November 2016 (at a time when it was proposed by the defendant that the question of issue estoppel and abuse of process should be heard and determined as a separate question under r 28.2 of the Uniform Civil Procedure Rules 2005 (NSW)), the defendant observed that if the issue(s) estoppel pleaded in respect of the 52 “findings” or “conclusions” in the Reply were upheld, Mr Tedeschi and A/Prof Cross would be effectively deprived of the opportunity of giving any evidence in answer to the adverse findings made by the Court of Criminal Appeal, both as to their credit and their professional reputations. Upon it being resolved, inter partes, that the defendant’s application for the determination of the separate question would not be pressed (it being the agreed position that it was not possible for the Court to meaningfully resolve whether issue estoppel attached to any or all of the findings pleaded in the Reply until the evidence in the proceedings was tendered or adduced, and until the matters said to attract an issue estoppel were revealed by the conduct of the defendant’s case) it would appear that no further thought was given to the impact of the plaintiff’s claim of issue estoppel before Mr Neil SC opened the defendant’s case and evidence was called from each of Det Insp Jacob, A/Prof Cross and Mr Tedeschi. It was not until final submissions that the issue was revisited.

39. [70]

    Understandably, Mr McClintock SC’s cross-examination of each of Mr Tedeschi, Det Insp Jacob and A/Prof Cross was conducted on the basis that the defendant was not estopped from putting in contest any of what were said by the plaintiff to be the 52 “findings” or “conclusions” in the appeal judgment. In particular, the cross-examination of Mr Tedeschi was conducted on the basis that the defendant was not estopped from putting in contest the Court’s finding that the plaintiff was denied a fair trial because of his failure in his closing submissions to comply with prosecutorial standards, and that in other respects he had misconducted himself as the Crown Prosecutor in his conduct of the plaintiff’s trial. The structure of Mr McClintock’s cross-examination of Mr Tedeschi sought to expose him as having repeatedly and deliberately breached prosecutorial standards of fairness in his preparation of the Crown case for trial and in his conduct of the trial in multiple respects additional to the adverse findings by the Court of Criminal Appeal to make good the submission, ultimately put, that his conduct as a prosecutor was evidence of malice.

40. [71]

    In their written submissions, neither of the parties addressed how the Court should approach the evidence of Mr Tedeschi, A/Prof Cross or Det Insp Jacob in the event that the defendant is estopped from denying (or not admitting) all or some of the findings of the Court of Criminal Appeal. In addition, in the event that all three were found to be prosecutors, neither of the parties addressed which (if any) of the 52 “findings” or “conclusions” are relevant to or eloquent proof of malice in the institution and maintenance of proceedings against the plaintiff without reasonable and probable cause. Instead, the final submissions of both parties were predicated on the assumption that the evidence of each of the three alleged prosecutors was available to be considered on that question without any qualification as to what it was capable of proving about the legal elements of the tort of malicious prosecution.

41. [72]

    It was only in the defendant’s final written submissions that the matters raised in the Reply were dealt with comprehensively. Those submissions supplemented the submissions the defendant furnished in support of the application for the determination of the separate question in 2016. The plaintiff advanced no submissions additional to those furnished on the defendant’s application for the determination of the separate question in November 2016, save as to assert in pars 611 and 612 of his final submissions that he relied upon all of the pleaded “findings” of the Court of Criminal Appeal to establish an “objective” absence of reasonable and probable cause by each of Mr Tedeschi, Det Insp Jacob and A/Prof Cross and all of the findings “against Mr Tedeschi and A/Prof Cross” to prove malice and the “subjective” absence of reasonable and probable cause.

42. [73]

    In its submissions, the defendant emphasised that it is the plaintiff’s obligation to identify, and with precision, the identity of issue between the findings relied upon in the appeal judgement and the issues that are the subject of contest in these proceedings to which the issue estoppel is said to attach, together with the requirement that the plaintiff establish an identity of parties in each of the proceedings. In the defendant’s submission the plaintiff has failed to do both.

43. [74]

    Upon the analysis which follows, the plaintiff’s failure to analyse and articulate in unambiguous terms the basis upon which there is said to be an identity of issue between the appeal proceedings and these proceedings is exposed, a failure which I am satisfied is fatal to his claim in issue estoppel. This is in part due to his failure to do any more than to baldly assert what was put at pars 611 and 612 of his submissions rather than to demonstrate how each of the 52 “findings” or “conclusions” of the Court of Criminal Appeal pleaded in the Reply are issues that necessarily arise for determination in these proceedings and that those issues are identical to those “findings” or “conclusions”.

44. [75]

    In Ramsay v Pigram (1968) 118 CLR 271; [1968] HCA 34, at 276, Barwick CJ encapsulated what is involved in identifying the relevant identity of issues between two proceedings in the following way:

45. [76]

    The same citation is relevant to the separate requirement that the plaintiff establish an identity of parties (as to which see later at [134]).

46. [77]

    As the plurality in Kuligowski observed at [47], while it is immaterial to an assessment as to whether the doctrine of issue estoppel applies that there may be difficulties in identifying, with precision, the evidence that was accepted or rejected by the Court in the prior proceedings in the course of reaching a decision as to matters of fact or law that were in issue, as the extract from the judgment of Barwick CJ in Ramsay v Pigram at 276 makes clear, for an estoppel to operate, the identity of issue must be certain.

47. [78]

    A related feature of the inquiry into whether the plaintiff has demonstrated a precise identity of issue between what was determined in the appeal judgment and the issue(s) in these proceedings involves the Court making an assessment of the quality or the nature of the particular “finding” or “conclusion” in the appeal judgment to which an issue estoppel is said to attach.

48. [79]

    In Blair v Curran at 532-3 Dixon J described the quality of the issue that must be present to give rise to issue estoppel in the following terms:

49. [80]

    The difficulty inherent in the application of these concepts is to distinguish the matters fundamental or cardinal to the prior decision or judgment, decree or order (or necessarily involved in it as its legal justification or foundation) from matters which, even though actually raised and decided as the determining considerations, are not in point of law the essential foundation or groundwork of the judgment, decree or order.

50. [81]

    The plaintiff’s obligation to demonstrate the requisite identity of issue for issue estoppel to attach to any of the 52 “findings” or “conclusions” of the Court of Criminal Appeal, necessarily requires him to identify the nature of the issue or issues of fact, law or mixed fact and law ultimately decided in the appeal judgment as fundamental to the Court’s decision to uphold those grounds of appeal which were successfully made out. This analytical exercise is essential since, as Dixon J observed in the passage extracted at [79] above, it is only those matters that are susceptible to being properly understood as matters “finally and conclusively established” to which an issue estoppel might attach.

51. [82]

    Consistent with the analysis of Dixon J in Blair v Curran, the issues which it was necessary for the Court of Criminal Appeal to decide in disposition of the plaintiff’s appeal, and those which were actually decided as the groundwork of the decision, are those matters of fact or law that were legally indispensable to it. Although some matters of fact or law might have been raised on the hearing of the appeal, and even referred to in the Court’s decision, issue estoppel will only attach to those that are legally indispensable to the decision.

52. [83]

    It is also critical to distinguish between evidentiary facts (even those facts that are building blocks to proof of an ultimate issue) and ultimate facts which are foundational to the decision or judgment in the prior proceeding. In Egri v DRG Australia Ltd (1988) 19 NSWLR 600 at 603 McHugh J held that:

53. [84]

    In identifying those matters that are “finally and conclusively established” in the prior proceedings, the High Court observed in Kuligowski:

54. [85]

    For the plaintiff to make good his claim that each of the 52 “findings” or “conclusions” identified in the Reply and said to give rise to an issue estoppel, the onus was his to satisfy the Court that they were each findings of fact, or mixed fact and law, foundational (in the sense of being legally indispensable) to the Court being satisfied that Grounds 1, 6, 7, 8 and 9 of the plaintiff’s conviction appeal were made out, and then to make good the submission that they were relevantly identical to the issues that arise for determination in these proceedings.

55. [86]

    As I have observed earlier, no analysis to make good that submission was undertaken with anything like the necessary rigour by the plaintiff in the submissions filed in April 2016 or his submissions filed in May 2017 in reply to the defendant’s submissions. No oral submissions were directed to the question of issue estoppel or abuse of process at all. The plaintiff’s 2016 submissions went no further than to assert that each of the paragraphs in the Reply pleaded as “findings” (each being referable to nominated paragraphs in McClellan CJ at CL’s judgment) were ultimate issues of fact or law decided by the Court because they were each a “conclusion”, being an “essential foundation” or “essential groundwork” (the terms were used interchangeably) to upholding either Ground 1, 6, 7, 8 or 9 of the appeal, which if put in issue (in the civil proceedings) would necessarily put in issue the correctness of the appeal judgment.

56. [87]

    The plaintiff’s submissions then addressed how, in the alternative, it would be an abuse of process to allow the defendant to deny the “conclusion”, in each case because to do so would undermine the plaintiff’s acquittal (Ground1) and the Court’s ruling that the trial miscarried (Grounds 6,7 8 or 9).

57. [88]

    While it does not appear that anything turns on the plaintiff having recast the “findings” in the Reply as “conclusions” in the written submissions, the cursory way the plaintiff addressed the pleading of issue estoppel and abuse of process in counsel’s final submissions left a number of fundamental questions unaddressed, not the least whether any of the “findings” or “conclusions” which the plaintiff contends the defendant is estopped from denying were ultimately put in issue in these proceedings and, if so, which of them. It is not for the Court to sift through and separate from the catalogue of matters addressed in over 200 pages of submissions which of the class of 52 “findings” or “conclusions” were ultimately matters in issue, in whole or in part.

58. [89]

    By way of example, the following submission was advanced in 2016 referable to par 16 of the Reply:

59. [90]

    There was no issue in these proceedings that the photograph which became Ex DJ was not taken on or about 1996, as captioned, but in 2003.

60. [91]

    By way of further example, the following submission was put in 2016 referable to par 19 of the Reply:

61. [92]

    There was no issue in the proceedings as to the terms of the toxicological report or its accuracy.

62. [93]

    A more egregious example is the following submission put in 2016 referable to par 23 of the Reply:

63. [94]

    What has not been accounted for in the plaintiff maintaining the submission that each of the 52 “findings” or “conclusions” are relied upon to establish an objective and/or subjective absence of reasonable and probable cause in the prosecution of him by each of Mr Tedeschi, Det Insp Jacob and A/Prof Cross (and that all of the findings as they concern Mr Tedeschi and A/Prof Cross are relied upon in proof of their malice such that the defendant is issue estopped from denying any of them) is that it was at the plaintiff’s initiative in the course of the hearing, that par 16.51 of the FASC was amended so as to contend only that Det Insp Jacob did not disclose to the plaintiff’s lawyers the criminal history of Angelo Georgiou before or during the trial. As amended that paragraph reads as follows:

64. [95]

    There was no corresponding amendment to the pleading in par 23 of the Reply, or any modification or qualification of the submission concerning it.

65. [96]

    It is not for the defendant, and even less for the Court, to attempt to align the “conclusions” or the “findings” pleaded in the Reply as attracting an issue estoppel with what are said by the plaintiff to be foundational or essential groundwork to the Court’s decision in the appeal judgment, or with the plaintiff’s pleaded case in the FASC, or to attempt to align them with the matters ultimately put in issue in the proceedings as reflected in final submissions.

66. [97]

    In the plaintiff’s 2016 submissions, the argument that was advanced and said to be in conformity with the principled approach in Blair v Curran was that because the Court of Criminal Appeal was required to inquire into the nature of the evidence led at trial and the conduct of the trial and, because the Court concluded that the evidence did not support a finding of guilt beyond reasonable doubt and that the conduct of the trial was, in particular respects, productive of unfairness, it follows that each of the 52 findings that were foundational to, or the essential groundwork in the disposition of the appeal, are the ultimate issues of fact or law for the purposes of issue estoppel. As noted above, in his final submissions the plaintiff’s counsel did not revisit the requirement that there be a demonstrated identity of issue between the ultimate issue of fact or law in the appeal judgment and the issues in these proceedings, and no oral submissions were directed to the specific issues raised by the matters pleaded in the Reply at all.

67. [98]

    At pars 495-502 of the defendant’s final submissions the difficulties that were encountered in meeting the plaintiff’s implied assertion that the pleadings served to identify the issues to which the estoppels are said to attach were detailed. They included:

    1. (1)

       The defendant is entitled to proceed on the assumption that the matters of fact alleged in pars 16 and 17 of the FASC are what the plaintiff relies on as the basis of his civil claim for damages. The Reply cannot serve that purpose since none of the paragraphs in the Reply are, in a positive sense, responsive to any matters of fact raised in the filed Defence.

    2. (2)

       The plaintiff has failed to demonstrate how each or any of the “findings”, “conclusions” or “propositions” from the appeal judgment necessarily arise for determination in the plaintiff’s civil claim. The breadth of the claim that they all do will not suffice. The lack of specificity deprives the submission of any persuasive weight.

    3. (3)

       The fact that some of the “findings”, “conclusions” or “propositions” extracted from the judgment of McClellan CJ at CL might be relevant to whether the plaintiff can prove the legal elements of the tort of malicious prosecution against one, or more than one, of the alleged prosecutors against whom he alleges tortious conduct is not enough for the defendant to be estopped from contending that those “findings”, “conclusions” or “propositions” do not bind it as a party to the civil proceedings.

    4. (4)

       The “findings”, “conclusions” or “propositions” cited in the Reply as attracting an issue estoppel are sourced, verbatim, from the reasons of McClellan CJ at CL, although many are deprived of the context from which they acquire their meaning and all lack the precision necessary to create the identity of issue fundamental to an issue estoppel.

68. [99]

    In my view, each of these submissions is well made. A further and fundamental problem inherent in the pleadings is the plaintiff’s failure to identify, with the requisite precision, the relationship between the facts alleged in pars 16 and 17 of the FASC and proof of the legal elements of the tort of malicious prosecution and/or how each of what are said to be the 52 “findings” or “conclusions” in the appeal judgment in the Reply are relevant to proof of those elements, either directly or by inference. Without forging that evidential link, the requirement that there be a precise identity of issue between the findings or conclusions in prior (criminal) proceedings and the later (civil) proceedings before an issue estoppel can attach is not made out.

69. [100]

    Save as to state in the plaintiff’s submissions in reply that the plaintiff “joins issue” with the defendant’s submissions summarised at [98] above, there was no attempt to grapple with what the defendant identified in its submissions as significant discrepancies between the FASC and the Reply due, in part, the defendant submitted, because the “findings” or “conclusions” in the Reply do not correspond with relevant paragraphs in the FASC, and no attempt was made to demonstrate how each of the 52 “findings”, “conclusions” or “propositions” extracted from the appeal judgment necessarily arise for determination in the civil proceedings.

70. [101]

    By way of example the defendant submitted as follows:

71. [102]

    For the plaintiff to submit in reply to the defendant’s submission extracted above that the determination by the Court of Criminal Appeal that there was insufficient evidence to establish beyond reasonable doubt that Ms Byrne took her own life is a necessary consideration in determining the allegation pleaded in par 16.8 reflects a fundamental failure to appreciate the plaintiff’s obligation to demonstrate, as a doctrinal prerequisite to establishing issue estoppel, a precise identity of issue between the matter to which the estoppel is said to attach and a matter in issue in the civil proceedings. The lack of clarity in the analysis of the plaintiff’s counsel in final submissions appears to stem both from a failure to appreciate the need for the pleadings to be the source of that precision, and a failure to appreciate the particular legal context in which the issues of fact and law that presented for adjudication on the appeal arose, and how they were resolved by the Court in exercise of its statutory jurisdiction under the Criminal Appeal Act.

72. [103]

    Further, the difference between the specific legal and factual issues that framed the Court’s consideration of Ground 1 on the appeal, and the legal and factual issues that frame the plaintiff’s civil claim for damages in these proceedings, were not addressed in the plaintiff’s submissions and no analysis was applied to them.

73. [104]

    The issues raised by the plaintiff’s appeal against conviction and the resolution of those issues in the appeal judgment need to be understood in the context of the specific legal and factual issues that governed the appeal and the evidence that was available to the Court of Criminal Appeal on the hearing of the appeal. What is critical to appreciate is that the reasoning employed by McClellan CJ at CL in concluding that each of Grounds 1,6,7,8 and 9 were made out cannot be divorced from both the general context in which the issues raised by those grounds of appeal arose for adjudication, namely a jury trial where the Crown had the burden of proving guilt beyond reasonable doubt, coupled with the legal and factual context framing the various grounds of appeal.

74. [105]

    As I have already emphasised, Ground 1 was an appeal brought pursuant to s 6(1) of the Criminal Appeal Act which contended that the verdict of the jury should be set aside because it was unreasonable, or could not be supported having regard to the evidence.

75. [106]

    In SKA the High Court considered the nature of such an appeal. The majority of the Court (French CJ, Gummow and Kiefel JJ) held, following M v The Queen (1994) 181 CLR 487; [1994] HCA 63 at 493, that the appellate court was to determine for itself, weighing the whole of the evidence led at trial, whether the evidence was such that it was open to a jury to conclude beyond reasonable doubt that the applicant was guilty of the offence(s) with which they were charged. Consistently with the approach in M, their Honours at [406] described the appellate court as undertaking an independent assessment of the evidence led at trial, both as to its sufficiency and its quality, in order to determine whether, notwithstanding that there is evidence upon which a jury might convict, in all the circumstances it would be dangerous to allow the verdict of guilty to stand.

76. [107]

    In the plaintiff’s appeal, the Court adopted the approach described in SKA and M (see [49] of the judgment of McClellan CJ at CL). In undertaking an assessment of the whole of the evidence led at trial, his Honour emphasised that the Crown case was entirely circumstantial in the sense that:

77. [108]

    His Honour explained the approach of the Court to making an assessment of a case based on circumstantial evidence at [53] in the following terms:

78. [109]

    After assessing all of the evidence led at the plaintiff’s trial and the inferences capable of being drawn from that evidence, his Honour concluded that he was not satisfied beyond reasonable doubt of the plaintiff's guilt and, for that reason, the verdict of the jury could not be maintained. The reasoning his Honour employed in reaching that conclusion was summarised at [56]:

79. [110]

    By way of further example, par 16.56 of the FASC reads as follows:

80. [111]

    While it is clear enough that the fact that is asserted in par 16.56 is that Mr Tedeschi and Det Insp Jacob must reasonably have had doubts about the sufficiency of the Crown’s circumstantial evidence case, and that for that reason they prosecuted the plaintiff without reasonable and probable cause, it is only in the pleading of issue estoppel in the Reply that the phrasing of the nature and extent of the doubt they should have had and that the defendant is estopped from denying, is shown to have been drawn directly from the judgment of McClellan CJ at CL.

81. [112]

    Paragraph 27 of the Reply is expressed as follows:

82. [113]

    In relying on this aspect of his Honour’s judgment as a “finding” or “conclusion” which the defendant is estopped from denying, what the plaintiff seemingly ignores is what his Honour was at pains to emphasise, namely that his view was formed after applying his analysis to all of the evidence relied upon by the Crown at trial and, most critically, through the prism of the jury’s verdict. This is the legal task mandated by the High Court in SKA as the approach an appellate Court is obliged to take to its statutory function under s 6(1) of the Criminal Appeal Act. It is a discrete task inherently different from the resolution of the legal and factual issues raised by the plaintiff’s civil claim for damages for malicious prosecution.

83. [114]

    Later in McClellan CJ at CL’s judgment, his Honour referred to the Court’s obligation to consider the sufficiency and quality of the circumstantial evidence relied upon by the Crown to support and sustain the jury’s verdict:

84. [115]

    At [386]-[387] his Honour's ultimate conclusions were expressed as follows:

85. [116]

    At par 3 of the Reply the plaintiff cites [386] of the judgment as the source of the Court’s “finding” that the evidence adduced at the plaintiff’s trial did not establish beyond reasonable doubt that Ms Byrne did not take her own life. I have already noted the plaintiff’s reliance on that paragraph as the source of what is said to be one of 52 “findings” the defendant is estopped from denying and the plaintiff’s apparent failure to appreciate the obligation imposed on him to identify, within that finding, a precise identity of issue with an issue in the civil proceedings.

86. [117]

    The two passages from McClellan CJ at CL’s judgment extracted above also exemplify the plaintiff’s failure to exercise necessary caution when extracting particular phrases from the judgment of McClellan CJ at CL and relying upon them as “findings” to which it is said an issue estoppel attaches (or when paraphrasing his Honour’s reasoning for the same purpose). This has led to what I regard as a generalised lack of precision in the identification of issue between the “findings” of the appeal court and the matters in issue in these proceedings as a prerequisite in making good a claim that issue estoppel attaches.

87. [118]

    As a composite pleading, what the plaintiff has failed to confront in those paragraphs of the Reply where reliance is placed upon his Honour’s “findings” or “conclusions” in dealing with Ground 1, is that the exercise McClellan CJ at CL was engaged in was an assessment, through the prism of the jury’s verdict, of the evidence for what it was capable of proving about the facts in issue at the plaintiff’s trial and whether, in the ultimate, the evidence was capable of proving the plaintiff’s guilt beyond reasonable doubt. If, after having reviewed the evidence for its sufficiency on this basis, including the nature and quality of the evidence and its reliability, the Court expresses a doubt as to guilt, it will usually conclude that the jury should also have experienced that doubt, unless the jury's advantage in seeing and hearing the evidence can account for the difference.

88. [119]

    While in the exercise of its jurisdiction under s 6(1) of the Criminal Appeal Act the Court is engaged in a fact finding exercise, the Court of Criminal Appeal did not convene a re-hearing of the trial. As the High Court emphasised in Grierson in the passage extracted above at [64], the jurisdiction being exercised when hearing an appeal against conviction is wholly statutory. The exercise of that jurisdiction is also evaluative, with the burden on the appellant of persuading the Court that appellate intervention is called for, and with the task to be undertaken by the Court being referable to its assessment of the evidence available at the conclusion of the trial, and to the criminal burden and standard of proof.

89. [120]

    In the way McClellan CJ at CL expressed himself when considering the factual matters relating to Ground 1, he had concerns about the sufficiency of particular evidence and the flaws in the adequacy of other evidence and how that impacted upon the balance of evidence relied upon by the Crown as foundational to proof of the Crown case, an approach entirely consistent with the Court’s appellate jurisdiction and its legal task and function.

90. [121]

    Other grounds of appeal alleged errors of law which, if made out, would justify quashing the conviction and a retrial, only four of which are relevant for the purposes of the issue estoppel asserted in the Reply.

91. [122]

    Ground 6 was that the trial miscarried by reason of the prejudice occasioned by the Crown Prosecutor in his closing submissions.

92. [123]

    At [575] McClellan CJ at CL considered the role of the appellate court in determining whether a miscarriage of justice had occurred by reason of the submissions of a Crown Prosecutor. His Honour referred to Libke v R (2007) 230 CLR 559; [2007] HCA 30 where, at [81], Hayne J explained that the critical question for the appellate court is whether there has been a "miscarriage of justice". In the context of the facts of Libke (which concerned inappropriate comments made by the prosecutor in the course of cross-examination of the accused), the question framed by Hayne J was: "did the making of these comments, either standing alone, or in conjunction with other aspects of the prosecutor's cross-examination of the appellant, make the trial unfair?". At [575] McClellan CJ at CL made particular reference to what Hayne J said in Libke at [83], posing the question whether comments made by the Crown were "comments that suggested (whether directly, or indirectly, by appealing to prejudice or passion) that the jury should follow some impermissible path of reasoning". Upon reviewing Mr Tedeschi’s closing submissions as a whole, McClellan CJ at CL was satisfied that he had failed to comply with the required standards of prosecutorial fairness, thereby denying the plaintiff a fair trial. This conclusion was based on an assessment of many different criticisms of the closing address made by the plaintiff’s senior counsel on the appeal, only some of which were accepted by his Honour.

93. [124]

    Ground 7 contended that the trial judge erred both in leaving murder on the basis of joint criminal enterprise to the jury and in failing to properly identify the basis upon which a verdict of guilty should be reached on application of that principle of criminal liability. At [679] McClellan CJ at CL set out the relevant principles governing an allegation of criminal liability based on joint criminal enterprise. His Honour was satisfied, based on the state of the evidence at the close of the trial, that there was no evidence to establish a joint criminal enterprise to kill in which the plaintiff was complicit and, on that basis alone, a new trial would have been justified.

94. [125]

    Ground 8 in the appeal was that the trial judge erred in allowing the Crown to present evidence and make submissions suggesting that Ms Byrne's knowledge of details relating to the Offset Alpine fire was a motive for the offence of murder. At [702]-[703] McClellan CJ at CL was satisfied that the Crown's submissions on the question of motive were speculative and of little probative value, and that the prejudice occasioned by them was not sufficiently dealt with by the trial judge's summing up or his directions. In the result his Honour was satisfied that the Crown's theory as to motive created "insurmountable prejudice in the minds of the jury" and that would also have justified the quashing of the conviction and the ordering of a new trial.

95. [126]

    Ground 9 alleged that a miscarriage of justice resulted from fresh evidence and evidence not disclosed at the plaintiff’s trial. The fresh evidence included a book that had been written by A/Prof Cross after the trial about his role in the prosecution of the plaintiff. The significance of the book was explained by McClellan CJ at CL at [716]-[717]:

96. [127]

    McClellan CJ at CL reached the conclusion at [730] that "the book which A/Prof Cross published has the consequence that his opinion on any controversial matter has minimal if any weight".

97. [128]

    Ground 9 required the Court of Criminal Appeal to assess whether the fresh evidence, including in the form of the book, warranted a new trial on the basis that there had been a miscarriage of justice because the jury was not privy to the information contained in the book which would have been relevant to their assessment of A/Prof Cross’s credibility and reliability as an expert witness. His Honour was satisfied that the fresh evidence would have warranted a new trial since "if the book and the speech had been available to the defence and the extent of A/Prof Cross’s partiality made apparent, his evidence would have been assessed by the jury to be of little if any evidentiary value on any controversial issue" ([758]).

98. [129]

    In considering the connection between the issue raised by Ground 9 on the appeal and the issues in these proceedings, it is important to note that there is no allegation in the FASC that the fresh evidence considered at the appeal was available to the prosecution before or during the course of the trial. That is significant given that the plaintiff's case is that the defendant acted maliciously and without reasonable and probable cause in initiating and maintaining the prosecution. Although the FASC lacks specificity as to the time at which the prosecution was wrongfully "maintained", this cannot extend beyond the date of conviction. None of the persons identified in the FASC as prosecutors could rationally be said to be responsible for "maintaining" the prosecution after conviction.

99. [130]

    There are at least two aspects of the tort, as explained in A v NSW, that assume particular significance for the purposes of considering the issues estoppel said to arise from the appeal judgment. The first is that the cause of action is concerned with the state of mind of the prosecutor. The second is that it is concerned with the actions and state of mind of the prosecutor, at particular points in time, in instituting or maintaining a prosecution. Any allegations of malice and the absence of reasonable and probable cause must necessarily be directed to the particular act of instituting the prosecution, or the act of maintaining a prosecution at a particular time, and with a prosecutor’s particular state of mind in considering the available evidence in support of the prosecution at that time.

100. [131]

     It is uncontroversial that a similarity between the nature of issues arising in the later proceedings with those that presented in the earlier proceedings will not suffice for issue estoppel to arise. The law’s concern with finality is strictly limited to maintaining the finality of the precise issue that has been judicially determined. Issue estoppel does not operate to prevent a party to litigation from litigating an issue that is similar, or even substantially similar, to one that has been previously decided. Thus the significance of the requirement that the identity of issue be certain and precise.

101. [132]

     In this case, the issues that arise for determination include whether the facts and circumstances pleaded in pars 16 and 17 of the FASC referable to the body of evidence that was assembled in the course of the investigation (only some of which was adduced at the plaintiff’s trial), and the inferences to be drawn from that evidence establish that one, or more than one, of the three alleged prosecutors instituted and maintained criminal proceedings against the plaintiff for murder without reasonable and probable cause and maliciously. In the Court of Criminal Appeal (and, in particular, so far as concerns the first ground of appeal) the issue was whether the Court considered that there were such deficiencies in the nature and quality of the evidence led by the Crown in proof of the plaintiff’s guilt that the jury’s verdict that his guilt had been proved beyond reasonable doubt was unreasonable and could not be supported having regard to the evidence. While the defendant accepts that there is some similarity in the nature of the issues with which the Court of Criminal Appeal was concerned and those that arise for determination in these proceedings (given that the evidential framework within which the legal issues arise are intrinsically linked), there are also material and significant differences.

102. [133]

     After the pleadings are subjected to the necessary close, focused and rigorous analysis that application of the doctrine of issue estoppel requires, I am not persuaded that issue estoppel attaches to any of what the plaintiff contends in the Reply are the factual “findings” or “conclusions” in the appeal judgment (or any mixed findings of fact and law), there being no sufficiently precise or certain identity of any ultimate issue of fact or law between the criminal appeal proceedings and these proceedings that the plaintiff has identified.

103. [134]

     Having resolved to the view that there is no identity of issue to which the plaintiff’s claim for issue estoppel could attach, or none that the plaintiff has identified in the pleadings with anything approaching sufficient precision or certainty, I do not intend to deal at length with the competing submissions of the parties as to whether there is an identity of parties. Although the resolution of that question is not free from doubt, I am inclined to the view that the plaintiff has not made good his submission that that element, as the second of two elements essential to making out his claim in issue estoppel, is also proved.

104. [135]

     It was common ground in this case that the defendant in these proceedings is the Crown in right of New South Wales, the plaintiff’s claim that he was maliciously prosecuted being brought against the defendant under the title “State of New South Wales” according to ss 3 and 5 of the Crown Proceedings Act. It is the plaintiff’s case that the parties to the proceedings (as to which he contends an issue estoppel attaches) are identical since the proceedings on indictment (for murder) were prosecuted on behalf of, and in the name of, “the Crown” according to s 8 of the Criminal Procedure Act and the challenge to that conviction also brought against the Crown.

105. [136]

     In the plaintiff’s submission, the fact that the criminal proceedings were conducted by the Director of Public Prosecutions who, in accordance with s 9(4) of the Director of Public Prosecutions Act 1986 (NSW) is deemed to be a prosecutor with respect to those proceedings, does not change the fundamental fact that it is the Crown who was party to the criminal proceedings, both on indictment and as respondent to the proceedings brought by the plaintiff in challenging his conviction under the Criminal Appeal Act.

106. [137]

     The plaintiff advances the further submission that although Pts 3 and 4 of the Vicarious Liability Act operate so as to abolish the requirement for proof of tortious conduct on behalf of prosecutors acting in the service of the Crown and who would, but for its operation, be personally liable as tortfeasors, that is irrelevant to the question at issue here, namely the proper identification of the parties to both sets of proceedings (namely, these proceedings and those brought under the Criminal Appeal Act).

107. [138]

     It is the defendant’s submission that the operation of the Vicarious Liability Act does have a direct bearing on the question since s 8(1) of that Act makes clear that Mr Tedeschi was not the “Crown” at the plaintiff’s trial but was acting as a delegate for the statutory entity who prosecuted the charge on behalf of the Crown, namely the Director or Public Prosecutions (see s 7(1)(a) of the Director of Public Prosecutions Act and s 5(1)(a) of the Crown Prosecutors Act 1986 (NSW).

108. [139]

     The defendant submitted that the role of the Director of Public Prosecutions in exercise of his statutory duties is analogous to the role of the Attorney General who may seek to enforce a public right or liberty by representing Her Majesty’s subjects, not the body politic of the government in which he or she holds office, thus emphasising the Attorney’s separate role even though they appear by the same counsel as the State. [1] In the defendant’s submission, the Director of Public Prosecutions, in exercising a statutory function in prosecuting an indictable offence on behalf of the Crown (and in representing the interests of the Crown in that capacity when proceedings are brought in the Court of Criminal Appeal under the Criminal Appeal Act) does so perforce his independent statutory office, not by representing the Crown in the right of New South Wales. I accept that submission.

109. [140]

     As seminal authority provides, the clearest expression of it being Ramsay v Pigram, it is for the party asserting an issue estoppel to satisfy the separate requirement that the parties are identical, as well as emphasising the requirement that there be a precise identity of issue.

110. [141]

     In the defendant’s further submission, in this case, as in Ramsay v Pigram, the only class of privy is that of a “privy in interest”, the basic requirement of which being that the privy must claim under or through the person of whom he is said to be a privy. Although Ramsay v Pigram, on its facts, does not bear any relevant comparison to the facts in issue here, in the defendant’s submission the case illustrates why the defendant State cannot be the privy of Mr Tedeschi (or any of the other putative prosecutors) merely because the State might be vicariously liable for such tortious conduct as they might be held responsible for as prosecutors in the service of the Crown. In the defendant’s submission, the State is not, by that relationship, constituted as their (or, in the case of Mr Tedeschi, his) privy.

111. [142]

     It is hardly surprising that the facts, assertions of fact or conclusions particularised in par 16 of the FASC under the heading of “Malice” and repeated in par 17 under the heading “Absence of Reasonable and Probable Cause” are expressed in similar terms to the appeal judgment since they are in large part extracted from McClellan CJ at CL’s reasons for judgment. However, the mere similarity in the issues that presented for determination in the appeal proceedings and the issues raised by the pleadings in these proceedings does not satisfy the requirement that there be an identity of ultimate issues of facts (or mixed fact and law) between the appeal proceedings, in which it is said the ultimate issues were determined, and these proceedings in which the issue estoppel is said to arise. The plaintiff’s claim for issue estoppel fails. I am also of the view that the plaintiff’s claim that it would be an abuse of process for the defendant to seek to answer the case mounted against it should be rejected. I accept the defendant’s submission that Rogers is authority for the proposition that no issue estoppel attaches to criminal proceedings and that the appeal judgment is so characterised.

112. [143]

     The question of issue estoppel having been settled adverse to the plaintiff, to the extent that any of my findings of fact are consistent with the findings of McClellan CJ at CL, Latham J or Rothman J in their treatment of the plaintiff’s grounds of appeal, my findings are predicated on the evidence that has been tendered and adduced by the parties in these proceedings. These proceedings are not concerned with the plaintiff’s guilt or the sufficiency of the evidence at his trial to prove it. That question has been resolved conclusively in his favour by his acquittal. These proceedings are concerned with the evidence before me (including the evidence of each of the alleged prosecutors) and what that evidence proves or fails to prove about the elements of the tort of malicious prosecution that are in issue and, if liability for that tort is made out against one or more of the prosecutors for whom the defendant is vicariously liable, what the evidence proves or fails to prove about the plaintiff’s entitlement to damages and their assessment.

The elements of proof in a claim for malicious prosecution

1. [144]

   The elements of the tort of malicious prosecution, as to which the plaintiff bears the onus of proof, are identified in A v NSW at [1] (Gleeson CJ, Gummow, Kirby, Hayne and Heydon JJ) as follows:

2. [145]

   Although the parties have approached the litigation on the basis that only the third and fourth elements present for consideration in this case, a further issue arising from the way the plaintiff puts his case concerns the identity of the prosecutor(s) in the way the first element is expressed, the prosecutor being the person (or people) who initiated the criminal proceedings that were terminated in the plaintiff's favour.

3. [146]

   Since the accountability imposed by the tort of malicious prosecution is only imposed on a person who plays an active role in the conduct of the proceedings by effectively instigating or setting them in motion (see A v NSW [37]-[38]), it is necessary in this case to identify who the prosecutor is (or who the prosecutors are if there be more than one) as a discrete issue.

The identity of the alleged prosecutors

1. [147]

   The plaintiff makes his claim for damages against three alleged prosecutors (Det Insp Jacob, A/Prof Cross and Mr Tedeschi), each of whom he submits were, at different stages and at different times between about 1996 and 2008, involved in the institution and maintenance of the criminal proceedings against him for Ms Byrne's murder, maliciously and without reasonable and probable cause.

2. [148]

   A claim, made for the first time in final submissions, that Mr Tedeschi, A/Prof Cross and Det Insp Jacob were “jointly and severally liable” in damages for the tort of malicious prosecution (the FASC making no such allegation) was not ultimately pressed. In the plaintiff’s submissions in reply it was made clear that it was no part of his case that either of Mr Tedeschi, Det Insp Jacob or A/Prof Cross agreed, either expressly or impliedly, to prosecute him maliciously and without reasonable and probable cause. Accordingly, in determining whether the tort has been established against any of the three prosecutors, the acts said to constitute the tortious conduct of one putative prosecutor must be considered separately from the acts alleged against the other two.

3. [149]

   Det Insp Jacob was the officer who had carriage of the continuing investigation into Ms Byrne's death under the rubric “Strike Force Irondale” over three successive phases from 18 June 1998. He is also the author of a Sufficiency of Evidence Report dated 8 January 2004, furnished initially to Det Sgt Berry of the State Crime Command, Operational Legal Support Division, for his opinion as to whether advice should be sought from the Director of Public Prosecutions that the available evidence supported a prosecution of the plaintiff for murder. In the Sufficiency of Evidence Report Det Insp Jacob expressed his concluded view that there was “a cogent circumstantial prima facie case” against the plaintiff for murder.

4. [150]

   In March 2004, the administrative approval of Det Sgt Berry having been obtained for the referral of the case to the Office of the Director of Public Prosecutions (ODPP), the Sufficiency of Evidence Report and the accompanying brief of evidence was furnished to the ODPP. As the Senior Crown Prosecutor of New South Wales, Mr Tedeschi was assigned the task of furnishing an advice to Mr Cowdery in his statutory role as the Director of Public Prosecutions as to the sufficiency of the evidence to prosecute the plaintiff for Ms Byrne's murder. The Sufficiency of Evidence Report was fully indexed to an accompanying brief of evidence. It was tendered in these proceedings. Mr Tedeschi’s advice was not produced, legal professional privilege having been claimed. The plaintiff did not challenge that claim.

5. [151]

   Between March 2004 and February 2006, Det Insp Jacob was the officer responsible for liaising with the ODPP and answering requisitions from Mr Tedeschi, and his instructing solicitors, in advance of Mr Tedeschi furnishing the advice sought by the Director. Det Insp Jacob continued in a liaising role throughout the course of the preparations for committal and the preparations for trial and during the course of the trial.

6. [152]

   On 28 February 2006, Mr Tedeschi furnished his written advice to Mr Cowdery that the available evidence was, in his opinion, sufficient to commence proceedings against the plaintiff for Ms Byrne's murder. It is the plaintiff’s case that Mr Tedeschi became a prosecutor for the purposes of the tort of malicious prosecution as and from the date upon which that advice was furnished.

7. [153]

   The advice Mr Tedeschi furnished to Mr Cowdery was provided pursuant to s 5(1)(c) of the Crown Prosecutors Act. Pursuant to s 5(1)(a) Mr Tedeschi also appeared on the Director’s behalf as senior prosecuting counsel in the committal proceedings and, following the plaintiff’s committal for trial to this Court, Mr Tedeschi appeared as senior prosecuting counsel at the plaintiff’s trial. He conducted those proceedings in that capacity through to verdict.

8. [154]

   On 1 March 2006, Det Insp Jacob was advised of Mr Cowdery’s determination that there was sufficient evidence to support a charge of murder, and of his further undertaking that the ODPP would prosecute the plaintiff for that offence were he to be extradited from the United Kingdom to New South Wales.

9. [155]

   On 3 March 2006, Ms Turner, a solicitor in the ODPP, after discussions with Mr Tedeschi, advised Det Insp Jacob that the plaintiff's solicitor should be contacted to see if he was prepared to return to Australia voluntarily. On 7 March 2006, Det Insp Jacob recommended to State Crime Command that Mr Tedeschi’s advice not be followed and that an arrest warrant should be applied for to support the plaintiff’s extradition from the United Kingdom. That proposal was supported by the Commander, Homicide Squad State Crime Command and the Manager, Operations Coordination State Crime Command.

10. [156]

    On 24 March 2006, Det Insp Jacob applied for the issue of a Court Attendance Notice and a warrant for the plaintiff’s arrest. The arrest warrant was executed in London on 3 April 2006. The plaintiff did not oppose his extradition. On his return to New South Wales on 3 May 2006 he was formally charged with Ms Byrne's murder.

11. [157]

    It is the plaintiff’s case that by that conduct Det Insp Jacob became a prosecutor for the purposes of the tort of malicious prosecution.

12. [158]

    In September 2003, at a time when Strike Force Irondale had been current for some years, A/Prof Cross was formally retained by the New South Wales Police Service (at Det Insp Jacob’s request) to advise as to the likely circumstances in which Ms Byrne descended to her death from the cliffs at the Gap. In about 1997 or 1998, Det Insp Wyver had sought informal oral advice from A/Prof Cross as to whether it was possible for Ms Byrne to have jumped from the cliff edge at the Gap, based on what was at that time believed to be the point from where her body was recovered, a location at the base of the cliffs which came to be referred to in the evidence at trial as “Hole B”. On the basis of the distances quoted to him (namely a point of impact 9 metres from the base of a vertical cliff about 30 metres high - measurements which Sgt Powderly, the police officer who retrieved her body, estimated in his evidence at the inquest in November 1997), A/Prof Cross’s advice was that Ms Byrne could have jumped to Hole B, but that she could not have been pushed over the cliff to have first impacted on the rocks at that point.

13. [159]

    A/Prof Cross’s advice in that respect was not the subject of a written report. No expert evidence was adduced at the inquest directed to the likelihood or not of Ms Byrne having jumped to her death.

14. [160]

    A/Prof Cross’s written opinion was initially sought by Det Insp Jacob in September 2003 referable to what were identified by him in his letter of instruction as the competing likelihood of a range of scenarios in which Ms Byrne might have descended to her death, including slipping, falling, jumping from a standing position, taking a running jump or being pushed or thrown. The opinions A/Prof Cross expressed in his first report were based upon Sgt Powderly's evidence at the inquest that Hole B was the point of recovery, together with a Terrestrial Photogrammetry Plan prepared by Snr Cst Streatfield on 2 March 1999 referable to that evidence.

15. [161]

    In his first report dated 19 November 2003 (“the first Cross report”), A/Prof Cross concluded that the most likely cause of death was that Ms Byrne ran over the edge of the cliff in the dark at a point about 8m south of the safety fence where there was a 20m long approach from the west on the southern rock ledge which is flat and level and relatively free of any obstructions. He considered it a less likely possibility that she was thrown by one or two people, given that a throw speed of at least 4.34 metres per second was required to reach what he then understood to be the landing point, a scenario which A/Prof Cross considered was unlikely for a number of stated reasons.

16. [162]

    The first Cross report was available to Det Insp Jacob as material upon which he based his conclusions in the Sufficiency of Evidence Report. The first Cross report was not included in the brief of evidence supplied with the Report, although its existence was referred to under the heading of “Miscellaneous Issues” where Det Insp Jacob noted as follows:

17. [163]

    To assist Mr Tedeschi in both formulating his advice to Mr Cowdery and then later in the course of preparing the matter for trial, Det Insp Jacob arranged, at Mr Tedeschi’s request, for A/Prof Cross to furnish further expert advice both in writing and in conference. In the result, A/Prof Cross provided six further reports between July 2004 and April 2008, four of which pre-dated Mr Tedeschi’s advice of 28 February 2006 that there was sufficient evidence to prosecute the plaintiff for Ms Byrne's murder.

18. [164]

    The second Cross report, dated 26 July 2004, was furnished after the Sufficiency of Evidence Report was forwarded by Det Insp Jacob to the Director of Public Prosecutions but before Mr Tedeschi’s advice to Mr Cowdery. It was furnished after new information suggested that Sgt Powderly had been mistaken and the Coroner had been misled as to the point of impact or the point of recovery of Ms Byrne’s body after which Sgt Powderly nominated Hole A, 4 metres north east of Hole B, as the correct point of recovery.

19. [165]

    In the second report, A/Prof Cross also proposed a different launch site from the cliff edge as the only possible launch site having regard to what he described as the “revised landing spot”. [3] In his view, the new data was consistent with only two possible conclusions as to the circumstances in which Ms Byrne descended to her death, the most likely being that she was “spear thrown” at high speed by one or two adult males from a small ledge to the north of the landing spot. This became known as “the northern ledge”. [4] He considered it a less likely possibility that Ms Byrne could have jumped from the northern ledge after a short run-up of no more than 5 metres, and only then if she had the athletic ability to execute the jump and land head first at Hole A.

20. [166]

    It will be necessary to refer in detail to the first Cross Report and the circumstances in which it was sought and provided, the circumstances in which the six further reports were also sought and provided, and the contents of those reports, it being the plaintiff’s case that A/Prof Cross’s conduct as a forensic consultant renders him a prosecutor for the purposes of the tort. It will not be necessary to consider at length the circumstances in which the point of recovery/point of impact was reappointed from Hole B to Hole A, given the plaintiff’s ultimate submissions on the subject. That said, reference to the process by which the landing point was reappointed is unavoidable.

21. [167]

    That process, including what is said by the plaintiff to be A/Prof Cross’s involvement in it, is also material to an assessment of the plaintiff's submission that from at least September 2003 A/Prof Cross became progressively embedded in the police investigation into Ms Byrne's death in such a way as to constitute himself a “de facto police officer” acting in the service of the Crown; a factual finding fundamental to the plaintiff’s claim that the defendant is vicariously liable for his tortious conduct as a prosecutor (see s 8 of the Vicarious Liability Act). That issue only arises if the plaintiff makes good his primary case that A/Prof Cross is a prosecutor.

The controversy over the landing point: Hole A or Hole B?

1. [168]

   Both at the plaintiff's trial, at the committal and in these proceedings a great deal of contention surrounded the question as to the precise location that Ms Byrne’s body became lodged in a rock formation at the base of the cliffs from which her body was retrieved. Two locations were referred to in the course of the evidence at the plaintiff's trial, respectively Hole A and Hole B. It appears they acquired that alphabetic nomination after A/Prof Cross prepared his fourth report in June 2004, at the request of Det Insp Jacob, after it became clear to Det Insp Jacob that police had for some years been proceeding on the erroneous understanding that Ms Byrne’s body had been retrieved from Hole B.

The appointment of Hole B as the point of recovery

1. [169]

   At 4:40am on 8 June 1995, after an extensive search of the cliff face and the rocks at the base of the cliff by Sgt Powderly as the senior officer of the Police Rescue Unit, using specialist light sources, Ms Byrne’s body was found with her head and upper torso (including her shoulders and arms) wedged between some large rocks some distance from the base of the cliff. Her legs and feet were extended at an angle towards the cliff face. Rigor mortis was advanced. [5] The retrieval of her body was hampered by the prevailing weather conditions, including the rising tide and gathering swell and by the extent to which her body was wedged in the rocks.

2. [170]

   Immediately upon her body being extracted it was placed in a body bag, sealed, secured on a stokes litter and lifted from the base of the cliff to the cliff top from where it was transported by government contractors to the morgue. No photographs were taken or notes made of the process of recovery or the precise position (between the rocks) at the base of the cliffs from where Ms Byrne’s body was recovered. No measurements were taken at that time (or in the days and weeks that followed) of the distance from the recovery point to the base of the cliffs, or the distance from that position to the cliff top. No photographs were taken of the area in daylight and no contemporaneous statement was taken from Sgt Powderly, or the other officers who assisted him, that may have served to appoint the recovery point with precision. [6]

3. [171]

   It was not until 29 May 1996 that a video reconstruction of the process of recovery was filmed, which included Sgt Powderly’s appointment of Hole B as the crevice in the rocks where Ms Byrne’s body was wedged. [7] This was also the crevice Sgt Powderly nominated in his evidence at the inquest in November 1997 as the point of recovery. [8]

4. [172]

   Det Insp Wyver gave evidence in these proceedings that in May 1996, when he was allocated the reinvestigation into the death of Ms Byrne at the Coroner's request before the inquest and at the direction of Det Insp Kennedy of the Homicide Unit South Region, he requested Sgt Powderly and other members of the Police Rescue Squad to conduct a re-enactment of the recovery of Ms Byrne's body with the intention that this would generate media interest in the investigation.

5. [173]

   He gave evidence that his purpose at that time was twofold: to prepare the matter for the inquest and to identify the two fishermen who had spoken to police at Watsons Bay in the early hours of 8 June 1995 without any police officer taking their details or making a note of the information they provided. The two fishermen, Mr Wano and Mr Brunetta, identified themselves to police as a result of the broadcast of the re-enactment.

6. [174]

   Although Sgt Powderly gave evidence at the inquest, no questions were asked of him directed to interrogating the accuracy of his appointment of the place from where the body was recovered, a position appointed by him and confirmed by Cst Camden who was present and assisted him in the creation of the video reconstruction of the process of the recovery of the body. Neither were there questions asked of him to test the reliability of his opinion as to the position on the cliff edge where he considered Ms Byrne was likely to have launched herself, or to have been launched from, to have impacted head first into the rocks below at Hole B. It is useful to set out his evidence in full at this stage.

Sgt Powderly’s evidence at the inquest

1. [175]

   Sgt Powderly was a member of the Police Rescue Squad. As at the date of the inquest he had held that position for 16 years. He gave evidence of the training involved in executing cliff rescues from heights and depths which he described as fairly extensive. He said he had carried out in the vicinity of 40 to 50 major cliff rescues, 15 or 16 of which were at the Gap at Watsons Bay. [9]

2. [176]

   He gave detailed evidence of the light sources that were used to search for Ms Byrne’s body at the base of the cliff. Put simply, the light which comprised a series of optical lenses enabled a defined circle or square of light to be focused in a way that does not dissipate over distance. This operates in contrast to a thousand watt ordinary torch light which, even if mounted at height, dissipates over distance, losing continuity of focus in the process. Sgt Powderly also gave evidence that although the Lifesaver One helicopter was deployed in the course of the search, it was not the light shone from that aircraft that served to locate Ms Byrne’s body because the extent of mist also had the effect of dissipating the aircraft’s light over distance. [10]

3. [177]

   Sgt Powderly gave detailed evidence of the process of “sweep[ing]” the cliff the cliff wall with the specialist light that were undertaken. He described the rock formations at the bottom of the cliff in what he described as the “northern area” as covered with growth which tends to darken the colour of the rocks to dark brown or black. It was against that contrast that he eventually detected what he described as a “discolouration” through the lens of the optical device. He confirmed with the helicopter pilot by radio that they should back away from the area so that he could focus on the discolouration which, after he positioned himself at what was described as the “optimum point” on the cliff top to focus on that area, he ultimately came to identify as the soles of a pair of shoes. He had already scaled the safety fence with the light when he made that first identification which as he moved into a different position enabled him to take a “side on view”. [11] He then saw what he described as:

4. [178]

   He was emphatic in his evidence at the inquest that neither Ms Byrne’s shoes nor legs were discernible from the cliff top by using other than a specialised light source. He said even the police Maglite torches which had been sent down to him by rope dissipated into the mist at the bottom of the cliffs, even at close range.

5. [179]

   He confirmed that he was at the base of the cliffs for a period of 45 minutes where he undertook a preliminary examination of Ms Byrne confirming that she was deceased. [13] He said he examined her legs as they were the only part of her body that he could see (her head and shoulders being wedged between the rocks). He said there did not appear to be any injuries from her waist to her feet. He said there was nothing in the area of her body of a “personal nature” and he checked it very carefully. He said:

6. [180]

   He made his assessment and formed the opinion that the first landing was as Ms Byrne had gone “into the crevice”. [15] He said:

7. [181]

   He said that while he was at the base of the cliff he looked at the top of the cliff in order to make an approximation of the point from which she fell. He formed the opinion that Ms Byrne had:

8. [182]

   He said that point was proximate to the point where he stood on the cliff ledge on the seaside of the safety fence with the light source when he identified Ms Byrne’s shoes, then her legs and pants.

9. [183]

   Sgt Powderly made it clear in his evidence that it was only when he returned to the Gap on 29 May 1996 with members of the police video unit that he undertook the task of approximating the distance from the base of the cliff to what he described as the point of first landing and the point from which her body was recovered. Even at that stage, no actual measurement was taken but he estimated it to be approximately nine to ten metres. [18] He was asked whether in his opinion there was anything unusual about that distance, as to which he said as follows:

10. [184]

    The Coroner asked Sgt Powderly whether he could estimate, having retrieved a lot of bodies from the Gap in other “jumping cases”, what the likely or average distance from a building or cliff that a body is found. He said:

11. [185]

    The Coroner then asked if that was possible with a decent run-up, to which Powderly said:

12. [186]

    The Coroner then asked the following:

13. [187]

    The Coroner then volunteered that he had spoken to a forensic pathologist about it, who had reported back to him that he believed it was possible. So far as the possibility that Ms Byrne was thrown to her death, the Coroner ventured the view with which Sgt Powderly agreed, that “it’d be a decent sort of a heave”. [23]

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

1. [188]

   To the extent that there is a continuing controversy between the parties for the purpose of these proceedings as to which of the two crevices or holes is the correct location as a matter of objective fact, the plaintiff did not invite the Court to resolve whether, on the balance of probabilities (or referable to some other standard of proof), Hole A or Hole B was the correct cavity.

2. [189]

   The plaintiff submitted that the continuing significance of the controversy is relevant only to whether he has discharged the onus of establishing that the proceedings were initiated and maintained in the absence of reasonable and probable cause. The plaintiff does not seek to make a case that the change of recovery location from Hole B to Hole A in mid-2004 of itself establishes malice, in the sense that it is not alleged that there was any conspiratorial agreement between A/Prof Cross, Sgt Powderly, or anyone else for that matter, to deliberately change the point of recovery, or even that there might have been any subtle suggestions to that end. Instead, it is plaintiff's case that it was not open to the Crown at trial to make its case that Ms Byrne was thrown to her death in a “spear throw” from the northern ledge on the basis that Hole A was the actual point of recovery, or for the Crown to rely upon Sgt Powderly's evidence as to the circumstances in which he recovered Ms Byrne’s body to confirm Hole A as the actual point of recovery. The plaintiff submits that with the identification of Hole A not occurring until January 2004 at the earliest, and April 2004 at the latest, and with the process of identification of the point of recovery (or the landing point) at that time from the cliff top as inherently unreliable, there remains the reasonable possibility that the actual point of recovery was a different location on the rock floor altogether, necessarily raising doubts about the location of the point of first landing. The plaintiff submitted elsewhere in his final submissions that the Crown could not in any event disprove the reasonable possibility that Ms Byrne’s body became wedged in the rocks (either Hole A or Hole B) as a result of wave activity, thereby raising the real possibility that she jumped to her death from a standing position somewhere on the edge of the cliff in the horseshoe shaped topography of the Gap and that an objective absence of reasonable and probable cause for murder proceedings to have been initiated and maintained for that reason is established.

3. [190]

   The plaintiff submitted that the change in the appointment of the point of recovery from Hole B to Hole A is also illustrative of the inadequacies in the police investigation and, in that way, the issue is also relevant to proof of the absence of reasonable and probable cause, together with what are said to be doubts about the truthfulness of various witnesses as to the circumstances in which the change of recovery location was identified and disclosed which is said to be, in some unspecified way, relevant to the issue of malice. I note this was a submission advanced in writing during the course of the proceedings although how A/Prof Cross, Det Insp Jacob or Mr Tedeschi’s evidence on the question is said to lack veracity was not at that time made clear nor was it addressed in final submissions.

4. [191]

   It was in the course of the plaintiff developing in his submissions in reply how liability is said to attach to Det Insp Jacob and A/Prof Cross as prosecutors that the circumstances in which Hole A became appointed as the “correct cavity” was revisited. Of course, in the event that neither Det Insp Jacob nor A/Prof Cross is found to be a prosecutor, that question becomes somewhat academic since it is not suggested that Mr Tedeschi played any role in the circumstances in which Hole A was nominated as the point of recovery. As Mr Tedeschi made clear in his evidence, and as is obvious from the transcript of the trial proceedings, as the Crown Prosecutor he was concerned to establish that Ms Byrne could not have jumped or dived to her death in order to have ended up wedged head first and waist deep into a rocky crevice on the rock floor, a situation that obtained irrespective of whether her body was recovered from Hole A or Hole B. It was Mr Tedeschi’s evidence in these proceedings that the preponderance of evidence established that Ms Byrne’s body was recovered from, and indeed first impacted on the rock floor at Hole A. Mr Tedeschi gave evidence in re-examination as to the basis upon which he assessed the sufficiency of the evidence to establish that fact:

5. [192]

   Even were there some residual doubt attending that question, leaving open the possibility that Ms Byrne may have been recovered from Hole B (a doubt which I do not have), Mr Tedeschi gave evidence that it was his view that even then suicide had been disproved, and beyond reasonable doubt, given the “core findings” of A/Prof Cross which he considered valid and supportable.

6. [193]

   Leaving to one side, for the moment, consideration of the plaintiff’s claim that in the period before 28 February 2006 (the date of Mr Tedeschi’s advice to Mr Cowdery) A/Prof Cross dishonestly and intentionally misled Mr Tedeschi (and/or Det Insp Jacob) intending that they would commence a prosecution against the plaintiff for Ms Byrne's murder, conduct which the plaintiff submitted is, as a matter of law, sufficient for A/Prof Cross to be a prosecutor for the purposes of the tort of malicious prosecution (as to which see later), the plaintiff advanced his claim in malicious prosecution against Det Insp Jacob and against Mr Tedeschi as prosecutors on two bases.

The plaintiff’s case against Det Insp Jacob and Mr Tedeschi as prosecutors - in summary

1. [194]

   As noted above, it is the plaintiff’s case that Det Insp Jacob’s application for the issue of the Court Attendance Notice on 24 March 2006 charging the plaintiff with Ms Byrne's murder, and the application for the issue of a warrant for his arrest and extradition from the United Kingdom on that charge, coupled with the execution of that warrant and the plaintiff being charged with murder on 3 May 2006, is conduct which constitutes him as a prosecutor. The plaintiff submitted that Det Insp Jacob does not avoid liability for the tort of malicious prosecution for the role he played in the initiation of the criminal proceedings against the plaintiff for Ms Byrne's murder simply because, by 24 March 2004, Mr Tedeschi had advised Mr Cowdery that a charge of murder should be laid, and that Mr Tedeschi became a prosecutor for the purposes of the tort as and from that date.

2. [195]

   The plaintiff submitted that, having been arrested and charged with Ms Byrne's murder by Det Insp Jacob and with his knowledge of the brief of evidence upon which the charge of murder was based, including six of the seven report of A/Prof Cross that had been furnished by that date and which the plaintiff submitted the Court would find was Det Insp Jacob’s knowledge of A/Prof Cross’s deceptive and dishonest conduct in furnishing those reports, he should be regarded as a prosecutor.

3. [196]

   The plaintiff submitted that the brief of evidence compiled by Det Insp Jacob and which accompanied the Sufficiency of Evidence Report provided to the ODPP in January 2004, and the available inferences that ought be drawn from that body of material, also establishes (objectively) an absence of reasonable and probable cause for Det Insp Jacob to have initiated criminal proceedings against him for Ms Byrne's murder. The plaintiff further submitted that the Court would be satisfied that Det Insp Jacob had no subjective belief that the evidence warranted him being prosecuted for murder and, that being the case, the Court would make the further finding that he was prosecuted by Det Insp Jacob for an ulterior or improper purpose amounting to malice.

4. [197]

   The plaintiff submitted that since Mr Tedeschi’s advice to Mr Cowdery on 28 February 2006 that proceedings for murder should be commenced was based upon the brief of evidence compiled by Det Insp Jacob furnished with the Sufficiency of Evidence Report, including the requisitions Mr Tedeschi made of the investigating police before furnishing that advice and his conferences with A/Prof Cross both at that time and during his preparations for trial, the Court would also find Mr Tedeschi had no subjective belief that a criminal prosecution of the plaintiff for murder was warranted. Additionally, even were the Court not persuaded that the plaintiff had established that Mr Tedeschi lacked a genuine belief that a prosecution for murder was warranted, the plaintiff submitted there was such a demonstrable absence of reasonable and probable cause in that material that malice should be imputed to Mr Tedeschi as prosecutor for that reason.

5. [198]

   The plaintiff further submitted that the defendant is liable for Mr Tedeschi maintaining the prosecution of him for murder through to his conviction. In attributing liability as a prosecutor to Mr Tedeschi in that capacity, the plaintiff submitted that the evidence that Mr Tedeschi adduced at trial, including the manner in which it was adduced, establishes either or both an objective absence of reasonable and probable cause in the maintenance of the proceedings or Mr Tedeschi’s lack of any genuine or honest belief that the evidence, as assembled, warranted the maintenance of the prosecution. The plaintiff relied upon the inferences that he contends can be drawn from the developing state of the Crown brief of evidence prior to the trial, and from a range of contemporaneous documents, including the trial transcript (coupled with what he contends are the adverse inferences arising from Mr Tedeschi’s evidence in these proceedings) to make good his claim that Mr Tedeschi maintained the proceedings against him maliciously and without reasonable and probable cause

6. [199]

   One of the issues raised by the plaintiff's case insofar as it involves Mr Tedeschi as prosecutor is the role of the prosecutor at law and the legal duties by which a prosecutor is bound, including the prosecutor’s role in deciding the evidence that will be adduced in proof of the allegation that a person has committed a crime; how that evidence should be adduced; and the submissions that may legitimately be put in advancing the Crown case that a verdict of guilty should be returned.

7. [200]

   It is the plaintiff’s case as pleaded and particularised in par 16 of the FASC that Mr Tedeschi breached his obligations as a prosecutor in a number of defined respects, breaches which in some respects mirror the findings of the Court of Criminal Appeal that he misconducted himself as a prosecutor causing the trial to miscarry. Mr Tedeschi’s misconduct (being conduct the plaintiff submitted this Court would find proved independently of the adverse findings made by the Court of Criminal Appeal) is relied upon by the plaintiff in these proceedings, both to establish Mr Tedeschi’s lack of a genuine belief in the sufficiency of the evidence to support a case of murder and as evidence of his malice in prosecuting the plaintiff through to verdict on that charge.

The defendant’s case on the identity of each of the prosecutors

1. [201]

   By its filed defence the defendant acknowledged that by having played an active role in the conduct of the plaintiff’s criminal proceedings in his capacity as a Crown Prosecutor – that is both by “effectively instigating the proceedings or setting them in motion” and thereafter by “maintaining them” – Mr Tedeschi is a prosecutor for the tort of malicious prosecution (see A v NSW at [37]-[38]).

2. [202]

   The defendant submitted that Mr Tedeschi is not only a prosecutor, he is the prosecutor, and that neither Det Insp Jacob nor A/Prof Cross have that status as a matter of fact or law. The defendant also accepts that if the plaintiff succeeds in establishing, by clear and cogent proof, consistent with Briginshaw, that Mr Tedeschi prosecuted him maliciously and without reasonable and probable cause, then he would have committed that tort in the service of the Crown and, by operation of s 8(1)(a) of the Vicarious Liability Act, the State of New South Wales would be vicariously liable for any damages shown to have been the result of that tortious conduct.

3. [203]

   It is the defendant’s case that the plaintiff has not established, as matter or fact or law, that A/Prof Cross or Det Insp Jacob is a prosecutor for the purposes of the tort of malicious prosecution.

4. [204]

   The defendant’s case with respect to the plaintiff’s claim that it is vicariously liable for Det Insp Jacob’s alleged tortious conduct is as follows:

   1. (1)

      Det Insp Jacob is not a prosecutor in the prosecution of the plaintiff for murder for the purposes of the tort of malicious prosecution;

   2. (2)

      In any event, even if he is found to be a prosecutor, there is no proper basis in the evidence to find that he was malicious or acted without reasonable and probable cause;

   3. (3)

      Further, a number of matters upon which the plaintiff relies in attributing liability to Det Insp Jacob, and adverse findings sought with respect to his evidence, are not matters that were put to him in cross-examination, contrary to the rule in Browne v Dunn (1893) 6 R 67 (HL).

5. [205]

   The defendant accepts that were the Court to find, as a matter of law, that Det Insp Jacob was a prosecutor at any relevant time, any proven tortious conduct by him (as with any proven tortious conduct of Mr Tedeschi) is conduct for which the Crown is vicariously liable for such damages as proven to have been caused by that conduct (see ss 5 and s 9B of the Vicarious Liability Act and s 13(b) of the Interpretation Act 1987 (NSW)).

6. [206]

   The defendant submitted, however, that even were the plaintiff successful in establishing that A/Prof Cross was a prosecutor, which was denied, the Court would not be satisfied that he was at any relevant time acting in the service of the Crown (as required by s 8(1) of the Vicarious Liability Act) and that, for that reason, it is not liable for any tortious conduct that may be attributed to him. In the defendant’s submission, the Court would comfortably find that A/Prof Cross was at all relevant times acting in a private capacity and, further, that in his capacity as an expert witness called by the Crown at trial, and by the preparatory steps he took in furnishing expert reports at the behest of NSW Police, he is immune from suit according to the principle of witness immunity, irrespective of whether his evidence was false or misleading (see Cabassi v Vila (1940) 64 CLR 130 at 141; D’Orta-Ekenaike v Victorian Legal Aid (2005) 223 CLR 1; [2005] HCA 12 at 39).

7. [207]

   As noted above, in the course of the police investigation into Ms Byrne's murder under the command of Det Insp Jacob, and thereafter in Mr Tedeschi’s preparations for trial, A/Prof Cross furnished six reports in which he variously expressed his opinion about the speed with which Ms Byrne's body was launched from the cliff top at the Gap to the rock floor. The plaintiff accepts that in applying that calculus, based as it is upon Newton’s Laws of Motion, the opinions he expressed were within the legitimate reach of his expertise as a physicist. It is also apparent from a reading of the various reports of A/Prof Cross (albeit with differing degrees of obviousness from the subtle to the stark) that he proffered a range of opinions and views about matters bearing upon Ms Byrne's death that far exceeded his expertise, with some opinions being based upon nothing other than bare conjecture, surmise and expressed with hyperbole. The defendant does not contend otherwise.

8. [208]

   Other issues upon which A/Prof Cross was either invited to express an opinion in the reports that were furnished and served (or upon which he volunteered his views) were said by the defendant to be based upon his qualifications as a “de facto” expert in the physics of sport, including biomechanics, and an “ad hoc” expert in female anatomy. The defendant submitted that A/Prof Cross’s evidence about a range of matters across this spectrum of experience was admissible in the committal hearing and at trial on this basis. The defendant also submitted that these same opinions and conclusions were material upon which Det Insp Jacob and Mr Tedeschi were entitled to rely in making their assessment of the weight of the evidence to support a charge of murder.

9. [209]

   The defendant submitted that Det Insp Jacob was also entitled to consider the first Cross report, in the context of the results of his own wide ranging investigations as the officer in charge of Strike Force Irondale, to support the decision he made that the plaintiff should be charged with murder and the administrative and legal steps to affect that decision.

10. [210]

    The plaintiff submitted that the concept of a temporary “ad hoc” expert is not encountered in the Evidence Act and is unknown to the common law and that adoption of the concept would render obsolete the strict rules of admissibility in Part 3.3 of the Evidence Act that apply in determining whether someone is qualified to give expert evidence. To the extent that Mr Tedeschi attempted in his evidence to align the notion of a temporary expert with the “ad hoc” expert recognised in Butera v DPP (Vic) (1987) 164 CLR 180; [1987] HCA 58 (the issue there concerning voice identification), what is certain is that the category is neither open ended nor expanding. In my view, whatever else A/Prof Cross might have been permitted to venture a view about in his furnished reports beyond his expertise as a physicist, it was not open to Mr Tedeschi to justify utilising A/Prof Cross at trial as a source of evidence about the average shoulder width of an average female.

11. [211]

    The plaintiff also submitted that a fair reading of all of the reports of A/Prof Cross would lead a cautious and prudent prosecutor to realise that A/Prof Cross had failed to comply with the Expert Witness Code of Conduct and that he ought not to have been relied upon as a Crown witness in a murder trial for that reason, quite apart from questions about his credibility and reliability as an expert witness upon whose evidence the Crown case depended.

12. [212]

    It was common ground in these proceedings that Mr Tedeschi reached agreement with defence counsel, Mr Terracini QC, that large parts of the Cross reports, including the opinions he volunteered about a range of matters that exceeded his expertise, would not be adduced by the Crown at the trial. In the result, no objection was taken at the committal or at trial to the Crown leading evidence from A/Prof Cross as a qualified physicist (albeit with his primary area of expertise as a plasma physicist) that, on the assumption that the point of recovery of Ms Byrne’s body was from Hole A, and that the first point of impact as Ms Byrne's body descended from the cliff was when she hit the large pointed rock known as “Pyramid Rock“ and then slid head first into the crevice created by that rock and rock, forming Hole A (the Crown case at trial), that on the application of incontrovertible Newtonian laws (as to which A/Prof Cross was qualified to apply and from which he was qualified to reason) she must have left the cliff (whether she jumped or dived to her death) at a minimum launch speed of 4.3 m/s or, if she was thrown, at a minimum launch speed of 4.4 m/s.

13. [213]

    In addition, no objection was taken in the committal or at trial to A/Prof Cross expressing opinions beyond his formal qualifications, in spite of the fact that it must have been obvious that significant and important aspects of his evidence concerned biomechanics – a specialist field of learning in which he neither had, nor claimed to have, any formal expertise, qualifications or training. These opinions included the capacity of a female of Ms Byrne's age, height, weight and athleticism to launch herself from the cliff top at the Gap and to arrive head first into Hole A, and the capacity of a male of the plaintiff’s weight and assessed athleticism to “spear throw” Ms Byrne to arrive at the same location. On the assumption that Hole A was the point of impact/recovery (which, as I have noted, was an issue of considerable controversy at trial but which I am satisfied in these proceedings was essentially settled) the only challenge mounted by the plaintiff at his trial to the admissibility of A/Prof Cross’s evidence was to him expressing an opinion about the injuries likely to have been sustained as Ms Byrne fell from a 30 metre height and then hit the rocks below. A/Prof Cross was also permitted, without objection at trial, to give evidence of a number of poolside tests where a conscious and compliant female was thrown by a male of the plaintiff’s height into a swimming pool to support the conclusions he reached.

14. [214]

    One of the substantive grounds of appeal the plaintiff advanced on his conviction appeal was that the evidence of A/Prof Cross and the opinions he expressed about a variety of matters caused the trial to miscarry. The criticisms the Court made of A/Prof Cross’s evidence included that his evidence was based upon a series of unproved assumptions, the most critical being that no allowance had been made in his calculations for Ms Byrne to have been unconscious or incapacitated when she was raised at the plaintiff’s shoulder height and “spear thrown” to her death. The length of the run-up to the ledge that A/Prof Cross nominated as the only launch site was also, in the view of the Court, likely to have been wrongly calculated at 4 metres and not 5 metres which, in turn, directly impacted on the possibility that Ms Byrne might have arrived at Hole A by running and jumping, assuming she had a high level of athleticism. These, amongst a number of criticisms in the approach A/Prof Cross was shown to have taken to his role as an expert witness, coupled with what the Court described as the “progressive development of [A/Prof Cross’s] experiments and refinements of his theory” to support the conclusion that Ms Byrne had been thrown to her death, and what the fresh evidence adduced on the appeal revealed about his credibility, resulted in the Court concluding that his evidence was entitled to very little, if any, weight on any controversial issue. The strength of the Crown case suffered irremediably as a consequence.

15. [215]

    Notwithstanding the approach taken by defence counsel to the admissibility of A/Prof Cross’s evidence at trial, it is the plaintiff’s case in these proceedings that in the phase before the criminal proceedings where initiated (respectively by Mr Tedeschi on 28 February 2004 and Det Insp Jacob on 1 March 2006), A/Prof Cross volunteered information, and supplied his opinion and advice concerning the question of how Ms Byrne descended to her death to both Mr Tedeschi and Det Insp Jacob that he knew was false or misleading, and that he did so dishonestly with the intention that they would prosecute the plaintiff for Ms Byrne's murder. The plaintiff submitted that it is that conduct the Court would be satisfied establishes that A/Prof Cross played an active role in instituting the criminal proceedings against him as a prosecutor and that, as a separate question, the Court would conclude that in so doing he acted maliciously and without reasonable and probable cause. The plaintiff relies principally on Commonwealth Life Assurance Society Ltd v Brain (1935) 53 CLR 343 as a source of authority for the attribution of liability to A/Prof Cross in this way. The plaintiff does not seek to make the case that A/Prof Cross “maintained” the proceedings maliciously and without reasonable and probable cause, but rather that his involvement after 28 February 2006 (the date of Mr Tedeschi’s advice to Mr Cowdery) and throughout his involvement in the curial trial process is relevant to proof of his having acted before that date maliciously and without reasonable and probable cause.

16. [216]

    Such conduct of A/Prof Cross’s that postdates the formal commencement of the proceedings on 3 May 2006, when the plaintiff was charged by Det Insp Jacob with Ms Byrne's murder, includes his involvement with Mr Tedeschi and Det Insp Jacob in the preparation for trial and during the course of the trial; his evidence at trial; his authoring of a book entitled “Evidence for Murder: How Physics Convicted a Killer”, published after the trial; his cross-examination in the Court of Criminal Appeal; and his evidence under cross-examination in these proceedings where each of the aforementioned matters was the subject of considerable scrutiny.

17. [217]

    The plaintiff submitted that the adverse credit findings the Court would make of A/Prof Cross as a witness in these proceedings are relevant not only to proving that he acted dishonestly in his dealings with the police and Mr Tedeschi, but also if he is found to be a prosecutor in that those same adverse credit findings are relevant in proof of the fact that he had no subjective belief that the evidence (such as he was aware of it) warranted the initiation of a prosecution of the plaintiff for murder, and that he was actuated by malice in intentionally misleading police and Mr Tedeschi to that end.

18. [218]

    Finally, the plaintiff submitted that the Court would also find that A/Prof Cross was not an independent witness acting on his own account in a business, enterprise, undertaking or activity such as to attract the exception in s 8(1)(b) of the Vicarious Liability Act, and the Court would not be satisfied that the principle of expert witness immunity is available to the defendant in this case (see D’Orta-Ekenaike). The plaintiff submitted that the role given by Det Insp Jacob to A/Prof Cross (or the role that Det Insp Jacob permitted him to assume) as a “de facto police officer” rendered his role one of being “in the service of the Crown” and that the defendant is vicariously liable for his tortious conduct pursuant to s 8(1)(a) of the Vicarious Liability Act for that reason.

19. [219]

    The defendant submitted that the plaintiff’s attempt to distinguish A/Prof Cross’s role from that of the expert advisor/witness to whom immunity attaches is specious since it is self-evident that it was A/Prof Cross’s expertise as a physicist, not a police officer (de facto or otherwise), that was foundational to the opinions he expressed in the corpus of his reports, each of which were furnished at a time when he is said to be liable as a prosecutor as a “de facto police officer”. The defendant submitted further that his opinions are directly connected with the way the Crown prosecuted its case at the plaintiff’s trial, as to which witness immunity attaches. The defendant submitted that the plaintiff cannot ignore the reality that the claims made and raised against A/Prof Cross in these proceedings are directly connected to statements he made in the course of (or in preparation for) judicial proceedings, being the opinions proffered in relation to the trial of the plaintiff for murder and, that being the case, the immunity attaches to them.

The elements of the tort of malicious prosecution at issue in this case

1. [220]

   For the plaintiff to make out his case against either Det Insp Jacob, A/Prof Cross or Mr Tedeschi as prosecutors for whom he contends the defendant is vicariously liable, he is obliged to prove both the third and fourth elements of the tort of malicious prosecution identified in A v NSW against each of them, with both elements having a separate role to play. The third element, that of malice, obliges the plaintiff to establish a positive proposition while the fourth element, the absence of reasonable and probable cause, obliges the plaintiff to establish a negative proposition. The forensic difficulty associated with proving a negative is notorious.

2. [221]

   Importantly, the question that presents in these proceedings is not what would have constituted reasonable and probable cause to have initiated the criminal proceedings against the plaintiff for murder, but whether the plaintiff can establish that one or more of the putative prosecutors acted without reasonable and probable cause in doing so at the time the prosecution of him on that charge was initiated and/or maintained by them.

3. [222]

   While proof of the elements of the tort may in a given case overlap, as the High Court noted in A v NSW, they are not coterminous. The tort of malicious prosecution is available only upon proof of an absence of reasonable and probable cause and the prosecutor’s pursuit of some illegitimate or oblique motive extraneous to the proper invocation of the criminal law (see A v NSW at [93-[94]).

What constitutes malice?

1. [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.

2. [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.

3. [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]).

4. [226]

   On the question of what constitutes malice, the High Court in A v NSW said:

5. [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.

6. [228]

   While proof of malice may often be a matter of inference, as the High Court emphasised in A v NSW at [93]:

7. [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.

8. [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:

9. [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.

10. [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 tests for proof of a want of reasonable and probable cause

1. [233]

   In the context of this case, as in every case where an action for damages for malicious prosecution is brought, an enquiry about reasonable and probable cause has two aspects: first, what the prosecutor made of the material available to support the prosecution of the plaintiff and, second, what the prosecutor should have made of that material. The first enquiry imposes a subjective test and the second an objective test. An absence of reasonable and probable cause may be established by application of either or both tests.

2. [234]

   In this case, it follows that to prove a subjective absence of reasonable and probable cause the plaintiff must establish either that at the time the proceedings were instituted or maintained against him for murder one or more of the putative prosecutors did not (honestly) know, believe or conclude that there were reasonable grounds to justify him being prosecuted for Ms Byrne's murder. In essence, this enquiry involves an examination of the prosecutor's subjective state of persuasion about the sufficiency of the evidence that was considered (by him) as warranting setting the criminal process against the plaintiff in motion or, whether the prosecutor (whose conduct is being considered) honestly believed in the sufficiency of the evidence to initiate a criminal prosecution. More precisely, it obliges the plaintiff to prove the prosecutor had no such belief.

3. [235]

   The objective test for an absence of reasonable and probable cause will be met where, in the Court’s assessment, a prudent and cautious prosecutor in the prosecutor’s position would not have come to that view, there being insufficient grounds for it.

4. [236]

   As the High Court in A v NSW pointed out at [58], to limit the enquiry into whether the material assessed objectively would have warranted the commencement or maintenance of the prosecution would deny relief to a plaintiff who was prosecuted maliciously by a prosecutor who is not shown to have actually formed the view that the material warranted prosecution. Conversely, to ask only what the prosecutor made of the material would favour the incompetent or careless prosecutor over the competent and careful.

5. [237]

   Further still, as the High Court in A v NSW observed at [78], the content of the question whether the prosecutor believed in the case that was instituted or maintained is not altered if the word “honestly” is added. The Court went on to say:

6. [238]

   At [61] in A v NSW the High Court observed:

7. [239]

   As the High Court said in A at [80], in cases where the prosecutor acted on material provided by third parties (as was clearly the case here, so far as the liability of Mr Tedeschi and Det Insp Jacob is concerned) a relevant question will be whether the prosecutor is shown not to have honestly concluded that such material warranted setting the processes of the criminal law in motion. This is a separate question from the objective sufficiency of the material. As to that question, at [82] in A v NSW, the High Court said:

8. [240]

   But unless the prosecutor is shown either not to have honestly formed the view that there was a proper case for prosecution, or to have formed that view on an objectively insufficient basis, the absence of reasonable and probable cause is not established. Further, at [81], the Court observed that the expression “proper case for prosecution” is not susceptible of exhaustive definition without obscuring the importance of the burden on the plaintiff of proving the absence of reasonable and probable cause in the variety of factual and forensic circumstances in which that question may arise.

9. [241]

   The question whether the evidence establishes that the prosecutor (whether that be Mr Tedeschi alone or Mr Tedeschi and either or both Det Insp Jacob and A/Prof Cross) has been shown not to have concluded honestly that the material was such as to warrant a prosecution, requires an examination of the assessment the putative prosecutors made of the available material which, in turn, requires an examination of their state of persuasion about the material considered by them and its sufficiency. The plaintiff submitted that each of the three putative prosecutors was cross-examined on this basis and that I would reject as untrue the claims they each made to having honestly formed the view, on a reasoned assessment of the available material, that it was sufficient to warrant the plaintiff being prosecuted for murder.

10. [242]

    It is the defendant's submission that I would find each of the three putative prosecutors credible witnesses and that no basis has been established in the evidence, or by inference from the evidence they gave, for the Court to arrive at any contrary view. It remains to be considered whether the defendant’s submission that in important respects, in the cross-examination of each of A/Prof Cross, Det Insp Jacob and Mr Tedeschi, there was a failure to comply with the rule in Browne v Dunn, a rule of fairness which the defendant submitted was to be strictly observed in this case where the plaintiff invites adverse credit findings against each of the three putative prosecutors.

The temporal question

1. [243]

   In considering the objective aspects of an absence of reasonable and probable cause it is clear that the focus of the Court’s enquiry is on the sufficiency of the information available to the prosecutor(s) at the time proceedings were commenced or maintained, in light of all the facts of the particular case assessed according to an objective standard.

2. [244]

   The plaintiff’s case is, essentially, that there was insufficient evidence both at the time the proceedings were instituted and throughout the maintenance of the prosecution through to verdict to disprove the reasonable possibility of suicide, and insufficient evidence to contradict the plaintiff’s account to police (a case which mirrored his case at trial) that he had no knowledge of the movements or whereabouts of Ms Byrne on 7 June 1995 after he left her in bed at around 1pm and his outright denial that he was at Watsons Bay at any time that day or anywhere near the cliffs when she descended to her death. The plaintiff also submitted that there was insufficient evidence to establish the manner of death on the case the Crown advanced and the plaintiff’s role and conduct as the person who murdered her.

3. [245]

   The authorities recognise that the resolution of the question whether there is an objective absence of reasonable and probable cause will most often depend upon identifying what it is that the plaintiff asserts is deficient about the material on which the prosecutor acted in instituting or maintaining the prosecution.

4. [246]

   In an action for malicious prosecution the need for a close focus on what are contended to be deficiencies in the evidence is allied with the importance of recognising the temporal dimension to that enquiry. An enquiry into the question of the absence of reasonable and probable cause directs attention to the state of affairs that obtained when the prosecution was commenced or when it is alleged the prosecution was maintained. Moreover, as the High Court observed at [59] in A v NSW, the enquiry necessarily directs attention to the material the prosecutor had available for consideration when deciding whether to commence or maintain the prosecution, not any material that may have come to light thereafter.

5. [247]

   The defendant, in its submissions, complains that the plaintiff’s submissions are replete with “hindsight reasoning” and that the case, as pleaded, betrays that fundamental flaw. As the defendant pointed out, much of what is particularised as malice in par 16 of the FASC, and repeated in par 17 as the facts from which an absence of reasonable and probable cause is established, are drawn from the appeal judgment of the Court of Criminal Appeal. As I have already discussed when dealing with the plaintiff’s claim in issue estoppel, it is self-evident that in exercising its appellate jurisdiction under the Criminal Appeal Act, the Court of Criminal Appeal was not concerned with the adequacy or sufficiency of the material available to the prosecutor when the proceedings were initiated and maintained, but whether on the basis of the evidence adduced at the trial the jury ought to have a reasonable doubt about the plaintiff’s guilt. The defendant submitted that when this Court disregards the plaintiff’s submissions that employ “hindsight reasoning”, as it must, it will be apparent that the plaintiff has failed to prove that the criminal proceedings were instituted and maintained without reasonable and probable cause against any one of the alleged prosecutors applying either an objective or subjective test for proof of that element.

6. [248]

   In his submissions in reply the plaintiff rejects the submission that he has approached proof of his case by employing impermissible reasoning or that his approach is flawed in any respect. The plaintiff invites the Court to make its assessment of the state of the evidence when the prosecution was commenced (be it in February 2004 when Mr Tedeschi advised Mr Cowdery that the evidence was sufficient to warrant prosecution of the plaintiff, or in March 2006 when Det Insp Jacob sought the issue of a Court Attendance Notice and an arrest warrant effectively setting the criminal process in motion) and when the Court makes its own assessment both of what the prosecutor made of the available material at that time and/or what the prosecutor should have made of it, the Court will not engage in hindsight reasoning and has not been invited by the plaintiff to do so.

The hearing in summary

1. [249]

   The documentary evidence tendered in the proceedings comprised 54 lever arch folders. Oral evidence was called by both parties. The plaintiff gave evidence and called witnesses to support his claim for damages. Relevantly, Det Insp Jacob, A/Prof Cross and Mr Tedeschi gave evidence in the defendant’s case and were extensively cross-examined. Lengthy written submissions exceeding 700 pages in total were filed in advance of closing arguments on 3 July 2017, on which date I reserved my decision.

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

1. [250]

   I emphasised in the course of the hearing that in determining the plaintiff’s claim for damages I would not be making any ultimate factual finding as to the circumstances in which Ms Byrne’s body came to be found at the base of the cliffs at Watsons Bay, including whether she was thrown from the cliff or whether she jumped or ran and dived to her death. These proceedings are not concerned with determining the manner and cause of Ms Byrne's death. They are concerned with whether the plaintiff has discharged the onus of establishing that one or more of the three people he nominates as prosecutors acted maliciously and without reasonable and probable cause in instituting and maintaining the criminal proceedings against him for her murder, and whether the defendant is vicariously liable for the conduct of one or more of them entitling him to an award in damages.

2. [251]

   In final submissions Mr McClintock urged me to find as a fact that on the evidence adduced in these proceedings Ms Byrne probably took her own life by jumping or running and diving to her death. He also submitted that I would be satisfied that was the state of the evidence at the time the criminal proceedings were instituted and maintained and, that being the case, it follows that when the material upon which the prosecutor(s) relied is objectively assessed, the plaintiff will necessarily have established that his prosecution for her murder (by one or more of them) was instituted and maintained without reasonable and probable. He also submitted that this is also an available basis upon which to find that the prosecutor(s) acted maliciously.

3. [252]

   Although the question whether at the time the proceedings were instituted and maintained there was evidence capable of excluding suicide beyond reasonable doubt was addressed in final submissions by both parties (an unsurprising state of affairs given the significance of that question to the plaintiff’s case that he was prosecuted for her murder without reasonable and probable cause, whether assessed objectively or referable to the subjective belief of the prosecutor(s)), that does not translate into an obligation that the Court must find as a fact the precise circumstances in which Ms Byrne died.

4. [253]

   Despite a police investigation into Ms Byrne's death which extended over many years, both before and after the inquest in 1997/1998 and up to and including the trial proceedings in 2008, and despite the fresh evidence adduced in the proceedings on appeal in 2011 that presage these proceedings, controversy persists about a number of issues concerning the manner and cause of death. I should emphasise that continuing controversy must not be taken to undermine the decision of the Court of Criminal Appeal that the plaintiff’s conviction for murder was not supportable or that a verdict of acquittal should not have been entered.

5. [254]

   The issues relating to the manner and cause of Ms Byrne’s death include when she left the cliff edge and descended to her death and the place on the cliff edge from where she made that descent. While it was the Crown case at trial that Ms Byrne left the cliff edge at or about 11:30pm on 7 June 1995 (co-ordinate with the time two fisherman heard a woman scream followed by silence), proof of that fact depended upon the jury being satisfied that it was Ms Byrne who was in the company of two men from about 8pm until 10:30pm that evening when those three people were seen to walk from Watsons Bay shopping village towards the Gap, and that the plaintiff was one of those men.

6. [255]

   The Crown case also depended on the quality and sufficiency of A/Prof Cross’s evidence that Ms Byrne must have been thrown from the cliff top or cliff edge head first in “a spear-like throw” to her death to have impacted at or in Hole A (or Hole B). It was what was said to be the weight of that evidence in combination with other evidence to the effect that Ms Byrne would have been unlikely to have committed suicide that permitted the Crown to advance the case at trial that there was no reasonable possibility that Ms Byrne intentionality jumped to her death.

7. [256]

   It is by now uncontroversial that it was doubts about the reliability of the evidence which the Crown relied upon to establish these two interrelated but separate facts, together with the doubts and questions about the sufficiency of other evidence adduced by the Crown in support of the plaintiff’s guilt (including what the Crown submitted was the plaintiff’s motive in killing Ms Byrne), that resulted in the jury’s verdict being quashed by the Court of Criminal Appeal and a verdict of acquittal entered. The critical question in these proceedings is not whether it follows as a fact from the plaintiff’s acquittal that I would find Ms Byrne took her own life, but whether the plaintiff can establish that criminal proceedings against him for her murder were instituted and maintained by one or more alleged prosecutors maliciously and without reasonable and probable cause.

8. [257]

   That enquiry includes, but is not limited to, an assessment of whether at the time the proceedings were instituted and maintained there was evidence capable of identifying Ms Byrne in the plaintiff’s company (and that of another man) for some hours at Watsons Bay on the afternoon of 7 June 1995 or, more critically, whether the evidence was capable of establishing that she was in the plaintiff's company later that evening at Watsons Bay, and in a state of extreme distress, within an hour of two fishermen hearing a woman scream from the general region of the cliff top at the Gap, before her body was discovered at 4am the following day at the base of the cliffs.

9. [258]

   It is for the plaintiff to discharge the evidential and persuasive burden of establishing that when the criminal proceedings against him were instituted and maintained, the evidence relied upon by the Crown to identify him at Watsons Bay with Ms Byrne on 7 June 1995 at or around 11:30pm (when, on the Crown case, she descended to her death) was so flawed that a cautious and prudent prosecutor would not have instituted and maintained a criminal prosecution for her murder.

10. [259]

    Even if the evidence, assessed for that purpose in these proceedings, is found to have been objectively capable of satisfying a jury that, contrary to the plaintiff’s account that he last saw Ms Byrne at midday on 7 June 1995 in their apartment and in bed, he was in fact with her at Watsons Bay in the afternoon and evening of that day, it is still open to the plaintiff to make out his case that the proceedings were initiated and maintained without reasonable and probable cause if he establishes that one or more of the putative prosecutors held no genuine belief that the evidence was capable of proving that fact.

11. [260]

    Independent of the plaintiff’s challenge to the sufficiency of the evidence relied upon by the Crown to prove that he was at Watsons Bay with Ms Byrne on 7 June 1995, the plaintiff may also make out his case if he is able to discharge the evidential and persuasive burden that at the time the criminal proceedings against him were instituted and maintained, the evidence relied upon by the Crown to disprove suicide was inadequate. That onus will be discharged if the Court’s assessment of the evidence relied upon by the Crown to disprove suicide beyond reasonable doubt was flawed in a fundamental respect, or because a reasonable prosecutor would have viewed the evidence as objectively incapable of disproving the reasonable possibility of suicide. Even if the evidence, assessed for that purpose in these proceedings, is found to have been objectively capable of satisfying a jury that Ms Byrne did not take her own life, again, it is still open to the plaintiff to make out his case that the proceedings were initiated and maintained without reasonable and probable cause if he establishes that one or more of the putative prosecutors held no genuine belief that the evidence was capable of disproving suicide as a reasonable possibility.

12. [261]

    The Crown at trial relied heavily on the evidence from Ms Byrne’s friends, co-workers and family members who were unable to countenance the possibility that Ms Byrne took her own life. This evidence, coupled with the medical evidence from Dr Pan that (absent the plaintiff’s account to police and others after her death) Ms Byrne did not have the clinical profile of a person who, as at June 1995, would be vulnerable to suicide, was also evidence which the defendant submitted in these proceedings added persuasive weight to the physical evidence assembled from the crime scene which, with the application of Newtonian physics and the evidence of A/Prof Cross who espoused it, discounted any reasonable possibility of suicide beyond reasonable doubt, or was at least capable of so doing, such as to properly found a prosecution for her murder.

13. [262]

    The plaintiff submitted that Ms Byrne's attendance on her doctor within days of her death, and her complaint of feelings of depression in the context of her clinical history of self-harm following her mother’s suicide, predisposed her to suicide. The plaintiff submitted that the absence of any explanation for her known or presumed movements on the afternoon of 7 June 1995, and the contemporaneity of the sounds heard by the fishermen of a female screaming after 10:30pm “for a few seconds before it cut out” were readily explained by Ms Byrne being alone for some hours before her death contemplating her demise and then executing that plan. In the plaintiff’s submission, while the views of those who knew her and who saw no apparent signs of any mental instability in the days or weeks prior to her death were genuinely held, and understandably so, they should not be treated by the Court as determinative of the question whether in these proceedings the plaintiff has the made out his case that the prosecution of him for Ms Byrne's murder was initiated and maintained without reasonable and probable cause because the reasonable possibility of suicide could not be excluded.

14. [263]

    It is in the context of what the Crown has always acknowledged was its obligation of disproving the possibility of suicide beyond reasonable doubt that the involvement of A/Prof Cross looms large. Although Mr Tedeschi gave evidence that he understood that the investigating police (Det Insp Jacob in particular) regarded the evidence of A/Prof Cross as essential to proof that Ms Byrne was murdered, he gave evidence that he did not view the expert evidence that way.

15. [264]

    The plaintiff submitted that when Mr Tedeschi closed the Crown case, although he exhorted the jury to use their common sense, A/Prof Cross’s evidence remained the primary evidence the Crown relied upon to exclude suicide. The plaintiff submitted that Mr Tedeschi’s evidence in these proceedings that he did not regard A/Prof Cross’s evidence as critical to proof of the plaintiff’s guilt, whether at the time the proceedings were initiated or when they were maintained to verdict, should be rejected.

16. [265]

    While it may ultimately be a question of semantics, I regard Mr Tedeschi’s evidence that the expert evidence was “very significant”, [25] but not crucial, as somewhat disingenuous. In the result, however, given the plethora of facts that are in contest in these proceedings and the inferences that are said by the respective parties to flow from the facts as the Court will ultimately find them to be, whether Mr Tedeschi should or should not be believed on the issue of the relative importance of the evidence of A/Prof Cross, at one time or another, is unlikely to be determinative. That said, and although there is no direct evidence as to the prominence or otherwise of A/Prof Cross’s opinion when Mr Tedeschi furnished his advice to Mr Cowdery in February 2006, Mr Tedeschi did give evidence that he considered the full complement of A/Prof Cross’s reports (six in number as at the date of his advice) before rendering that advice.

17. [266]

    Irrespective of whether or not I accept Mr Tedeschi’s evidence that A/Prof Cross was significant, but not crucial, to proof of the Crown case, and irrespective of whether I accept that he genuinely held the view that it was open to a jury to convict the plaintiff of murder even were they to disregard the evidence of A/Prof Cross altogether (as to which I have grave doubts), it cannot be doubted that A/Prof Cross’s contribution generally to the investigation was welcomed by Det Insp Jacob, consistent with the way Mr Tedeschi opened the Crown case to the jury. In fact, Mr Tedeschi referred to the expert evidence the Crown relied upon in proof of guilt very early in his opening submissions. It was one of only three categories of evidence to which he did refer. Although A/Prof Cross was not at that time referred to by name, what would be his evidence that Ms Byrne was “spear thrown” from the cliff by a very strong man was emphasised and, as the Crown case unfolded, it was A/Prof Cross’s evidence alone that was available to the Crown as an objective source of evidence to exclude the reasonable possibility that Ms Byrne jumped or dived to her death.

18. [267]

    Were I to conclude that at the time that proceedings were instituted and maintained (be it in 2004, 2006 or 2008) the identification evidence was incapable of establishing the plaintiff’s presence at Watsons Bay at any relevant time on 7 June 1995, and that the criminal proceedings were instituted and maintained without reasonable and probable cause for that reason, then the manner and cause of Ms Byrne’s death, including whether the evidence was capable of discounting suicide beyond reasonable doubt, may not feature prominently for determination. It would still be open to the plaintiff to seek to establish that one or more of the putative prosecutors knew that the evidence left open the reasonable possibility of suicide but that they determined to prosecute him for murder notwithstanding, in proof that they prosecuted maliciously. That is a separate question that only arises if the plaintiff proves the proceedings were initiated and maintained without reasonable and probable cause.

19. [268]

    If, however, I am satisfied that the body of so-called identification evidence, when taken with all the evidence relied upon by the prosecutor(s) in instituting and maintaining the criminal proceedings against the plaintiff for murder, was sufficient to establish that the plaintiff was at Watsons Bay with Ms Byrne on 7 June 1995 within hours of the scream heard by the fisherman (clearly a central fact underpinning the Crown case) then the sufficiency of the evidence to disprove suicide beyond reasonable doubt might still be in contention.

20. [269]

    That approach would, however, depend upon the case the plaintiff has advanced in these proceedings. The plaintiff did not seek to make his case on the basis that even were the evidence capable of establishing that he was at Watsons Bay at a time proximate to Ms Byrne’s demise, the proceedings were nonetheless initiated and maintained without reasonable and probable cause because the Crown could not disprove the reasonable possibility that he was with her when she committed suicide. The only case he advanced was on the interrelated basis that the Crown could not disprove the reasonable possibility that Mr Byrne took the unilateral step of travelling to the Gap with the intention of taking her own life after he had last seen her at their apartment in bed during the early afternoon, and that he was at all times ignorant of her intentions.

21. [270]

    It was the Crown case at the plaintiff’s trial (and the defendant’s case for the purposes of these proceedings) that since it was physically impossible for Ms Byrne to have run and dived or jumped to her death and to have landed in Hole A, the inevitable conclusion the Court would reach is that she must have left the cliff edge above that landing spot with the involvement of a third party or third parties, and not by suicide, the defendant submitted that there is nothing in the evidence in these proceedings that would, or could, lead this Court to any different conclusion. That being the case, the defendant submitted it was open to Mr Tedeschi (the only prosecutor on the defendant’s case), having regard to all of the available evidence, to advise that the plaintiff be prosecuted for murder and to maintain that prosecution through the verdict, not only because suicide could be excluded beyond reasonable doubt but because the other evidence in the case was sufficiently probative of the plaintiff’s guilt to defeat his claim that he was prosecuted without reasonable and probable cause.

22. [271]

    While it is legitimate in these proceedings for the defendant to address submissions as to the manner and cause of Ms Byrne's death and to emphasise discrepancies in the plaintiff’s various accounts to police (and to others) of his movements after he said he left Ms Byrne sleeping at their home in Potts Point at about 1pm on 7 June 1995 and before he said he found her car parked at Watsons Bay sometime around midnight on 8 June 1995, and even to submit that some of his conduct might still be regarded as inconsistent with having had no knowledge of her whereabouts both during the afternoon and at the base of the cliffs at midnight, it bears repeating that the plaintiff is entitled to the full benefit of the quashing of his conviction for her murder and the verdict of acquittal that was entered (A v NSW at [57]).

23. [272]

    All that said, because the plaintiff’s claim for damages is dependent on him establishing that he was maliciously prosecuted for Ms Byrne's murder by at least one of the prosecutors for whom he contends the defendant is vicariously liable, it is unavoidable that questions as to the manner and cause of Ms Byrne's death have been re-agitated in these proceedings, even if these proceedings cannot finally resolve that question.

The Court’s approach to the evidence and the issues

1. [273]

   In the event that either or both Det Insp Jacob and A/Prof Cross are found to be prosecutors, the further question whether Det Insp Jacob acted maliciously and without reasonable and probable cause at the time proceedings were instituted or maintained by him or, in the case of A/Prof Cross, whether he acted maliciously and without reasonable and probable cause in what are said to be his dishonest dealings with Mr Tedeschi in Mr Tedeschi’s role as prosecutor (the refined basis upon which the plaintiff relies in making good his contention that A/Prof Cross is a prosecutor), can only be resolved by first undertaking a detailed examination of the lengthy course of the police investigation, including A/Prof Cross’s role in the investigation.

2. [274]

   Whether the plaintiff has established that Mr Tedeschi prosecuted him maliciously and without reasonable and probable cause as and from February 2006 when he furnished his advice to Mr Cowdery also necessitates a review of the evidence assembled in the course of the police investigation, since it was the brief of evidence compiled by Det Insp Jacob, including his consideration of the content of the first Cross report, that was the basis upon which Mr Tedeschi furnished his advice to Mr Cowdery, the advice upon which Mr Cowdery relied when he undertook to prosecute the plaintiff for murder upon the plaintiff’s extradition from the United Kingdom. What Mr Tedeschi made of this material, or what he should have made of it at the time the proceedings were instituted and maintained, are questions integral to the enquiry into whether the plaintiff has established that Mr Tedeschi prosecuted the plaintiff without reasonable and probable cause. It may also inform the question whether the plaintiff has established that he did so maliciously.

3. [275]

   To the extent that this material was supplemented or refined at the time the trial commenced in August 2008, and as the trial progressed to verdict, will also have a direct bearing on both questions. For that reason alone, a review of the course of evidence led at trial is unavoidable. In addition, because the plaintiff’s case on malice (as it is attributed to Mr Tedeschi as prosecutor) is based, to a substantial degree, both on what is known about Mr Tedeschi’s preparations for trial and in his conduct in the presentation of the Crown case as reflected in the transcript of the proceedings at trial, it will also be necessary to review Mr Tedeschi’s opening and closing addresses to the jury in some detail, as it will the way in which some of the evidence in the Crown case was adduced by him and why some evidence available to the Crown was not adduced at all.

4. [276]

   A/Prof Cross’s involvement in the investigation not only raises the question whether I am persuaded on the plaintiff’s case that he acted dishonestly in the provision of advice first to the NSW Police through Det Insp Jacob (that being one of the bases upon which the plaintiff attributes to him the role of a prosecutor). It involves an enquiry into the assessment Det Insp Jacob made of his evidence, it being the plaintiff’s case that contrary to his evidence in these proceedings, Det Insp Jacob had no genuine belief in the opinions that A/Prof Cross was volunteering in the course of his dealings with him and in the provision of his various reports, because he knew A/Prof Cross was willing to provide whatever opinion would help prove the plaintiff murdered Ms Byrne.

5. [277]

   The assessment Mr Tedeschi made, or should have made, of A/Prof Cross’s reliability as an expert witness, including his compliance or the lack of it with the Expert Witness Code of Conduct, presents as a separate question. The role Mr Tedeschi played (if any), first in steering the tenor and content of the reports furnished by A/Prof Cross from July 2004 (his second report) until months before trial (his seventh report), and then in the way A/Prof Cross’s evidence was adduced by him at trial is a further question. It is the plaintiff’s case that Mr Tedeschi’s revealed attitude to A/Prof Cross’s evidence goes to proving both his lack of subjective belief in the sufficiency of the evidence to make out the Crown case that the plaintiff threw Ms Byrne to her death, and malice by his attempts to manipulate the evidence to establish that fact.

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

1. [278]

   Upon receipt of the defendant’s submissions challenging the correctness of the plaintiff’s primary submission that Commonwealth Life Assurance Society Ltd v Brain is authority for the proposition that A/Prof Cross is “vicariously liable for the tort of malicious prosecution”, [26] and that “Det Insp Jacob may alternatively be vicariously liable with [him]”, [27] and after apparently accepting the defendant’s challenge to the plaintiff’s further submission that Det Insp Jacob and A/Prof Cross are “jointly and [severally] liable with Mr Mark Tedeschi”, [28] the plaintiff redefined his case on the prosecutor issue. From that I take it that the plaintiff accepts that on a proper reading of the decision in Brain, neither proposition is correct as a matter of law.

2. [279]

   Before turning to the plaintiff's redefined or clarified case, it is useful to refer to the facts in Brain which can be shortly stated. The respondent (Mr Brain) sued the appellant company in this Court for maliciously prosecuting him for conspiring with others to cheat and defraud divers shareholders and policy holders of the Commonwealth Life (Amalgamated) Assurance Ltd of divers large sums of money. The appellant company had been given authority to instruct solicitors and counsel and to conduct the prosecution in the name of a police officer as informant. While the filing of a bill of indictment by the Attorney General was pending, Mr Inch (a director and general secretary of the company) told Mr Smith the company, “could stop the prosecution … provided that Smith made a statement that he was the tool of Page, and also induced Corkhill and Brain to make similar statements”. A nolle prosequi was subsequently filed and the civil action commenced.

3. [280]

   The tension between whether the action brought by the company was a private or public prosecution was obvious. It was explained by Evatt and McTiernan JJ at 400-401 as follows:

4. [281]

   In relation to the question of determining whether the appellant company was correctly identified as prosecutor, Starke J held at 351:

5. [282]

   Starke J considered two facts of particular significance. First, Mr Inch gave permission to the company to conduct the prosecution on the express condition that neither the police officer, who was the informant, the Commissioner of Police or the Crown was to be liable for any costs, charges or expenses. Further, the chairman of the company had told shareholders in May 1933 that “the recent prosecutions” have:

6. [283]

   At 379, in what has become the seminal judgment, Dixon J considered the question of the identity of the prosecutor as follows:

7. [284]

   It was Dixon J’s reference to “vicarious responsibility” and “joint wrongdoers” that the defendant in these proceedings submitted the plaintiff had misconstrued in seeking to attribute “vicarious” liability as a prosecutor to A/Prof Cross. The plaintiff takes no issue with that criticism in his submissions in reply.

8. [285]

   The plaintiff submitted, however, that the attribution of tortious liability to a third party prosecutor is not limited to cases where false information is provided to the person who formally commences the prosecution. The plaintiff submitted that Dixon J described two situations that go beyond the case of a person who “confines himself to bringing before some proper authority information which he does not disbelieve”, to include a case where the discretion that vests in the prosecuting authority through an appointed prosecutor is misled by a person who deliberately provides false information and, secondly, where the prosecutor is procured or counselled by improper means by someone to procure the laying of charges.

9. [286]

   In the circumstances of this case (questions of vicarious liability under the Vicarious Liability Act aside), the plaintiff accepted that A/Prof Cross will not be a prosecutor as a matter of law unless he establishes that as an expert consultant A/Prof Cross caused Mr Tedeschi’s independent discretion as the Senior Crown Prosecutor to miscarry when Mr Tedeschi advised Mr Cowdery that the plaintiff should be prosecuted for murder, and that he did so by intentionally and deliberately misleading Mr Tedeschi. Expressed in another way, the plaintiff accepts that he would need to establish that A/Prof Cross intentionally counselled or procured Mr Tedeschi to commence a prosecution against him for Ms Byrne’s murder, and that he did so dishonestly, if he is to be regarded as a prosecutor in these proceedings. The defendant does not take issue with Brain as authority for either proposition.

10. [287]

    That being the case, the question of A/Prof Cross’s alleged dishonesty and Mr Tedeschi’s reliance on what the plaintiff submitted was the knowingly false information he provided in his various reports, are the primary facts in issue on the question whether the plaintiff has established A/Prof Cross is exposed as a prosecutor for the purposes of the tort. The defendant’s vicarious liability for any of his tortious conduct in that capacity is a separate question that only arises if the first question is answered in the affirmative.

11. [288]

    It is the defendant’s case in these proceedings that the plaintiff has failed to prove that A/Prof Cross procured or counselled Mr Tedeschi to prosecute the plaintiff by dishonest conduct, whether by knowingly supplying information and proffering opinions which he knew to be false, or which he knew were objectively unsupportable. The defendant submitted that the principles of third party liability for the tort of malicious prosecution identified in the various authorities to which the Court was referred by the plaintiff need to be applied with caution because, inevitably, these cases involve prosecutions being “virtually compelled” by information provided by complainants or witnesses without prosecuting authorities being in a position to exercise an independent discretion, or make any objectively informed assessment of the essence or the substance of a complaint of criminal wrongdoing. The defendant emphasised what it submitted was self-evident from the consideration Mr Tedeschi gave to the sufficiency of the evidence in the police brief of evidence, and in the various requisitions made before the advice was furnished to Mr Cowdery, and then ultimately in the presentation of the Crown case, namely that the core or central premise of the views expressed by A/Prof Cross were independently verified, and numerous aspects of the Crown case were also the subject of expert evidence in relation to which A/Prof Cross had no role or expertise. The evidence given by Prof Elliott is said by the defendant to figure prominently in that connection. The defendant submitted, correctly, that it is not to the point that witnesses called by defence, including Dr Duflou, Prof Hilton or Prof Pandy, disagreed with some or even all of the opinions of the experts called in the Crown case since, for the purposes of these proceedings, the focus is what the prosecutor actually made of the evidence, including the expert evidence, or what he should have made of that evidence, at the time the proceedings were instituted or maintained.

12. [289]

    The parties are at issue as to whether the plaintiff must also establish that A/Prof Cross’s opinions “virtually compelled” Mr Tedeschi to initiate the proceedings in order for the Court to find that in advising that the plaintiff be prosecuted for murder, Mr Tedeschi’s discretion miscarried. The plaintiff accepted that if Mr Tedeschi’s decision to prosecute was otherwise based on objectively sufficient evidence, then A/Prof Cross’s evidence, even if it is found to be misleading or false, will not have been shown to have caused Mr Tedeschi’s discretion to prosecute to miscarry. The plaintiff submitted, however, that is not what occurred. The plaintiff submitted the Court would be satisfied that without the opinions expressed in A/Prof Cross’s second and subsequent reports there was insufficient evidence to support his prosecution for murder despite Mr Tedeschi’s evidence in these proceedings to the contrary. In the alternative, the plaintiff submitted that it would be sufficient for the Court to be satisfied that A/Prof Cross’s dishonest conduct materially affected Mr Tedeschi’s decision to prosecute the plaintiff or, to the extent that Det Insp Jacob is also taken to be a prosecutor, to have materially affected the decision he made to charge the plaintiff with murder.

13. [290]

    The question of third party liability for the tort of malicious prosecution has been most recently considered by this Court in Sahade v Bischoff [2015] NSWCA 418, an appeal involving a neighbourhood dispute which erupted into physical violence as a result of which the appellants were charged with criminal assault. Mr Sahade and Mr Smith (the appellants) sued Mr and Mrs Bischoff (the respondents) for malicious prosecution. The Bischoffs denied they were prosecutors. This was an issue on appeal. At first instance, the trial judge found neither Mr nor Mrs Bischoff were substantially and sufficiently involved in the procurement, institution and/or maintenance of the criminal charges against Mr Sahade and Mr Smith to become prosecutors, since it was the police who decided to charge them, relying partly on statements from Mr and Mrs Bischoff but also relying upon CCTV footage of the incident.

14. [291]

    At [113] Gleeson JA noted:

15. [292]

    Gleeson JA then referred to Brain in the following connection:

16. [293]

    In Johnston v Australia & New Zealand Banking Group Ltd [2006] NSWCA 218 (the case cited by Gleeson JA at [115]), a bank and two other parties (the creditor and his employee) were sued for malicious prosecution. The bank had issued a notice to the appellant and then sought to have him prosecuted for trespass when he entered the land to obtain the notice, the bank, as secured creditor, having taken possession of the land. Basten JA (Giles and Santow JJA agreeing) stated the principles that apply when a private person is sued as a prosecutor at [41]-[43]:

17. [294]

    Gleeson JA did not consider it necessary to decide whether a conclusion reached by Richardson J in Commercial Union Assurance Co of New Zealand Ltd v Lamont [1989] 3 NZLR 187 at [199] that because of the independent discretion exercised by official prosecutors, the circumstances in which private persons are to be regarded as having instigated a prosecution should be "rare and exceptional" ought be adopted by this Court as a matter of principle. Gleeson JA was of the view, however, that for the purposes of the appeal it was sufficient to note the distinction Brooke LJ drew in Mahon v Rahn (No 2) [2000] 1 WLR 2150 at [268] between a "simple" case involving a complaint to the police and more complex cases in which the prosecuting authority is in receipt of evidence from a variety of sources and has to decide in the exercise of its discretion whether it is in possession of sufficient evidence to justify setting the law in motion. His Honour also acknowledged, at [120], that encouraging third parties to assist police in the function of investigating and prosecuting breaches of the criminal law, without fear of being harassed by actions of malicious prosecution, reflected public policy considerations.

18. [295]

    The defendant in these proceedings submitted that analogous policy considerations ought apply to forensic and other experts across a range of disciplines who are commonly retained by investigators and by prosecuting authorities to give informed opinion evidence bearing upon the infinite range of facts that frequently present as facts in issue in a criminal trial, and that the community and courts ought not be deprived of their opinions for fear of tortious or civil proceedings being commenced against them.

19. [296]

    Ultimately, the Court in Sahade held (Basten JA and Beech-Jones J agreeing with Gleeson JA) that the respondents, Mr and Mrs Bischoff, did not instigate the prosecution of the appellants, nor did they maintain the prosecution of them because, inter alia, the relevant facts were not so exclusively within their knowledge that it was “virtually impossible for the police to exercise any independent discretion to prosecute the appellants” without them.

20. [297]

    The Court stated at [138]:

21. [298]

    In order for the plaintiff to make his case against A/Prof Cross, he must first establish the positive proposition that the information supplied by A/Prof Cross on or before 8 February 2006 when Mr Tedeschi’s advice was furnished to Mr Cowdery was false and he knew it to be so. This is plain from the passage in Brain cited by Gleeson JA in Sahade in which Dixon J stated at 379 that, “no responsibility is incurred by one who confines himself to bringing before some proper authority information which he does not disbelieve”. A/Prof Cross maintained in his evidence (a position adopted by the defendant as a complete answer to the plaintiff’s case that A/Prof Cross is a prosecutor) he could not “will an experimental result … The experimental results speak for themselves regardless of what I want to happen or what anybody else wants to happen, an experimental result is what it is and it speaks for itself”. [29]

A/Prof Cross’s involvement with Strike Force Irondale and the provision of his advice

1. [299]

   The plaintiff tendered two lever arch folders of single folio or multiple folio pages evidencing the contact between A/Prof Cross and the NSW Police Service (Exhibits 108(1) and 108(2)) between about September 2003 and the plaintiff’s trial in August 2008.

2. [300]

   The most concentrated contact was during the currency of Strike Force Irondale and, after the investigation was officially terminated in January 2004, during the period when the Sufficiency of Evidence Report and the brief of evidence was under consideration within the ODPP prior to Mr Tedeschi furnishing his advice to Mr Cowdery in February 2006.

3. [301]

   The exhibit includes all correspondence, whether by letter or email, between A/Prof Cross and Mr Tedeschi, either directly or with solicitors within the ODPP, up to the date of that advice and thereafter in preparation for the plaintiff’s trial, and all contact between A/Prof Cross, Det Insp Jacob and other members of the NSW Police Force up to and including the plaintiff’s trial.

4. [302]

   Many of the documents in the exhibit were the subject of cross-examination of each of Det Insp Jacob, A/Prof Cross and Mr Tedeschi as the plaintiff sought to develop his case that they should each be regarded as prosecutors. Many of the documents in the exhibit were also relied upon as a primary source of evidence to establish the elements of the tort, in particular, the element of malice.

5. [303]

   Understandably, not every document in the exhibit (in excess of 1000 folio pages) was referred to in the plaintiff’s final submissions. Indeed, the great bulk of them were not. However, in order to consider, in the first instance, the plaintiff’s submission that each of A/Prof Cross and Det Insp Jacob should be regarded as prosecutors in accordance with the principles in Brain as they apply in this case, it is necessary to refer to all of the relevant documents and, in respect of some, to set them out in full.

6. [304]

   By way of background, the first contact with A/Prof Cross by anyone involved in Ms Byrne’s death was by Det Insp Wyver in 1998 during the second phase of the police investigation and, it would seem, at the suggestion of Deputy State Coroner Abernathy with whom A/Prof Cross had some previous dealings in the coronial enquiry into the 1998 Sydney to Hobart yacht race.

7. [305]

   It also seems to be common ground that Det Insp Wyver’s initial contact was to seek A/Prof Cross’s opinion as to whether, having regard to the distance Ms Byrne was found from the base of the 30-metre vertical cliff at Watsons Bay, she could have jumped or whether she must have been pushed. A/Prof Cross informed Det Insp Wyver (although apparently no note was made of it in police records at any time by anyone) that the distances quoted were consistent with a jump but not consistent with a push. A/Prof Cross’s working notes where he addressed that issue were the first document in Ex 108(1). [30]

8. [306]

   A review of the evidence obtained during the course of the inquest relevant to how Ms Byrne came to be found deceased on the rocks at the base of the cliff (such as it was) was included in Det Insp Jacob’s letter to A/Prof Cross sent (by email) on 23 September 2003. [31] On that date, Det Insp Jacob recorded [32] in e@gle.i that he had initiated contact with A/Prof Cross in December 2002 as a result of A/Prof Cross contacting the Coroner’s Court and complaining that he had not been paid for the professional services he provided in the course of the inquest. Det Insp Jacob reported that he spoke with A/Prof Cross, apologised for the lack of communication and said that he would make arrangements for him to formalise his opinion by way of a written report and that he would attend to satisfying his outstanding invoice promptly. No record of that contact was included in the police progress reports (separately tendered as Ex 98A), although nothing appears to turn on that.

9. [307]

   A/Prof Cross was cross-examined in these proceedings about his motivations in making contact with the Coroner in December 2002, and the assertion in his book published in 2009 that he wrote to the Coroner because he was concerned that police were not “interested in measurements and calculations” [33] and that:

10. [308]

    He went on to say that he raised with the Coroner that he had not been paid for the advice that he gave to Det Insp Wyver.

11. [309]

    Both in the cross-examination of A/Prof Cross and in final submissions, the plaintiff sought to make much of what was alleged to be A/Prof Cross’s pecuniary motivations in forging a relationship with the police investigating Ms Byrne’s death, evidenced, so it was submitted, not only by his unsolicited correspondence with the Coroner, but also by the numerous unsolicited emails with Det Insp Jacob both before and after he was formally retained as an expert forensic consultant on 25 September 2003 [35] , and his frequent suggestions thereafter that he be engaged (for a fee) to conduct various experiments to be styled by him. The plaintiff also sought to establish that A/Prof Cross’s unilateral contact with the media, including the producers of the “60 Minutes” program, was evidence of the lengths to which he went to promote himself, hoping to utilise the high profile investigation into Ms Byrne’s death to advance his career as a forensic expert within law enforcement and to attract media attention as a consequence. This, in turn, was said to be evidence of his malice as a prosecutor.

12. [310]

    It will only be necessary to refer further to A/Prof Cross’s alleged pecuniary motives or the plaintiff’s contention that he was motivated to advance his profile as a forensic expert if I am satisfied that he should be treated as a prosecutor as a matter of law. Those considerations do not inform whether he should be so regarded. Were I satisfied he was a prosecutor (which, as I make clear later, I am not), such pecuniary motivations as might be established by the evidence, and other motives ulterior to invoking the processes of the criminal law, would be relevant to the issue of malice.

13. [311]

    The submissions the parties have directed to the issue of A/Prof Cross’s motivations in accepting the role of an expert forensic consultant, and his engagement in that capacity first by Det Insp Jacob and then as a Crown witness will also only be relevant in the event that the plaintiff establishes that he is a prosecutor as a matter of law. Importantly, there were no submissions advanced by the plaintiff that the Court would find relevant dishonesty in A/Prof Cross’s dealings with Mr Tedeschi and/or Det Insp Jacob because his motivations were venal or to advance his career as a forensic consultant.

14. [312]

    To the extent that A/Prof Cross has represented in journal articles and in his evidence that he was disinterested in receiving any payment for his oral advice to Dep Insp Wyver, and that he had no contact at all with NSW Police after providing that preliminary oral advice before he was next contacted by Det Insp Jacob, he is contradicted both by the entry in e@gle.i and in his book. The plaintiff relies upon that fact, amongst a range of other matters, as reflecting adversely on A/Prof Cross’s credit. Issues of credibility have some significance on the question of whether the plaintiff has proved that A/Prof Cross should be found to have the status as a prosecutor, although that question is unlikely to be resolved by reference to issues of credibility alone.

15. [313]

    On 16 September 2003 [36] , prior to sending the formal instructing letter to A/Prof Cross on 25 September 2003, Det Insp Jacob sent an email and, after apologising for the initial contact with NSW Police through Det Insp Wyver not being dealt with appropriately, he undertook to meet A/Prof Cross’s fees promptly. Det Insp Jacob asked that he express his findings in a report “in order that they may be presented to the Coroner’s Court through the brief of evidence”. [37] It is clear that, as at September 2003, all Det Insp Jacob was seeking from A/Prof Cross was a written report of the results of the inquiry Det Insp Wyver had made of him in 1998 concerning the issue of the distance Ms Byrne’s body was located from the cliff which was thought (it seems by the Coroner) to be suspicious. (I note there was no expert evidence adduced at the inquest to address that issue. Assuming Det Insp Wyver reported to the Coroner the oral advice from A/Prof Cross, it was not reproduced in the transcript of the public hearing.)

16. [314]

    A/Prof Cross responded by email the following day. [38] He asked whether Det Insp Jacob wished him to include his “physics calculations” or whether a summary of the results was sufficient. He went on to say:

17. [315]

    Det Insp Jacob responded by email [40] and advised A/Prof Cross of the existence of a photogrammetry plan (which the evidence established was prepared in 1999) which he offered to deliver. He also offered to meet the costs of any additional work done referable to the plans. Det Insp Jacob apologised again for not seeking the written report many years earlier which he attributed to staff movements and the matter simply “slipping through the cracks”. [41] He concluded by welcoming the fact that the matter had come to light and that A/Prof Cross was willing to resolve it by furnishing the report as requested. He also welcomed the inclusion of A/Prof Cross’s calculations, together with a summary of his opinion based on those calculations. I note that in the information provided to him by Det Insp Wyver in 1998, A/Prof Cross was invited to consider that: (a) Ms Byrne’s body landed 9 metres from the base of a cliff that was 30 metres high; and (b) there was a fence at the top that prevented her taking a running jump directly outwards, on the basis of which he calculated that it would take 2.47 seconds to descend at a horizontal speed of 3.6 m/s, which he considered was consistent with a jump but not a push. The launch speed varied considerably in the reports A/Prof Cross furnished between 2003 and 2008.

18. [316]

    Within approximately half an hour of receiving Det Insp Jacob’s email of 18 September 2003, A/Prof Cross responded, volunteering his services for a series of “simple pushing and jumping experiments” [42] which he suggested might address what he described as “possible variations” [43] on the conclusions he reached in his oral advice to Det Insp Wyver. He said in the email:

19. [317]

    He went on to offer experiments of various kinds for what he considered:

20. [318]

    Three hours later A/Prof Cross sent a further (unsolicited) email to Det Insp Jacob:

21. [319]

    On 23 September 2003, A/Prof Cross sent a further (unsolicited) email to Det Insp Jacob in which he queried whether he was right to assume that the cliff face was vertical as a “non-vertical, outwards slope near the top would act like a slippery dip” [47] and stated if the photogrammetry plan showed an outward slope of that kind he would re-do his calculations.

22. [320]

    It is clear that it was A/Prof Cross’s largely unsolicited emails raising issues and concerns about the thoroughness of his oral report to Det Insp Wyver that precipitated the lengthy letter sent by Det Insp Jacob (by email) on 23 September 2003 in which, in my assessment, his response (or lack of response) to the unsolicited and volunteered thoughts and offers of experiments of various kinds is measured, perhaps even deferential in tone, but firm. That assessment is supported by an e@gle.i entry by Det Insp Jacob of the same date where he recorded the consideration he had given to sanctioning the experiments that A/Prof Cross had proposed, concluding:

23. [321]

    It is instructive to set out the letter of 23 September 2003 in full:

24. [322]

    The defendant submitted that it is abundantly clear from Det Insp Jacob’s letter that, as he saw it, any opinions A/Prof Cross had expressed to that date, including his oral report to Det Insp Wyver during the inquest, had been made on an incomplete basis, in the sense that they were not based on the photogrammetry plan or such photographs as were available, such that his opinion that the speed of descent was consistent with a jump but not a push must be taken as provisional only, given that he did not provide a written report in which that opinion was expressed as a concluded and considered view.

25. [323]

    The defendant submitted that it is also clear from the text of the letter that the investigation into Ms Byrne’s death was continuing and that engaging A/Prof Cross as an appropriately qualified physicist, at a time when the investigation was drawing to a close, was also appropriate, as was Det Insp Jacob’s primary focus on the coronial jurisdiction. The defendant submitted, that being the case, and having regard to the nature of Det Insp Jacob’s communications with A/Prof Cross which preceded the letter, the plaintiff’s contention that Det Insp Jacob was intent on using A/Prof Cross as the mainstay of a case that Ms Byrne had been murdered, irrespective of the validity of his views, cannot be supported. I accept that submission.

26. [324]

    A/Prof Cross responded to Det Insp Jacob’s letter of 23 September 2003 addressing each of the non-exclusive possibilities to which Det Insp Jacob had referred seriatim in dot point. He did that (as the text of the letter makes clear) not because Det Insp Jacob invited a response structured in that way. What Det Insp Jacob requested was a report consistent with the views A/Prof Cross had expressed to Det Insp Wyver in 1998, Det Insp Jacob having politely declined A/Prof Cross’s offer of further investigations and experiments. Nonetheless, A/Prof Cross responded as follows:

27. [325]

    Contrary to Det Insp Jacob’s expressed view that from a police perspective that there was no way of knowing how Ms Byrne left the cliff top, A/Prof Cross volunteered the opinion that he could see only two possibilities: “Jump or being thrown by 2 people” [51] . He went on to say that he estimated (he used the word “guessed”) the throw speed to be at a maximum of 2 m/s; a matter susceptible, in his view, to simple measurement, before volunteering the comment: “I can barely lift 50 kg let alone throw it, but I’m 60 years old” [52] .

28. [326]

    He then said that having regard to the distance from the cliff top to where Ms Byrne’s body was found (being 9m), and the height of the cliff (being 30m), that a simple calculation of the speed that Ms Byrne left the cliff top was “between 3.5 and 3.7 m/s” [53] .

29. [327]

    The following day, in a further unsolicited email [54] , A/Prof Cross shared his thoughts concerning the launch speed after having asked some tennis players he was filming to throw a 27kg punching bag held end to end after swinging the bag back and forth a few times.

30. [328]

    He said the bag was tossed at about 3.3 m/s (he did not make clear whether this was a measured or estimated speed). He went on to say [55] :

31. [329]

    In a series of handwritten notes (which A/Prof Cross gave evidence were recorded by him in his “Blue Log Book 1” as “comments” which Det Insp Jacob had made in the course of a telephone call to discuss the requesting letter of 23 September 2003) he recorded the following: [56]

32. [330]

    It was put to A/Prof Cross in cross-examination that from these comments he understood that Det Insp Jacob was “strongly suggesting” that the plaintiff may have thrown Ms Byrne off the Gap. A/Prof Cross agreed that he interpreted that information as a suggestion that the plaintiff may have killed Ms Byrne, but only as one of what he understood to be a number of scenarios the police considered as possibilities. He went on to say that when Det Insp Jacob told him about the so-called “tell-tale bruising” around Ms Byrne’s chest, Det Insp Jacob said he did not know what it meant. A/Prof Cross said he did not know what it meant either. He said that they were simply discussing what the so-called bruising could have meant in the context of Det Insp Jacob relating to him a few facts, amongst what A/Prof Cross considered must have been hundreds of facts known to Det Insp Jacob as the officer in charge of the investigation. After he gave that evidence, I asked the following questions:

33. [331]

    The content of the conversation in the Blue Log Book 1 extracted above was pleaded at pars 16.22.1-16.22.5 of the FASC as a particular both of Det Insp Jacob’s malice and as evidence of his lack of subjective belief in the sufficiency of the evidence to establish the plaintiff’s guilt. The plaintiff submitted that the information Det Insp Jacob provided to A/Prof Cross was both irrelevant and prejudicial and ought not have been disclosed or discussed by Det Insp Jacob when engaging a purportedly independent expert to offer an opinion as to how Ms Byrne’s body could have reached the location where it was found. Det Insp Jacob responded to that allegation in his evidence by denying that the issues or matters A/Prof Cross noted following a conversation with him were either irrelevant or prejudicial. He said:

34. [332]

    Det Insp Jacob was cross-examined on the content of that note in the proceedings, as to which he gave the following explanation and justification for having shared that information:

35. [333]

    Even if it might have been unwise or ill-advised to have shared this information informally with an expert witness (a view which I hold), particularly given A/Prof Cross’s tendency, as revealed by his subsequent dealings with Det Insp Jacob, to ruminate and speculate as to the circumstances contextual to Ms Byrne’s death and to volunteer views about the plaintiff’s guilt, since none of the information was false (or known to Det Insp Jacob to be false), disclosing it to A/Prof Cross does not advance the plaintiff’s case that Det Insp Jacob should be regarded as a prosecutor, the primary proposition the plaintiff needs to establish before inviting the Court to consider whether his conduct as a prosecutor was tortious.

36. [334]

    After Det Insp Jacob had obviously read and given consideration to A/Prof Cross’s comments on the various hypotheses he had advanced in his requesting email as to how Ms Byrne left the cliff top, on 25 September 2003 (erroneously recorded in e@gle.i as 25 November 2003) Det Insp Jacob made a further entry in e@gle.i [60] . From that entry it is clear that Det Insp Jacob apparently accepted that Ms Byrne could not have simply allowed herself to fall from the cliff top because she travelled at 3.6 m/s, and could not have stepped or fallen backwards for the same reason and that the further investigations proposed by A/Prof Cross to support his conclusion that she either jumped or was thrown should now be pursued. Det Insp Jacob also recorded in e@gle.i his intention to prepare a formal “consultancy document”, together with briefed materials, and to request that A/Prof Cross answer a series of specific questions in a written report.

37. [335]

    In a follow up e@gle.i entry on 26 September 2003, [61] Det Insp Jacob confirmed the necessity, as he saw it, for A/Prof Cross to conduct a limited number of experiments to assist in producing his report. He also noted that authority to proceed with the experiments on a consultancy basis was sought and later confirmed by Senior Command.

38. [336]

    On 25 September 2003 a three page letter [62] was sent to A/Prof Cross in which the matters that had been discussed by the exchange of emails with Det Insp Jacob were reformulated and a formal expert consultancy report requested. By way of introduction the letter included the following:

39. [337]

    The letter went on to specifically include Sgt Powderly’s five page statement of 13 June 1996 together with a video reconstruction of the recovery filmed on 29 May 1996 and transcripts of Sgt Powderly’s evidence at the inquest. A photogrammetry plan prepared by Snr Cst Streatfield on 2 March 1999 was included, together with what was described as “three photographs of the relevant areas at the Gap”. [64] One of the three photographs was captioned as showing a general view looking to the rock floor from the Gap which was marked with an arrow captioned as showing what was later referred to as Hole B. The photogrammetry plans were also prepared referable to the assumption that Hole B was the cavity from which Ms Byrne’s body was recovered.

40. [338]

    The letter went on to make the following formal request for expert advice:

41. [339]

    I note that despite the allegation pleaded in par 16.21 of the FASC that Det Insp Jacob declined to formally engage A/Prof Cross until he expressed the opinion that “there are only two possibilities, jump or being thrown by two people”, that was not put to Det Insp Jacob in cross-examination, and since the plaintiff did not prepare final submissions referable to the specific pleadings, I shall proceed on the basis that allegation was pressed. In Det Insp Jacob’s statement of 28 September 2016, however, he deals with that allegation in a narrative denial. Those denials ought, in my view, be set out in full. They serve to underscore what I am satisfied were Det Insp Jacob’s genuine endeavours to maintain an appropriate professional distance in his dealings with A/Prof Cross, despite A/Prof Cross’s tendency to volunteer his unsolicited thoughts and ideas about a range of matters and, at times, to seemingly steer the terms upon which he was retained to consult to suit an approach to the issue that he wished to formulate. Det Insp Jacob said:

42. [340]

    On 26 September 2003 A/Prof Cross sent an email [67] to Det Insp Jacob reporting that he had purchased two 40kg sandbags which he proposed to have a “strong student” throw from rest or after taking a short run. He also observed that caber throwers in Scotland can throw 60kg and Olympic athletes can throw a 7kg shotput with one hand at 13 m/s, being, as he assessed it, twice the kinetic energy needed to throw a 57kg person at 3.6 m/s. He concluded that it “seem[ed] certain that a strong guy could toss a 57kg person at the right speed on his own”. He proposed undertaking some filming that afternoon.

43. [341]

    The plaintiff relied upon this email, amongst others, as illustrative of A/Prof Cross seeing it as his role to obtain evidence to prove that Ms Byrne was murdered and that the plaintiff had killed her. The plaintiff submitted as follows:

44. [342]

    In the plaintiff’s submissions in reply, that submission was maintained on the additional basis that over the course of A/Prof Cross’s involvement in the investigation as a prosecutor – that is, on the plaintiff’s case, from September 2003 to the date of Mr Tedeschi’s advice to Mr Cowdery in February 2006 – the Court would conclude the experiments he conducted and the opinions he proffered “only ever point in one direction”.

45. [343]

    Irrespective of what is said by the plaintiff to be A/Prof Cross’s desperation to be involved in the investigation and the plaintiff’s further submission that his conclusions were only ever oriented to a throw as the explanation for Ms Byrne travelling the distance from the cliff top to the point where she landed on the rock floor, that, of itself, has no bearing on whether A/Prof Cross is a prosecutor as a matter of law unless the plaintiff establishes that in proffering those opinions he intended deliberately to mislead Mr Tedeschi and/or Det Insp Jacob knowing that his proffered conclusion that she was thrown to her death was either not open or not objectively supportable or both.

46. [344]

    The defendant submitted that there is no proper basis on the evidence for the plaintiff to advance the submission that A/Prof Cross was either “desperate” to ingratiate himself or that he was other than open to considering a range of possible explanations for how Ms Byrne descended to her death. The defendant also submitted that the numerous reports authored by A/Prof Cross that followed upon his first report of 19 November 2003, [69] including, in particular, the second report in June 2004 after the point of recovery had been re-appointed from Hole B to Hole A, showed his willingness, upon receipt of further information, to abandon or modify his earlier opinions or conclusions including the results he derived from the experiments he conducted and his detailed description of how the results were achieved. The defendant submitted this counters against the submission that A/Prof Cross was desperate to be involved in the case, and determined to prove Ms Byrne was murdered, to ensure his continued involvement in the investigation and the trial and even less that he intended to dishonestly mislead Mr Tedeschi. The defendant also emphasised that in the draft report sent by email at 12:40pm on 29 September 2003 [70] (as to which see [345] below), A/Prof Cross’s view that there was nothing “in the physics of the problem” to allow him to distinguish “between a jump or a throw” is hardly the opinion of an expert said to be desperate to prove a murder.

47. [345]

    The allegation put to A/Prof Cross in cross-examination that he deliberately deleted from his computer records the first report sent in draft to Det Insp Jacob by email on 29 September 2003 when he answered a subpoena calling for the production of all email correspondence with the investigating police at the plaintiff’s trial would also, if proved, be relevant only to proof of the elements of the tort of malicious prosecution. The plaintiff did not advance the submission that the deletion of the draft report, either of itself or in combination with other evidence, establishes the dishonesty that is fundamental to the plaintiff’s case that A/Prof Cross is a prosecutor at law. That also follows since the alleged deletion of the draft first report and parts of the emails that followed occurred, if it occurred at all, in 2008 which is after the time, on the plaintiff’s case, that he acted as a prosecutor. Additionally, since the draft report and the full text of the emails were received and retained by Det Insp Jacob, any suggestion that it was A/Prof Cross’s intention to mislead Det Insp Jacob by the views he expressed in those emails is neutralised.

48. [346]

    Notwithstanding, the plaintiff maintained the submission that the draft first report and the related emails were deleted or deliberately edited by A/Prof Cross to conceal from the plaintiff’s lawyers that he had undertaken no relevant experiments to support the proposition in the first report that a 57kg woman could be thrown faster than she could jump, and to conceal his lack of expertise generally in formulating any appropriate experiments to test that proposition. This was said to reflect adversely on his credit generally. I have already observed that adverse credit findings are unlikely to be determinative of the question whether A/Prof Cross should be regarded as a prosecutor.

49. [347]

    The defendant submitted that the draft report does not exclude suicide as a possibility but, rather, that A/Prof Cross was unable to distinguish from what he called “the physics of the problem” between a deliberate jump and a deliberate throw. This undercuts the plaintiff’s attribution of a motive to A/Prof Cross to deliberately delete the draft report when obliged to produce it under subpoena. In the draft report, A/Prof Cross concluded, and in categorical terms, that Ms Byrne did not trip or accidentally fall and neither was she pushed, each of which would have generated a low launch speed in circumstances where the launch speed he calculated was 3.8 m/s or greater.

50. [348]

    The defendant also submitted that A/Prof Cross has proffered in his evidence in these proceedings a reasonable account of the circumstances in which the emails were incomplete when he sought to retrieve them to answer the subpoena (namely as a result of a computer malfunction) and the difficulties he encountered in rebuilding lost data. The defendant submitted this evidence would deprive the Court of any reasoned basis for finding that A/Prof Cross deliberately deleted materials so as to deflect the plaintiff’s forensic enquiries at trial into the provenance of his ultimate opinion that Ms Byrne was thrown to her death.

51. [349]

    While A/Prof Cross’s explanation for the deletion of the draft report is an available explanation, I am by no means persuaded that it is the only explanation for what I suspect might well have been his deliberate manipulation of the full complement of materials he was obliged to produce to the Court at the plaintiff’s trial. In his evidence he admitted to acting “dishonourably” when served with a subpoena:

52. [350]

    I am also unable to see how the material allegedly deleted has relevance to the question whether A/Prof Cross deliberately and dishonestly misled Mr Tedeschi or Det Insp Jacob such as to cause their discretion as prosecutors to miscarry. The position might be otherwise were the draft report different in material respects from the opinions expressed in the settled and served first report. Upon a comparative reading of the close-typed seven pages of the draft report with the close-typed twenty pages of the furnished report, I am unable to see any relevant point of contrast or contradiction between them, particularly given the experiments A/Prof Cross undertook before providing the settled first report, experiments which he considered provided a more reliable means of assessing launch speeds by throwing volunteers into a swimming pool.

53. [351]

    The day after sending the draft report by email, A/Prof Cross sent an email in which he said, having reflected on his draft report, he wished to add the following:

54. [352]

    Within approximately half an hour, Det Insp Jacob responded to that email, acknowledging receipt of the draft report together with the additional opinion in the immediately preceding email which he understood was to be read with the draft report. Det Insp Jacob proposed that the settled report include, as a matter of structure only, a summary at the beginning of the report referable to the questions which were raised in his formal requesting letter. Det Insp Jacob concluded the email by thanking A/Prof Cross and indicating that he would place a telephone call to him over the forthcoming days.

55. [353]

    This puts to rest any suggestion that Det Insp Jacob was misled by what were A/Prof Cross’s views as at 30 September 2003 upon reading the draft report, since those views ultimately found further expression in the settled form of the report.

56. [354]

    In his evidence in these proceedings, I invited A/Prof Cross to explain what experiments involving the throwing of dummies and volunteers added to the “physics of the problem” as he described it in his email of 30 September 2003 that were not obvious to him before any poolside experiments were conducted. He gave the following evidence: [73]

57. [355]

    This evidence is significant for what it does not reveal about the limitations on the poolside experiments. While humans might well perform differently to moulded “dummies” when thrown (as A/Prof Cross predicated), his experiments did not (because they could not) simulate throwing a struggling person and failed (as I will later discuss) to adequately validate how an unconscious and limp woman could be thrown to achieve the necessary launch speed to reach either Hole A or Hole B.

58. [356]

    By successive emails on 2, 3, and 8 October 2003, [75] A/Prof Cross requested additional information, including time of death and rates of advancement of rigor mortis. He also proposed that further investigations be undertaken, including an assessment of the degree of ambient light at the cliff edge at the Gap to assess its impact on the possibility, or not, of anyone seeing the edge of the cliff. In an email of 2 October 2003 [76] he volunteered his thoughts that a run and a jump might be impossible in the dark as it would also make it difficult for a person to throw someone over a fence. These queries culminated in him expressing the view in an email on 14 October 2003 that if he were in a pitch black environment, there is no way he would run or jump (presumably off a cliff). Det Insp Jacob did not respond to these emails.

59. [357]

    In the same email sent on 14 October 2003, A/Prof Cross said:

60. [358]

    A/Prof Cross’s musings continued to be expressed in a further email of 21 October 2003 when he enquired about the degree of moonlight. He said:

61. [359]

    Receipt of these three emails were noted by Det Insp Jacob in an e@gle.i entry [79] of 25 November 2003, albeit without commentary.

62. [360]

    Det Insp Jacob did however arrange for the poolside experiments which A/Prof Cross proposed be conducted. In corresponding with the various female volunteers (all police officers) who had agreed to participate in the experiments Det Insp Jacob said:

63. [361]

    On 23 October 2003 the results of the throw tests were reported by A/Prof Cross in an email to Det Insp Jacob:

64. [362]

    The fact of the experiments having been conducted was also reported by Det Insp Jacob in e@gle.i. [82]

65. [363]

    After reviewing the video recording of these tests, A/Prof Cross indicated in an email [83] to Det Insp Jacob on 27 October 2003 that the fastest throw (of 3.68 m/s) was where the volunteer’s weight was taken on the shoulders of the thrower so that her arms were free to project herself forwards horizontally at maximum speed. He also reported that the volunteer was pushed from one hip, and in the middle of her body to avoid rotation around her centre of mass and a loss of energy in rotation. (This would appear to be the genesis of the spear throw.)

66. [364]

    The plaintiff submitted that A/Prof Cross’s state of mind in conducting these experiments is revealed by him also reporting on 23 October to Det Insp Jacob that:

67. [365]

    In the plaintiff’s submission it is at least implicit that A/Prof Cross had predetermined the outcome he hoped to demonstrate from the poolside experiments, because he used concepts such as throw speeds that were “too low” and “needing a launch speed of 3.8 m/s or more”. In the defendant’s submission, that language, whilst suggestive of the conduct of an experiment designed to prove a particular proposition, on closer analysis indicates nothing more than an experiment directed to whether a particular situation (namely a greater launch speed) was possible. In short, the defendant submitted that there was nothing to support the submission that A/Prof Cross’s approach to the first raft of poolside experiments was either unscientific or that he set out by experimentation to prove a predetermined conclusion. The integrity of the experiments and the environment in which they were conducted will be analysed later.

68. [366]

    By email on 3 November 2003, A/Prof Cross advised Det Insp Jacob that he was close to finalising his calculations and measurements for inclusion in the final settled report. He offered his conclusions and invited Det Insp Jacob’s comments:

69. [367]

    Further throw tests conducted on 7 November 2003 [86] , this time with a 57kg dummy, resulted in a hypothetical throw from inside the safety fence at the Gap of 4.5 metres per second or more, and a throw or jump from the cliff edge closest to the landing point (Hole B) of 3.8 metres per second. In A/Prof Cross’s view, this ruled out a throw by one person, irrespective of the launch point, as it did a throw from behind the safety fence even with two people, unless the people were “much stronger” than the throwers he used in the experiments.

70. [368]

    Variations on the “throw experiments” were the subject of ongoing commentary and report by A/Prof Cross by email to Det Insp Jacob, none of which Det Insp Jacob responded to, but which were noted in an e@gle.i report of 25 November 2003 in summary. [87] It is also clear that A/Prof Cross attended at the Gap during this period. On one occasion, A/Prof Cross indicated that he would benefit from a “profile of the slope at the top platform area of the Gap cliff top” [88] . Det Insp Jacob noted that arrangements were to be made for Det Streatfield to liaise directly with A/Prof Cross on that issue.

71. [369]

    It is clear from an email that A/Prof Cross sent after furnishing his first report dated 19 November 2003, [89] that in concluding that the most likely cause of death was as a result of Ms Byrne running over the edge of the cliff in the dark, and a less likely possibility that she was thrown by one or two people, he not only proceeded on the understanding that Hole B was the point of landing, but ignored the configuration of her body on landing. So much is clear, not only from the emails he sent after service of the first report but from the further experiments he proposed be undertaken in order to take account of those objective facts.

72. [370]

    It would also appear that it was as a result of A/Prof Cross’s further consideration of the configuration of Ms Byrne’s body on impact that Det Insp Jacob alerted those to whom the Sufficiency of Evidence Report was delivered that a supplementary report from A/Prof Cross would be provided as soon as it was available.

73. [371]

    That said, throughout the Sufficiency of Evidence Report, including in the Executive Summary, Det Insp Jacob cited reliance upon A/Prof Cross’s first report to discount what Det Insp Jacob described as:

74. [372]

    In Det Insp Jacob’s analysis of all of the evidence available to Strike Force Irondale by the date of its termination in January 2004, any inference that Ms Byrne’s death was an accident or misadventure was in his view capable of being excluded beyond reasonable doubt. The case which he considered it was open to establish (again where A/Prof Cross’s first report was cited as the source) was as follows:

75. [373]

    In an e@gle.i report of 25 November 2003, [92] Det Insp Jacob recorded that he met with A/Prof Cross on 19 November 2003 to discuss the report and any other concerns that A/Prof Cross may have had. That meeting was noted in A/Prof Cross’s Blue Log Book. It was the subject of the cross-examination of Det Insp Jacob in the proceedings, A/Prof Cross having attributed to him in a notebook entry views about the strength of the case which Det Insp Jacob said were neither his views nor views expressed by him.

76. [374]

    The views attributed to Det Insp Jacob by A/Prof Cross were as follows:

77. [375]

    Det Insp Jacob disagreed that he was ever of that view or that he said what A/Prof Cross attributed to him. Det Insp Jacob gave evidence that it was not a matter he would discuss with a consultant expert in any event. He said his firm view as at 19 November 2003 (as evidenced in the Sufficiency of Evidence Report submitted in January 2004) was that “the case” was sufficient to support the laying of charges. He went on to say, however, that whether a prosecution would ultimately be initiated was always a live issue given that the second phase of the investigation was under the direction of the Coroner and, in the event that legal advice from the Legal Operational Service and/or from the ODPP did not support the laying of a murder charge after the work done by Strike Force Irondale, it may revert to the Coroner for his further consideration. I accept that Det Insp Jacob’s actual opinion as at 19 November 2003 was as he explained in his evidence. I am unable to resolve with any certainty whether he expressed himself to A/Prof Cross as A/Prof Cross claims he did, or whether A/Prof Cross has misinterpreted something said to him. Either way, I do not see that it advances the plaintiff’s case that Det Insp Jacob should be regarded as a prosecutor or, even were I of that concluded view, that it is of any particular weight in establishing either of the elements of the tortious conduct the plaintiff seeks to attribute to him.

78. [376]

    It was also put to Det Insp Jacob in cross-examination that by 19 November 2003, up to the date of his submission of the Sufficiency of Evidence Report on 8 January 2004, he had all of the significant evidence ultimately relied upon to charge the plaintiff with murder; the exceptions being the resolution of what emerged as the change in the landing place from Hole B to Hole A in the second to fifth reports of A/Prof Cross, variously furnished between July 2004 and March 2006. Det Insp Jacob disagreed with that assessment identifying what he described as “a considerable body of material” [94] in addition to the reports of A/Prof Cross which was assembled after January 2004, including the reports of Prof Elliott and Prof Fulde, as well as a number of other clarifying statements from witnesses who had earlier provided statements to officers of Strike Force Irondale.

79. [377]

    The plaintiff invited the Court to reject Det Insp Jacob’s evidence and to accept A/Prof Cross’s notes of 19 November 2003 as a reliable contemporaneous record of Det Insp Jacob’s actual assessment of the strength of the prosecution case as at 19 November 2003. The plaintiff further submitted that the only reason the matter was being referred to the ODPP at all was to deflect political and media pressure from the NSW Police. The plaintiff submitted that attitude (supported in a sense by A/Prof Cross’s note) evidences a subjective want of reasonable or probable cause on the part of Det Insp Jacob as a prosecutor, a position that the plaintiff submitted did not materially change from 2004 when the brief of evidence was assembled, to 2006 when Det Insp Jacob charged the plaintiff with murder.

80. [378]

    That submission is squarely contradicted by the detail given in Det Insp Jacob’s statement of the number of reports and statements that were obtained in 2004 and following, as it is by the detailed analysis of the results of the three phase investigation in the Sufficiency of Evidence Report. Further, I reject the plaintiff’s submission that Det Insp Jacob’s referral of the matter to the ODPP was to deflect political and media pressure. The course of the investigation by Strike Force Irondale under Det Insp Jacob’s command, together with what I regard as his conscientious and cautious approach as a senior investigator, including having to contend with an expert in the manner and persuasion of A/Prof Cross, satisfies me that his motivation, at all times, was to thoroughly investigate the sufficiency of the evidence that had been assembled by Strike Force Irondale to support a charge of murder against the plaintiff – a person who he considered was involved in the death of Ms Byrne and a suspicion which he regarded as warranting close consideration by the prosecuting authorities.

81. [379]

    On 21 November 2003 A/Prof Cross’s first report was formally produced to Strike Force Irondale, a copy of which was scanned and attached to the e@gle.i report of the same date [95] . The conclusion A/Prof Cross expressed in that report, shortly stated, reads as follows:

82. [380]

    In cross-examination of both Det Insp Jacob and A/Prof Cross a great deal of attention was directed to the deletion of the word “accidentally” from the draft report in the final version at Det Insp Jacob’s suggestion. It seems to me, however, that it is at least reasonable to assume that this was not an attempt by Det Insp Jacob to manipulate or skew the conclusions which were A/Prof Cross’s to express, but rather to ensure that A/Prof Cross did not trespass into volunteering views that were based on nothing other than supposition. Given the content of A/Prof Cross’s emails to which I have referred above (many of which, as I have noted, include unsolicited musings and volunteered thoughts of no conceivable relevance to the furnishing of the opinion of an expert), it is also reasonable to assume that Det Insp Jacob’s concern was to ensure that the (final) first report was consistent with the basis upon which A/Prof Cross was retained as a forensic consultant, and that he did not venture into areas that were not his to be concerned with. Importantly, and of potentially greater significance, is the e@gle.i report of the meeting of 19 November 2003 [97] which records Det Insp Jacob’s discussion about the inclusion or deletion of the word “accidentally” in the summary conclusions expressed on the first page of the report, and that the issue was discussed and resolved with the word “accidentally” being deleted due to the possibility of it “leaving a false premise”.

83. [381]

    In cross-examination, A/Prof Cross accepted that it was at Det Insp Jacob’s suggestion the word “accidentally” should be deleted from the first report. When asked in cross-examination as to what he considered Det Insp Jacob might have meant when he described the inclusion of the word “accidentally” as leaving a “possible false premise”, he said:

84. [382]

    When Det Insp Jacob was cross-examined about the same issue, he said:

85. [383]

    He was then asked:

86. [384]

    On one analysis, the deletion of the word “accidentally” in the passage of the first report extracted above does not skew the conclusion from a possible suicide. To the contrary. With the word “accidentally” left in, A/Prof Cross’s conclusion that Ms Byrne either ran and jumped off the cliff, or was thrown, cannot follow. It is hardly conceivable that she “accidentally” ran off the cliff at such velocity so as to achieve the launch speed required to reach Hole B, the landing point considered by A/Prof Cross when submitting his first report, both in draft and final form. That being the case, it is difficult to sensibly attribute mala fides to Det Insp Jacob proposing the word “accidentally” be deleted, or to A/Prof Cross in accepting that it should be deleted. While this analysis was not proffered by either the plaintiff or the defendant in final submissions, I consider it is an available analysis.

87. [385]

    The fact that it was only in the process of discovery in these proceedings that it became clear the word “accidentally” was removed does not alter my finding. Having recorded both the fact of the discussion with A/Prof Cross and the basis for the recommended removal of the word “accidentally” in the e@gle.i database, an official record of the ongoing investigation, is further evidence, in my view, of a lack of mala fides on the part of Det Insp Jacob.

88. [386]

    In final submissions the plaintiff submitted that the meeting on 19 November 2003 was illustrative of the state of mind of both Det Insp Jacob and A/Prof Cross. It was submitted that the Court would draw the conclusion from Det Insp Jacob’s implied insistence that “accidentally” be removed that he intended that the report would be consistent with murder and that it would exclude any hypotheses other than murder. I am satisfied that nothing contained in the record of the meeting is capable of supporting that submission.

89. [387]

    Further, that there might have been a discussion about the comparative processes of a coronial inquiry and trial procedure at the meeting on 19 November 2003 as the plaintiff submitted is a wholly inadequate basis upon which to conclude (as urged by the plaintiff) that A/Prof Cross knew, from what he was told by Det Insp Jacob, that the case would not proceed further unless he provided an opinion which would exclude the possibility of suicide. A/Prof Cross’s view, expressed in the first report, that the most likely cause of death was that Ms Byrne ran over the cliff to her death, is contrary to what the plaintiff contends was the effect of the meeting on 19 November 2003, since A/Prof Cross has clearly not done what it is alleged Det Insp Jacob asked of him, namely, provide a report which excluded suicide. Notwithstanding that analysis, the plaintiff maintained the submission that the content of the first report establishes that the objective of his consultancy (presumably as A/Prof Cross interpreted it) was to prove Ms Byrne was murdered. The plaintiff submitted that was a conclusion the Court would draw for the following reasons:

90. [388]

    The plaintiff went further to submit that by assessing the possibility that Ms Byrne’s death resulted from her running over the edge of the cliff in the dark, but failing to consider the position in which she impacted with the rocks below, namely head first and wedged into a rock formation waist deep, is a further illustration of A/Prof Cross’s lack of expertise to express the opinion in the first report illustrating that he “selectively relied upon qualifications to express the opinions he wanted, and he knew Det Insp Jacob and the police wanted”. [102]

91. [389]

    In his submissions in reply, the plaintiff maintained the submission that Det Insp Jacob’s objective in retaining A/Prof Cross as a consultant, and A/Prof Cross’s purpose in providing his first report in that capacity, was to prove Ms Byrne was murdered. The plaintiff submitted that conclusion is mandated when account is taken of the reasons why running experiments were commenced after throwing experiments failed to give the desired result; the failure in the first report to exclude throwing as a possibility despite the experimental results which were inadequate to make out the case that she might have been thrown; repeating results on jump speeds despite having conducted a single successful test of a jump speed in excess of 3.8 metres per second; and Det Insp Jacob’s use of the report as part of the evidence on which he relied in expressing the views he expressed in the Sufficiency of Evidence Report that suicide could be excluded beyond reasonable doubt.

92. [390]

    In considering that submission, account must be fairly taken of the series of propositions put to A/Prof Cross in cross-examination and his answers:

93. [391]

    For his part, in the e@gle.i report of 25 November 2003, [104] Det Insp Jacob emphasised that the report of A/Prof Cross should be read in full to ensure an appreciation of alternate hypotheses which are discussed or discounted. He noted that issues such as trajectory, speed, possible jumping distances, pushing measurements, throwing speed and energy, throwing measurements, running measurements, and a concluding summary and appendix were also discussed and described in detail. I do not regard this entry as supporting the plaintiff’s submission that Det Insp Jacob only retained A/Prof Cross to “prove” Ms Byrne was murdered. The submission is also contradicted by the terms of the formal consultancy letter and the reasons that A/Prof Cross was retained (as discussed earlier).

94. [392]

    For reasons which I can only attribute to the way in which A/Prof Cross came to be retained as a consultant on 25 September 2003, in the preparation of his first report he did not take into account the physical presentation of Ms Byrne’s body wedged in a crevice of rocks at the base of the cliff. This much is clear from the emails of 24 and 25 November 2003 [105] where A/Prof Cross raised, apparently for the first time, the “head first” landing into the crevice as having a bearing upon the mechanism of her descent. As will be obvious from what follows, it appears that it was A/Prof Cross’s continued musings over the significance of that factor, and his reconsideration of the place on the cliff edge from which he had assumed she was launched, that ultimately led to a site visit at the Gap being convened on 6 January 2004, attended by Sgt Powderly and other specialist police officers.

95. [393]

    On 24 November 2003 [106] , Det Insp Jacob received another unsolicited email from A/Prof Cross with the subject heading “Head first” in which he recorded his view (not expressed in the first report) that Ms Byrne landing head first into the crevice was inconsistent with her being thrown. He said, essentially, that all the throws undertaken in the poolside experiments were with the body of the volunteer or dummy launched from a horizontal position, travelling side on through the air and landing side on. He surmised that if Ms Byrne ran over the edge:

96. [394]

    To address these concerns he proposed undertaking further experiments (at additional cost). Det Insp Jacob responded, [108] noting that the inclusion of Ms Byrne’s head first landing might be by way of an addendum to his final report, but that he did not consider further experimentation would advance the issue.

97. [395]

    On 26 November 2003, [109] A/Prof Cross sent an email to Det Insp Jacob. After noting there were no abrasions below Ms Byrne’s knees (presumably because he had accessed the autopsy report), he considered it difficult to explain how she landed head first (into the crevice), if she landed head first. He went on to say:

98. [396]

    Det Insp Jacob did not respond to that email.

99. [397]

    On 5 December 2003, in A/Prof Cross’s Blue Log Book [111] under a heading “Entry Angle”, he summarises various sources of information (as he understood them to be) as to how Ms Byrne was found head first in a crevice at the base of the rocks. It would seem from his notes that he then set out, unilaterally, to consider the entry angle or angle of trajectory (from the cliff top) to account for Ms Byrne being positioned as she was found. Of critical significance is the entry in the log book which accompanied a two-dimensional line drawing of a crevice between rocks, presumably by reference to a photograph of the landing point that had been provided to him with the requesting letter of 25 September 2003 where Hole B was marked as the landing point. That was not a photograph taken in the early morning of 8 June 1995 because no photographs were taken, but a photograph taken at a later time for the purposes of preparing his report. He records in his log book that entry from some angles and not others are both “OK” [112] and “Not OK”, [113] apparently a reflection of his own thoughts after reading Sgt Powderly’s statements.

100. [398]

     On 6 December 2003 his “thoughts” are transcribed into an email to Det Insp Jacob. After summarising his understanding of Sgt Powderly’s evidence at the inquest, he invited Det Insp Jacob to ask Sgt Powderly two questions:

101. [399]

     He went on to say:

102. [400]

     In an email sent on 19 December 2003, A/Prof Cross said that he had considered the video he had been sent (clearly the 1996 reconstruction video in which Sgt Powderly participated) but said he could not get a good impression of the “shape of the crevice”. He went on to say the matter was:

103. [401]

     On 7 December 2003, Det Insp Jacob contacted Sgt Powderly by email. He summarised the questions which he said had been posed by “a professor of physics” [117] and suggested that Sgt Powderly might think it easier to speak to him directly. Det Insp Jacob offered to provide contact details.

104. [402]

     It would appear that Sgt Powderly first contacted A/Prof Cross by telephone on 18 December 2003 [118] but without leaving a telephone number, motivating A/Prof Cross to contact Det Insp Jacob to ask for the number. A/Prof Cross was ultimately advised that Sgt Powderly would contact him when he was available [119] . Det Insp Jacob also indicated in an email of 19 December 2003 [120] that Sgt Powderly may have some photos of the crevice, but, if not, they could be supplied. That prompted a response from A/Prof Cross in the following terms:

105. [403]

     That analysis of the course of correspondence between A/Prof Cross and Det Insp Jacob after A/Prof Cross furnished his first report and before Det Insp Jacob furnished the Sufficiency of Evidence Report (although it appears that the preparation of the Report was well under way by this time) runs directly counter to the plaintiff’s unqualified submission that after finalising the first report A/Prof Cross continued his investigations with the assistance and consent of Det Insp Jacob, since it fails to account for the contact being at A/Prof Cross’s initiation after he realised the significance (or potential significance) of the position of Ms Byrne’s body to the views he had reported upon. That submission was, in turn, advanced to support the further submission that A/Prof Cross was acting as a “de facto” police officer. That submission is of relevance to the question whether the defendant is to be liable for any proven tortious conduct by A/Prof Cross, not whether he is a prosecutor (who prosecuted the plaintiff maliciously and without reasonable and probable cause).

106. [404]

     Despite having no medical or biomechanical qualifications, it is clear enough that A/Prof Cross did set about considering how Ms Byrne could have entered the cavity head first given her injuries and the orientation of her body and that he did so with Det Insp Jacob’s consent. While it is clear from the correspondence which is summarised above that Det Insp Jacob encouraged contact between Sgt Powderly and A/Prof Cross, that fact alone does not support the plaintiff’s submission, even if only impliedly advanced, that Det Insp Jacob delegated any role or function of an investigator to A/Prof Cross; even less so that he authorised him to undertake further enquiries, save insofar as they were necessary to confirm the views expressed in his first report that the most likely explanation was that Ms Byrne ran and jumped to her death after taking into account the additional feature of her orientation of her body to ensure his opinions were soundly based. In his evidence, Det Insp Jacob said on more than one occasion that he considered A/Prof Cross’s engagement by police and his dealings with him as the author of the requesting letters was “absolutely professional”. He also said that he did not consider A/Prof Cross was beholden to the police in any way and that he was doing the work asked of him in a professional and thorough way.

107. [405]

     There is some force in the submission advanced by the defendant (although essentially a submission to address the plaintiff’s submission that A/Prof Cross became a “de facto police officer” in the service of the Crown) that after furnishing the first report, A/Prof Cross’s further involvement was primarily the product of his eagerness to understand all of the underlying facts and to ensure that his analysis was thorough and his experimentation was focussed and relevant. In support of that submission, the defendant referred to A/Prof Cross’s evidence where he said that he was at all times aware of the difference between his role as a consulting expert and that of an investigating officer, and that he made every attempt to adhere to the Expert Witness Code of Conduct.

108. [406]

     At pars 19-24 of A/Prof Cross’s statement dated 18 July 2016 he said:

109. [407]

     I have considerable doubt as to whether, despite his evidence, A/Prof Cross understood, or fully appreciated his obligations under the Expert Witness Code of Conduct or, if he did, whether he adhered to his obligations. In particular, there is every reason to doubt that he was rigorous in ensuring that his opinions and conclusions were qualified, where necessary, by stated assumptions and qualifications both in the reports he furnished to the police and in his evidence at the plaintiff’s trial. Further, I doubt that A/Prof Cross maintained an appropriate level of objectivity, by consciously eschewing speculation or conjecture in the process of reasoning to a conclusion of one sort or another, given the content of his reports (in particular, his later reports). However, in considering whether A/Prof Cross should be regarded as a prosecutor for the purpose of these proceedings, it is not to the point that his evidence at committal and at trial was expressed without qualification since, by that time, the way in which he expressed his opinion that Ms Byrne was probably thrown to her death, and the reasoning that supported that opinion, was in the hands of Mr Tedeschi as Crown Prosecutor. It will obviously be necessary to consider A/Prof Cross’s evidence at trial in order to review whether the way in which his evidence was adduced by Mr Tedeschi and then presented by him in final submissions establishes a want of reasonable and probable cause and malice in Mr Tedeschi’s conduct as prosecutor as contended for by the plaintiff.

110. [408]

     On 22 December 2003, A/Prof Cross advised Det Insp Jacob by email [123] that he had been contacted by Sgt Powderly and it was proposed that Sgt Powderly take him to the Gap on 6 January 2004. He went on to say in that email:

111. [409]

     On 6 January 2004, Det Sgt Quigg recorded in e@gle.i the results of the site meeting at the Gap in the following terms:

112. [410]

     During the procedure A/Prof Cross took a total of 84 digital photographs.

113. [411]

     Later that afternoon A/Prof Cross reported the results of the site visit to Det Insp Jacob via email [126] . In addressing what he considered was a “complicated problem” that presented because of the position of Ms Byrne’s body and the injuries she sustained, he asked for “profile drawings of the cavity showing three cross-sections”. [127] At Det Insp Jacob’s instigation, A/Prof Cross communicated directly with Det Sgt Streatfield in order that profiles might be prepared.

114. [412]

     In an email A/Prof Cross sent to Sgt Streatfield on 7 January 2004 [128] , it is clear that the photographs which he attaches (being some of the photographs taken by him the previous day) are of a crevice formed by a rock that he described as “look[ing] like a pyramid with a white top”. [129] (This is the rock referred to throughout the trial and in these proceedings as “Pyramid Rock”.) That email puts beyond question that at the site meeting on 6 January 2004 all attention was focussed on that rock as designating the identified point of recovery of those in attendance at that time (including, in particular, Sgt Powderly), ignorant of the fact that a different crevice had been nominated at the inquest referable to the crevice Sgt Powderly had nominated in the 1996 reconstruction video. When the circumstances in which the 1996 video was taken were revisited it ultimately emerged that the explanation for what Sgt Powderly accepted was the wrong appointment by him of the point of recovery in the video reconstruction was because he was on top of the cliffs when he had Cst Camwell filmed at the base of the cliffs, and that he was misled by the rocky topography below.

115. [413]

     That there was a controversy between Hole A and Hole B (the so-called correct and incorrect cavities) was only identified on 8 January 2004 when Ms Comina (an analyst employed by NSW Police to assist Strike Force Irondale) identified a discrepancy between two sets of photographs.

116. [414]

     I am well satisfied that this was not known to be an issue when Det Insp Jacob furnished the Sufficiency of Evidence Report first to Sgt Berry of the Legal Operational Service for his consideration before the Report and brief of evidence was forwarded to the ODPP. I reject the plaintiff’s submission that Det Insp Jacob deliberately withheld A/Prof Cross’s first report when he furnished the Sufficiency of Evidence Report, only furnishing it when the site visit was underway and it became clear that the “correct” cavity was Hole A. I do not accept that it was withheld for any ulterior purpose, whether associated with what proved later to be the controversy over Hole A/Hole B, or for any other reason. I accept Det Insp Jacob’s account that he did not include A/Prof Cross’s first report as he was waiting to receive what might have been an addendum to the report resulting from A/Prof Cross’s concern about the “head first orientation” of Ms Byrne’s body and its potential to impact upon the conclusions he had arrived at as to how she descended to her death. While it was in the course of his consideration of that question that the site visit to the Gap was convened, it was not convened because there was any reason to doubt that Hole B was the point of recovery.

117. [415]

     What is also clear from the email correspondence [130] following the site visit on 6 January 2004 is that A/Prof Cross’s continued involvement extended beyond the matters the subject of his consideration in the first report and the terms of his formal consulting letter. It is also clear that Det Insp Jacob did not discourage A/Prof Cross’s interrogation of how the injuries Ms Byrne sustained on her descent from the cliff top, as revealed on autopsy, might be explained. While the plaintiff in the proceedings was critical of the nature of his continued engagement (submitting ultimately that A/Prof Cross was an investigator and not an independent consultant), I am also satisfied that it was not apparent to Det Insp Jacob at that time that allowing for A/Prof Cross’s continued involvement was either inappropriate or ill-advised, despite the Sufficiency of Evidence Report and the accompanying brief of evidence being by this time in the hands of the Office of the Director of Public Prosecutions.

118. [416]

     In fact, in an emailDet Insp Jacob sent to Sgt Streatfield and A/Prof Cross on 9 January 2003, [131] Det Insp Jacob commended them both for the ongoing work and, in particular, for A/Prof Cross’s ongoing interrogation of the material, with Det Insp Jacob expressing the view that legal advice can often take some considerable time and that ongoing work should not be deferred if, in the result, as he described it, “the case is presented more thoroughly”.

119. [417]

     In the exhibited materials, there is nothing raising, recording or noting what the discrepancies in photographs purporting to be the point of recovery Ms Comina had identified, or Det Insp Jacob acknowledging was an apparent discrepancy when she alerted him to it. What is recorded, however, is that arrangements were made for Det Sgt Quigg to undertake measurements and further examinations of the Gap with Sgt Streatfield, and that Det Sgt Quigg was directed by Det Insp Jacob to make arrangements directly with A/Prof Cross to meet with Sgt Powderly and specialist police for a further site visit on 15 April 2004. [132]

120. [418]

     On 8 April 2004 there was a conference between Det Insp Jacob and Ms Comina where the following was noted:

121. [419]

     It would appear, and I accept, that Det Insp Jacob was concerned to make all necessary inquiries into the issue to which he had been first alerted by Ms Comina on 8 January 2004 before coming to the concluded view that the photogrammetry plans, first prepared by Det Streatfield in 1999, and based on what were referred to as the Jubelin photographs, all of which were furnished to A/Prof Cross and upon which he based his first report, were wrong. I also accept that Det Insp Jacob formally advised A/Prof Cross of that fact for the first time on 14 April 2004. [134]

122. [420]

     On 16 April 2004 A/Prof Cross recorded in his workbook the provenance of the error referable to the 1996 police video, which he apparently reviewed after he had attended at the Gap with Sgt Powderly and others at the site visit the previous day. [135] A/Prof Cross drew a two-dimensional representation of the rocks surrounding the crevice, particularly Pyramid Rock, and what he described as a double humped rock which Sgt Powderly had identified as the point of recovery when the photographs were taken at the site visit in January 2004. He noted that at the site visit the previous day Sgt Powderly confirmed that what became known as Hole A was the “correct” location as he recalled leaning against Pyramid Rock in the process of the recovery of Ms Byrne’s body to protect himself from the wave surge and the prevailing conditions.

123. [421]

     After the site visit on 15 April 2004, A/Prof Cross advised Det Insp Jacob that he had identified a potential “new launch site”, north of the corner post where “a small, flat platform with a short two to three step run-up” [136] . He went on to say that until provided with “the new measurements” he could not say more about its potential significance. Det Insp Jacob confirmed receipt of that email and indicated that as soon as the material was at hand he would forward it. Det Insp Jacob also arranged for Sgt Powderly and Cst Camwell to supply fresh statements. It was during that process that it emerged, as Det Insp Jacob reported it to A/Prof Cross, that the 1996 video was done for “press purposes” and that there was no perceived interest or need at that time to identify the landing spot with precision. Further, the position indicated by Cst Camwell as the point of recovery in the video (being Hole B) had a rock preventing access into any nearby crevice, wholly inconsistent with the way in which Ms Byrne’s body was wedged into the crevice and the injuries she sustained in the process of being removed.

124. [422]

     On 24 May 2004, a further formal requesting letter was sent to A/Prof Cross (described by Det Insp Jacob as “continuing expert consultancy in relation to the investigation of the death of Caroline Byrne” [137] ) to which he attached the additional statements from Sgt Powderly and others referred to above, together with an amended photogrammetry plan. Det Insp Jacob informed A/Prof Cross that the DPP had asked whether it would be of assistance for A/Prof Cross to go to the site, noting A/Prof Cross’s indication to him that was unlikely to be necessary.

125. [423]

     By email the following day, A/Prof Cross informed Det Insp Jacob (presumably on the basis of the amended photogrammetry plan) that:

126. [424]

     On 26 May 2004, A/Prof Cross reported by email [139] that he considered that there were three possible ways Ms Byrne descended to her death, namely that she jumped, or ran and jumped, or was thrown, and from two different launch sites, before she impacted with Hole A by either entering the cavity directly or hitting the top of Pyramid Rock and sliding into the cavity. Two of those theoretical possibilities he regarded as “not possible” [140] – being a jump or throw from the corner fence post over a distance of 14.1 metres, because it required a launch speed of 6.1 m/s, and a jump or run or throw from the flat section south of the fence post over a distance of 17.4 metres requiring a launch speed of 7.9 m/s.

127. [425]

     He considered the third option, being a jump or throw from a ledge to the north of the corner fence over a horizontal distance of 11.9 metres and requiring a launch speed of 5 metres per second as possible or, if she landed at the top of Pyramid Rock and slid into the cavity, a horizontal distance of 10 metres at a speed of 4.4 metres per second as also possible, with the qualifier that “our top throw speed so far is a bit less than 4.4 m/s”. [141] He made the further observation in this email that a throw from the edge of the cliff would be “dangerous”. He also queried how Ms Byrne was taken to “that point willingly or even unwillingly”, before venturing the further view that “[i]t’s a spot that’s well hidden so it has some advantages if you don’t want to be seen doing something wrong”. [142]

128. [426]

     Approximately an hour later A/Prof Cross followed up that email with what he advised had to date been the maximum throw speeds by one man of 3.68 metres per second and by two men at 4.15 metres per second. He also noted that a female subject’s “run and dive speed” was at a maximum of 3.8 metres per second and an elite female swimming dive from a standing start was 4.0 metres per second. He concluded by saying:

129. [427]

     Two days later, on 28 May 2004, A/Prof Cross sent an email to Det Insp Jacob referring to an analysis of the drawings and photographs where he designated what he referred to as:

130. [428]

     The analysis underpinning the content of this email to Det Insp Jacob is set out in detail in A/Prof Cross’s log book. It is clear that with the northern ledge proposed by A/Prof Cross as “an even closer launch point” a “run-up” of 4.5 metres is incorporated.

131. [429]

     By email on 2 June 2004, A/Prof Cross reported to Det Insp Jacob the results of the additional poolside tests conducted and where the “spear throw” was utilised and “throw speeds” were measured, none of which exceeded a launch speed of 4.37 metres per second. As to this he observed. “we are looking for a throw speed of about 4.2 to 4.5 m/s, or even a bit higher”. [145] He described one of the throwers (Male B) as relatively short but who “looks strong even though he claims he doesn’t do any weight training”. He went on to add:

132. [430]

     He advised that no more throwing experiments were necessary since, in his view, the tests that were conducted that day indicated that:

133. [431]

     In an email of 3 June 2004, A/Prof Cross raised with Det Insp Jacob whether he wished to be furnished with the revised report (incorporating Hole A) in draft, again observing that Male B was of only average height and build and that he would be:

134. [432]

     Det Insp Jacob did not respond to these emails.

135. [433]

     A draft second report dated 10 June 2004 (the report A/Prof Cross had referred to as the revised report) was furnished to police in which A/Prof Cross formally reported the results of the swimming pool tests under the subheading “New Throw Measurements”. He also elaborated upon the utilisation of the “spear throw” in the following way:

136. [434]

     After reporting the results of the ten “spear throws”, A/Prof Cross went on to report that in all (ten) test throws:

137. [435]

     Under a further subheading, entitled “Theoretical Throw Speeds”, A/Prof Cross set out a theoretical analysis supporting the estimate of the launch speed required to reach Hole A. [151]

138. [436]

     In the concluding section of the final version of the second report dated 26 July 2004 and headed “Revised Report on Death of Caroline Byrne”, A/Prof Cross referred to the fact that in limiting his consideration to “the landing position and orientation of the body” he was unable to distinguish a jump from a throw as the mechanism of descent. He went on to say that the probabilities that Ms Byrne jumped depended almost entirely on her athletic ability. He considered that had she been an Olympic athlete, jumping would have been a more likely explanation than a throw. However, he went on to say that assuming she was of average or below average athletic ability:

139. [437]

     He went on to volunteer the wholly gratuitous comment that “any other alternative (helicopter drop, sling shot, arrived by sea etc) is ludicrous” and then the additional wholly gratuitous view as to the probability that she was thrown by the plaintiff. He expressed himself in the following way:

140. [438]

     This is perhaps the most glaring example of A/Prof Cross’s wholesale failure to appreciate the parameters of his role as a consulting expert; the need to strictly confine himself to expressing his opinions based on his specialised knowledge, training and experience; and his obligation to confine himself to basing his conclusions on either proved assumptions or by clearly stating any unproved assumptions qualifying his conclusions.

141. [439]

     In his evidence in these proceedings, A/Prof Cross accepted that the commentary set out above was based on unproved assumptions and was nothing more than pure speculation on his part. That he included it in a report furnished to police as a forensic consultant at all raises in my mind real doubts as to whether he had the necessary intellectual discipline and objectivity to “qualify” as an expert upon whose evidence reliance could be placed in a criminal trial.

142. [440]

     Again, the relevant question that presents is what the content of the report reveals, if anything, about Det Insp Jacob’s attitude as a senior investigating officer in his assessment of A/Prof Cross as an expert or, more critically, whether it informs the question whether he should be held to be a prosecutor for the purposes of these proceedings on the basis contended for by the plaintiff or, for that matter, what it reveals about the plaintiff’s contention that A/Prof Cross should be so regarded.

143. [441]

     Commentary of this kind, and more like it, was littered liberally throughout each of A/Prof Cross’s reports. The commentary was not adduced in evidence by Mr Tedeschi at the plaintiff’s trial. The plaintiff submits, however, that being aware of A/Prof Cross’s misguided approach to his role as an expert witness, Mr Tedeschi ought not have placed any reliance on any of the views, experiments, analyses or conclusions to which A/Prof Cross progressively opined over the course of his eight reports delivered over five years and, further, that he should have had grave concerns about A/Prof Cross’s impartiality given his willingness to depart from the confines of his expertise in the application of Newtonian physics. The resolution of that question will necessarily bear upon whether the plaintiff has made out his case against Mr Tedeschi as a prosecutor.

144. [442]

     A/Prof Cross’s tendency to hyperbole and surmise in his furnished reports, a tendency mirrored in his email communication with Det Insp Jacob, does not however, of itself, assist the plaintiff in establishing that A/Prof Cross is a prosecutor as a matter of law in the way the plaintiff mounts his case.

145. [443]

     It is worth emphasising that the plaintiff’s case is that I would come to that concluded view being satisfied of the following:

     1. (1)

        A/Prof Cross conscientiously put himself forward as an expert witness as having specialised knowledge when he knew he had neither expertise nor specialised knowledge in expressing views about a range of matters including, importantly, biomechanics.

     2. (2)

        He deliberately fabricated the evidence in order to secure the charging and conviction of the plaintiff.

     3. (3)

        He deliberately omitted crucial qualifications from each of his second and subsequent reports which, if included, he knew would have resulted in the plaintiff not being charged.

     4. (4)

        He deliberately falsified his data or overstated its effect in order to mislead the prosecutor.

146. [444]

     The plaintiff relies upon the content of the second Cross report as evidencing an inevitable finding that A/Prof Cross deliberately manipulated the integrity of the results of the “throw tests” in order to ensure the plaintiff was charged and convicted of Ms Byrne’s murder. That allegation, together with the allied allegation that A/Prof Cross deliberately omitted the crucial qualification in his second report that the throw speeds exceeding 4.5 m/s were only achieved with a compliant and cooperative subject, are relied upon as evidence from which the Court would find that A/Prof Cross intended to deliberately mislead the police and prosecuting authorities as to the utility of his test results, knowing their obvious materiality to the case that was under consideration against the plaintiff for murder, and that he should be regarded as a prosecutor for the purposes of the tort for that reason.

147. [445]

     The reference in the second report to the so-called “limp throw” is logically allied with the plaintiff’s contention that A/Prof Cross deliberately (that is, intentionally) omitted to make patent in that report (and, indeed, in subsequent reports) that the experimental results which indicated that Ms Byrne could have been thrown in a “spear throw” at a speed of 4.5 metres per second was qualified by making it patent that was only possible if she did not resist being lifted, held at shoulder height and projected forward by that method. When he was cross-examined about the failure to make it clear that his conclusion that Ms Byrne was thrown to her death was subject to her offering no resistance, he said, both in his evidence at trial and in an article submitted to the Australian Journal of Forensic Sciences in 2014, that he relied upon two aspects of his reported views where he claimed that qualification should have been obvious. The first was the reference in his first report to his statement that “[t]he measured throw speeds were achieved using a passive volunteer or dummy, not a struggling woman” [154] and the second the test he conducted with a limp subject in the so-called “limp throw test”, the subject of commentary in the second report.

148. [446]

     The “limp throw test” was not the subject of any specific emphasis, whether by a subheading or otherwise in the second report. Rather, it appeared in the context of what were described as the new (June 2004) throw measurements based on Hole A. After describing the ten “spear throws” from the side of the swimming pool by one male thrower of medium height and weight who he described as “strong in appearance but definitely not a front row forward type” [155] , an additional test was undertaken where the female volunteer was asked, as A/Prof Cross described it in his second report, to “remain limp rather than support herself by hanging onto the thrower”. [156] There was nothing in the second report itself which described the limp throw other than by those descriptors, although the video recorded test results, including that throw, were supplied as part of the second report to which Mr Tedeschi had access when he was considering the second report (and the reports which followed) in his advice to Mr Cowdery furnished in February 2006 and in preparation for trial.

149. [447]

     On even the most cursory view of the footage of the “spear throw” tests it is obvious that the female subject in the so-called “limp throw test” was not lifted from the ground in a condition feigning unconsciousness, but only allowed her arms and legs to dangle after she was raised at shoulder height, after which she participated in being launched into the pool by bracing herself before being thrown. When Mr McClintock asked A/Prof Cross in these proceedings whether he had spoken with Det Insp Jacob about the need to read his results as qualified by the volunteer being compliant when thrown (so as to achieve the necessary launch speed), he said he thought he would have mentioned it after he conducted the test throw of the limp woman, but accepted, implicitly, that there was nothing in his second report to make it clear the test was not intended to mirror, in any meaningful way, the circumstances in which Ms Byrne was allegedly “spear thrown” to her death. Det Insp Jacob was not cross-examined to suggest he was told anything about the validity or integrity of the “limp throw test”.

150. [448]

     It does not necessarily follow from a failure to make patent that his conclusions should be understood as qualified in this way, that A/Prof Cross deliberately withheld what he knew to be a critical qualification to the efficacy of his test results when expressing his ultimate conclusion that Ms Byrne was “spear thrown” to her death. An alternate explanation, equally open in my view having regard to the form and content of A/Prof Cross’s reports and his undisciplined approach to volunteering unsolicited opinions in his reports (including a failure to adopt and apply scientific methodology in conducting experiments as a validation tool), is that he assumed a position of authority relative to the investigating police about a range of issues beyond his expertise as a physicist, made worse by the fact that he was permitted to develop his theories about the “spear throw” without any restriction, whether imposed by Det Insp Jacob in the first instance, or later by Mr Tedeschi in his role as Crown Prosecutor. To express it another way, A/Prof Cross was permitted to trespass into areas extraneous to his expertise, without being confined by clear instruction not to, and without Det Insp Jacob, in particular, apparently appreciating the risks of allowing him unlimited rein on matters of crucial significance to the then evolving Crown case.

151. [449]

     What I regard as Det Insp Jacob’s failure to appreciate the limits according to which a consulting forensic specialist might be permitted to report, is directly allied with what I regard as his failure to appreciate that A/Prof Cross had ventured into areas of expertise beyond those within which he was qualified to express an opinion or his failure to appreciate the need to effectively and emphatically instruct A/Prof Cross to limit his views to those he was qualified to express. Det Insp Jacob’s permissive approach, indeed his sanction, to A/Prof Cross venturing views beyond his expertise is demonstrated by inviting him to furnish a report as to the circumstances in which Hole A was ultimately nominated as the “correct” landing/recovery point (the second report of A/Prof Cross), equally as it serves to exemplify his failure to be alert to deficiencies in the experiments according to which A/Prof Cross endorsed and confirmed his conclusion that Ms Byrne was “spear thrown” to her death.

152. [450]

     Det Insp Jacob said as much when he embraced A/Prof Cross in his evidence in these proceedings as “our expert that we were using in relation to all of the issues relating to this case”. Det Insp Jacob went on to say in his evidence that he considered:

153. [451]

     I asked Det Insp Jacob, without any objection from the parties, whether he would take a different approach in a hypothetical current case. He gave the following response:

154. [452]

     Following service of the second (draft) report by email on 16 June 2004, A/Prof Cross sent the following email to Det Insp Jacob:

155. [453]

     Det Insp Jacob did not respond to that email.

156. [454]

     On 21 June 2004, A/Prof Cross attended the Gap with Det Sgt Quigg and Ms Comina where he took, what is described in the e@gle.i report as:

157. [455]

     The entry continued:

158. [456]

     On 24 June 2004, further throwing tests were performed utilising another thrower. The results of those test were reported to Det Insp Jacob by email as follows:

159. [457]

     In essence, A/Prof Cross concluded that after taking into account Trent’s assessed athleticism and his assumptions about Ms Byrne’s lack of athleticism, and factoring in the relative safety of the test environment and that Ms Byrne would likely jump at 4.0 metres per second or less off a cliff, he concluded:

160. [458]

     Det Insp Jacob acknowledged receipt of that email without comment and indicated that he would speak with A/Prof Cross later about its contents. There is no evidence as to whether that occurred or the content of any discussion

161. [459]

     By email of 27 June 2004, [164] A/Prof Cross proposed filming 10 or 20 students from the June Dally-Watkins school running 4.5 metres and jumping as far as they could on a floor from which he intended, on repeat runs, to plot the fastest run and jump for each student. He suggested that might provide a basis for extrapolating Ms Byrne’s run or jump speeds.

162. [460]

     Det Insp Jacob responded by advising that “the bosses” were not keen to conduct further running and jumping tests since the current test results indicated that jumping was possible and “we’ll never know for sure if CB may have jumped”. [165] A/Prof Cross responded by suggesting that Det Insp Jacob and his superiors had misunderstood the test results. He said he was concerned to see if a jump of 4.5 to 5.1 metres per second could be achieved. In the result, further tests were scheduled with the cooperation of police cadets as volunteers.

163. [461]

     On 1 July 2004, A/Prof Cross reported to Det Insp Jacob by email the results of the further jump tests which he furnished in graphic form and which he analysed as indicating that Ms Byrne had, at best, a 10 per cent chance of “jumping the distance [to Hole A]” [166] assuming she was in the top 10 per cent of athletic performance. As he made clear in subsequent emails, those results required close analysis in order to draw any reportable conclusions, although he did report as a firm conclusion in an email of 16 July 2004 [167] (ten days before he furnished the final second report of 26 July 2004) that, of the 39 jumps undertaken by 13 women three times, six achieved the measured distance of 11.8 metres (being the distance from the extreme edge of the north ledge to Hole A). Of the 39 jumps executed, all were launched 20 centimetres short of the appointed 4.5 metre run-up, increasing the jump distance, from 11.8 metres to 12 metres. He concluded that the probability of Ms Byrne “jumping the distance” was 1 in 39; a figure which would be reduced after taking into account the following:

     1. (1)

        It was a dark night;

     2. (2)

        Ms Byrne did not have three attempts at her jump;

     3. (3)

        The two jumpers with the same height and weight as Ms Byrne were not among those five who jumped more than 11.8 metres;

     4. (4)

        Ms Byrne landed on her head. To achieve that rotation her jump speed would be reduced slightly, in which case he considered it unlikely that any of the 39 jumps would achieve the horizontal distance. He remarked (entirely gratuitously), “Most people committing suicide do not jump at top speed”.

164. [462]

     In concluding that a female of average athletic ability could not jump the distance to Hole A, he expressed the opinion that it was highly unlikely that Ms Byrne did, however, he could not appoint any probability to that assessment, accepting that nothing was known of her actual athletic ability apart from the fact that she was not an elite athlete. He concluded, “If she was of average athletic ability there is essentially zero probability of jumping the distance”. [168]

165. [463]

     As is clear from A/Prof Cross’s email to Det Insp Jacob of 23 July 2004, [169] three days before the settled report of 26 July 2004 (the second report of A/Prof Cross) was furnished, he concluded that the new test data was consistent with only two possible conclusions, with the most likely being that Ms Byrne was thrown at high speed in a “spear throw” from the northern ledge. He said that a much less likely possibility was that she could have taken a short run and then jumped from the northern ledge, but that was only possible were she well above average in athletic ability. It is clear from that email that A/Prof Cross had by that time been provided by Det Sgt Quigg with statements from two sports teachers who indicated that Ms Byrne had no athletic ability at high school. He was also apparently informed that there was no evidence to suggest that she had developed superior athletic abilities after she left high school, despite evidence that she had remained fit.

166. [464]

     On 21 July 2004, A/Prof Cross returned to the Gap again with police. That evening, he reported to Det Insp Jacob by email, [170] emphasising that the available run-up (along the northern ledge) was not 4.5 metres or 5 metres (a distance he had applied for testing purposes) but rather only 4 metres, stating categorically that there was a growth of bushes one-metre deep against the fence in 1995, and that the bushes were cleared only recently to fix the fence. Utilising that recalibrated run-up distance, he concluded that no one other than an Olympic athlete with a 4-metre run-up could jump the distance to Hole A. He went on to say, “4.5m allows a high school champion to jump the distance [while] 5.0m allows the top 1/4 of the female population to jump the distance”. [171] He repeated that he had been informed by Det Sgt Quigg that Ms Byrne “was in the bottom half in terms of athletic ability”. [172] Ten minutes after sending that email he attached a photograph with Det Sgt Quigg standing close to what A/Prof Cross referred to as the original line of bushes against the safety fence, showing, in turn, what he described as easy access over the fence, onto the rock, and then onto the platform. He said of that photograph, “[it] tells it all”. [173] A photograph of another view of the northern ledge and the available run-up relative to what was described in a caption to the photograph as the “landing hole” was annexed as Figure 4 to his report, with a magnified image included as Figure 17. Figure 17 (which became Ex DJ at the plaintiff’s trial) is described as an:

167. [465]

     The presence of the bushes and their impact on the available “run-up” of a thrower or a jumper across the ledge to the edge became a point of contention on appeal and in these proceedings to which reference will be made later.

168. [466]

     On furnishing his second report to Det Insp Jacob, A/Prof Cross drew attention to Figure 17 which he regarded as of considerable significance because of the shorter available run-up for a jumper or thrower. He said:

169. [467]

     On 2 September 2004, Ms Turner sent an email to Det Insp Jacob, Det Sgt Quigg and Ms Comina, into which Mr Tedeschi was copied as a recipient. The email indicated that she had been asked to issue a number of requisitions following Mr Tedeschi’s consideration of “the matter”, which I take to include his consideration of A/Prof Cross’s recently furnished second report and his first report. Thirteen requisitions were issued: [176]

     1. (1)

        In A/Prof Cross’s first report there was a photograph of a mannequin lodged in the rocks at the Gap. The first requisition queried whether “close up photos” [177] were available.

     2. (2)

        Whether Sgt Powderly was responsible for positioning the mannequin in the rocks, or whether he indicated where it was to be positioned and how it was to be positioned.

     3. (3)

        A further statement from Sgt Powderly was sought as to his cliff rescue experience and the positioning of bodies in previous rescues as compared with how Ms Byrne’s body was found.

     4. (4)

        Whether “any other cliff rescue persons” have the same or more experience than Sgt Powderly, and whether those persons could provide a statement in relation “to the usual cliff fall landing”. [178] Ms Turner also asked whether “anyone experienced in this area [has] seen a person land in a “dive position? Was it unusual?”

     5. (5)

        Ms Turner noted that Sgt Powderly said Snr Cst Camwell took rough measurements at the time of retrieving Ms Byrne’s body, but that no mention was made of those measurements in Snr Cst Camwell’s statement. She asked whether Snr Cst Camwell recalled making such measurements, and whether it was possible to obtain her police notebook.

     6. (6)

        Whether A/Prof Cross could be asked to conduct further tests where a person of the plaintiff’s height, build and strength throws an “appropriately weighted dummy” [179] with “legs and arms limp and falling down (do they impede?)” from the cliff at the Gap using “both an over-arm throw and under-arm throw method” [180] to determine whether the arms and legs impede the throw or the thrower.

     7. (7)

        Additional information in respect of Ms Byrne’s athletic ability was sought including “something from the gym”. [181] It was suggested that family and friends may be able to assist in providing the information.

     8. (8)

        Whether additional photographs of “the area … particularly the bushes on the north ledge” [182] could be provided.

     9. (9)

        As to the scream heard by the fisherman, information was sought as to the length of the scream, the number of screams, and “whether the volume of the arguing increased prior to the scream”. [183]

     10. (10)

         ...

     11. (11)

         ...

     12. (12)

         ...

     13. (13)

         The matter should be referred to another physics expert “for a second opinion”. [184]

170. [468]

     On 3 September 2004, Ms Turner sent an email to Det Insp Jacob and Ms Comina (copied to Det Sgt Quigg) with six additional requisitions, as follows:

171. [469]

     In the meantime, apparently at the request of Det Insp Jacob, A/Prof Cross provided the names of two experts in biomechanics, both associated with Australian-based institutes of sport. He also advised that he had written an article which was due to be published in the Journal of Forensic Sciences and was expecting some feedback from the editors.

172. [470]

     On 13 September 2004, [186] Mr Tedeschi and his junior, Mr McKay, attended the Gap with Sgt Powderly, Det Sgt Quigg, and other police officers. Ms Yule, a forensic psychologist, was also in attendance.

173. [471]

     In an email [187] to Det Insp Jacob on 21 October 2004, A/Prof Cross shared his “thoughts” having apparently received notification of the requisitions from the ODPP following Mr Tedeschi’s consideration of his second report. In the email, A/Prof Cross expressed concern that Mr Tedeschi “did not actually read and digest [his] report”; a conclusion he derived following a conference with Mr Tedeschi. He considered, inter alia, Mr Tedeschi’s suggestion of throwing dummies off the Gap as “stupid” given that Mr Tedeschi apparently also asked for someone to run-up the edge of the northern ledge to get the dummy out as far as possible without falling himself. A/Prof Cross went on to say in an email sent that afternoon:

174. [472]

     Whilst this attitude is not completely destructive of the plaintiff’s case that A/Prof Cross deliberately misled Mr Tedeschi such as to cause his discretion to miscarry, it is at least strongly suggestive that his intentions, however crudely and rudely expressed, were to ensure Mr Tedeschi understood his analysis and how he reasoned to the conclusions he had reached in the second report. While it is a reflection of his hubris that he believed that a lay person would not appreciate the integrity of his approach or understand the conclusions he reached in applying the rigours of science and the certainties it generated, it does not suggest to me an intention to mislead Mr Tedeschi by having him accept the conclusions reached in his second report knowing they were unsupportable.

175. [473]

     By 1 November 2004, A/Prof Cross had confirmed Prof Bruce Elliot’s availability as an expert who may be approached. It appears he was consulted by Det Insp Jacob about an appropriate “expert” in order to address Mr Tedeschi’s request that there be another expert retained to consider the conclusions A/Prof Cross had reached and whether they could be supported.

176. [474]

     A/Prof Cross introduced Prof Elliott as:

177. [475]

     Despite the further unabashed hubris in appointing himself as a biomechanist at all, this attitude also runs counter to that plaintiff’s case that A/Prof Cross intended to mislead Mr Tedeschi by the provision of the information in his second (and subsequent) report since it must be assumed by his introduction of Prof Elliott that he knew, and indeed expected, that his analysis and what he claimed to be the scientific integrity of his approach, would be subject to close scrutiny.

178. [476]

     In a requesting letter of 7 March 2005, [190] Prof Elliott was formally retained by Det Insp Jacob and provided with the briefing materials which had been previously furnished to A/Prof Cross, inclusive of A/Prof Cross’s first three reports (the third report having been furnished on 17 February 2005). The inclusion of A/Prof Cross’s first report in the brief of material provided to Prof Elliott also runs counter to the plaintiff’s case that Det Insp Jacob was intent on concealing the first Cross report and the conclusions then expressed by A/Prof Cross as part of his determination to mislead Mr Tedeschi as to the possibility that Ms Byrne committed suicide.

179. [477]

     Prof Elliott was asked to critically examine, test and provide his expert commentary on A/Prof Cross’s conclusions with particular focus on:

     1. (1)

        Other likely points from which Ms Byrne left the cliff top;

     2. (2)

        The likelihood or otherwise that she left the cliff top in any type of load-trajectory way;

     3. (3)

        The likelihood of Ms Byrne being able to reach the point of recovery without any assistance;

     4. (4)

        The likelihood of Ms Byrne reaching that point by being thrown by one or two strong males.

180. [478]

     On 8 March 2005, Prof Elliott provided a five page statement entitled “Critical Evaluation and Expert Opinion on Report by Associate Professor Rod Cross on the death of Caroline Byrne”. [191] For the purposes of that report, Prof Elliott was provided with the first three reports prepared by A/Prof Cross, together with a number of police and civilian statements and other data including post-mortem reports and photographic and other imagery of the Gap and surrounds. In the report, Prof Elliott saw it as his role to ascertain the accuracy of the data presented and conclusions drawn in the three A/Prof Cross reports. He described the reports as “extremely thorough and well documented” [192] presenting “an accurate mechanical summation of projectile theory related to” [193] the case under consideration.

181. [479]

     On the basis that the documentation and interactive crime scene data suggested that there was only one logical launch site (being the northern ledge), he considered A/Prof Cross was correct in concluding that an 18-metre leap could only be made by an elite athlete with an extended run-up which ruled out of contention the only other logical launch site, being the southern ledge. In considering the type of trajectory he said:

182. [480]

     In considering the running speeds recorded in the A/Prof Cross reports, Prof Elliott undertook his own testing of four female students of average fitness running over a 4-metre grass course where their peak speed was measured using a two-dimensional computer program. He reported as follows:

183. [481]

     In assessing dive speeds he said:

184. [482]

     From these results he expressed his agreement with the conclusion reached by A/Prof Cross that Ms Byrne neither ran, jumped, nor dived from the northern ledge to have arrived at Hole A.

185. [483]

     Prof Elliott also undertook some throw tests, although his “throwers” were not as “large” [197] as those used by A/Prof Cross. Mean speeds of 3.7 m/s matched those generated by the two throwers used by A/Prof Cross in his second report. Prof Elliott went on to say:

186. [484]

     He emphasised however, that the data collected, both in respect of the throw tests and running tests, was only to check the values reported by A/Prof Cross. In conclusion, his opinion was expressed in the following terms:

187. [485]

     On 1 November 2005, Prof Elliott provided a further report in which he emphasised that his role was not that of an expert witness but, rather “to check the accuracy and to some extent the validity of the data that Associate Professor Cross used to draw his conclusions”. [200] In fulfilling that role, he concluded, after reviewing the issue of throw speed and jump and dive speeds, that A/Prof Cross:

188. [486]

     Focusing for present purposes on the analysis of “throw speeds”, Prof Elliott said as follows:

189. [487]

     By letter of 16 May 2005, [203] Det Insp Jacob invited A/Prof Cross to liaise with forensic services and ultimately to report upon the video reconstruction of the process of recovery in 1996 in which Cst Camwell identified Hole B on the rock floor as the point of recovery under direction from Sgt Powderly on the cliff top. He was informed that request was made as a result of the continuing consideration the DPP was giving to the sufficiency of evidence to support the case that Ms Byrne was murdered.

190. [488]

     He was asked to report specifically upon the following:

191. [489]

     On 16 November 2004, A/Prof Cross informed Det Insp Jacob via email [205] that the editors of the Journal of Forensic Sciences had forwarded his paper to two independent forensic scientists whose positive peer review had been forwarded to him. He said they had both suggested ways of improving the presentation of his work but, according to A/Prof Cross, they found no fault with it. There is no submission from the plaintiff that the paper A/Prof Cross submitted for publication was inaccurate or that it contained manipulated results or tendentious reasoning. While it might fairly be said that the submission of the article for publication is another expression of A/Prof Cross’s appetite for recognition, it does not suggest the dishonesty and subterfuge which are the hallmarks of the conduct which the plaintiff submits constitutes him as a prosecutor.

192. [490]

     On 25 November 2004, Mr Tedeschi sent an email to Ms Turner in which he indicated:

193. [491]

     Mr Tedeschi then set out his “comments”, which are extracted below. Three hours later these comments were forwarded, verbatim, to Det Insp Jacob:

194. [492]

     On 30 November 2004, Det Insp Jacob forwarded to A/Prof Cross a set of requisitions mirroring those he received from Ms Turner under cover of a formal requesting letter identifying what Det Insp Jacob described as “some specific issues” arising out of the conference with Mr Tedeschi and Mr McKay. [208] Additional statements were also provided, inclusive of statements from various people obtained after the Sufficiency of Evidence Report was furnished, which related to the plaintiff’s physical strength and general fitness. They included a statement from Stephen Duval of 25 November 2004, [209] upon whose evidence the Crown ultimately relied at trial to establish the plaintiff’s capacity to bench press 100 kilograms.

195. [493]

     From Det Insp Jacob’s letter, it is clear that at the conference from which these questions emerged, the issue of the impact of throwing a limp body as distinct from throwing a braced body (the latter being the way in which the volunteers had conducted themselves) was obviously an issue of continuing concern, as to which Det Insp Jacob advised A/Prof Cross as follows:

196. [494]

     On 1 December 2004, two further requisitions were formulated by Ms Turner directed to this issue (requisitions with which Mr Tedeschi agreed). A/Prof Cross was asked to conduct the following underarm “limp throw tests”:

197. [495]

     It appears that as a result of these requisitions, further throw tests were conducted at Goulburn Police Academy. In response to the specific request concerning the limp person, A/Prof Cross referred Det Insp Jacob to the bottom of page 10 of his second report where he reported that a “limp throw test” had already been conducted. [212] As I have already noted, that section of A/Prof Cross’s second report makes it clear that it was the third of three throws by Male A (the stronger of the two males) in which the female volunteer was asked to remain “limp” rather than support herself by hanging onto the thrower as she was “spear thrown” from shoulder height. While this generated a launch speed of 4.71 metres per second (the same as the first of the three throws), the sufficiency of that data to support a conclusion that a limp (that is, unconscious) subject could be thrown at the same launch speech as a conscious and compliant subject was a point of focus in Mr McClintock’s cross-examination of both A/Prof Cross and Mr Tedeschi, albeit for different purposes.

198. [496]

     It was put to A/Prof Cross:

199. [497]

     The following questions were put to Mr Tedeschi by Mr McClintock:

200. [498]

     As to the fourth requisition, which concerned whether two people using an underarm “spear throw” technique would result in an increased horizontal launch speed, A/Prof Cross said he could undertake that test at Goulburn, but saw no need for it since testing had already confirmed that the maximum throw speed utilising that technique was 2.7 metres per second. [215]

201. [499]

     The answers to the questions as posed and arising from conference with Mr Tedeschi and Mr McKay were to be provided in the form of a further report which A/Prof Cross was told by Det Insp Jacob was to be provided to the ODPP for their consideration. Some of those answers ultimately found expression in A/Prof Cross’s third report of 17 February 2005. The limp throw issue was not further addressed.

202. [500]

     In the interim, A/Prof Cross raised with Det Insp Jacob information he had apparently received from Det Sgt Quigg to the effect that the plaintiff could bench press 100 kilograms. A/Prof Cross advised Det Insp Jacob that information could be used to “calibrate our best throwers … as an indication of strength”. [216] He added:

203. [501]

     In his third report, dated 17 February 2005, [218] A/Prof Cross made express reference to the age, height and weight of Males A and B, as correlated to their capacity to bench press a maximum weight in a single press and in six repetitions as an indication of their upper body strength. Their bench press capacity (which A/Prof Cross made clear was determined independently of his tests) was, as A/Prof Cross said in his report:

204. [502]

     He noted that in the further tests conducted on 13 December 2004, Male A recorded a horizontal throw speed of 4.72 metres per second, similar to his previous throw speeds six months earlier (respectively at 4.71, 4.83 and 4.71 metres per second) and on each throw a short run-up of between 2 and 3 metres was made. Male A’s maximum bench press was 120kg on one repetition, and 100kg on six repetitions. By comparison, Male B who was older by ten years, shorter by 10 centimetres, and 20kg lighter, and who had a bench press capacity on one repetition of 95kg and 85kg on six repetitions, achieved a throw speed, in the single throw performed on that occasion, of 3.78 metres per second.

205. [503]

     Given the differential in the heights of Male A and Male B, and what A/Prof Cross recognised as the difficulty in coordinating the necessary run-up and throw action for a two person throw, horizontal throw speeds of 4.02 metres per second and 4.15 metres per second were recorded. Similar speeds were generated with swinging the volunteer several times before being thrown without a run-up. A/Prof Cross also noted that on one of these manoeuvres, one of the male throwers overbalanced and fell in the water.

206. [504]

     A/Prof Cross drew this conclusion from the additional poolside throw tests:

207. [505]

     In considering that “spear throwing” a person after a run-up to the ledge of a cliff is not dangerous from the poolside tests, it is obvious that the unstated assumption is that the test thrower has executed the “spear throw” with the assurance that there is no risk that he will catapult over the edge of the pool with the person being thrown because he knows they will not grip or struggle or otherwise conduct themselves in a way that might destabilise him. The thrower at a cliff edge (the plaintiff in this instance) cannot sensibly be imputed to have that mindset. The conclusion also proceeds on the further unstated and untested assumption that an unconscious person whose body is limp and offering no resistance at all to being thrown presented no additional risk to the thrower.

208. [506]

     The impact of these two unstated and untested qualifications to the conclusions expressed by A/Prof Cross on the third report that “the only successful throw technique is the spear-throw” [221] by a “stronger than average male” [222] were the subject of intense focus in these proceedings.

209. [507]

     As to the question that had been raised by Mr Tedeschi with A/Prof Cross concerning the effect on jump speed by reducing the run-up distance to four metres, A/Prof Cross reported that the reduction in jump speed was larger than he had estimated in the second report, such that none of the jumpers with a 4-metre run-up were capable of achieving the horizontal distance required to reach Hole A. He assessed six of the seven jumpers as better than average in athletic ability, from which he concluded that any hypothesis that had Ms Byrne jumping or diving to her death could be excluded.

210. [508]

     By email of 6 May 2005, Ms Turner provided Det Insp Jacob with written confirmation of further requisitions which, on the face of the email, appear to have been discussed the previous day. The requisitions are as follows:

211. [509]

     In an email to Det Insp Jacob of 18 May 2005, [224] A/Prof Cross recited his understanding of how and when Hole B came to be identified as the “incorrect” landing spot and how he proceeded on that misassumption in the preparation of his first report and thereafter until he learnt otherwise in April 2004. He raised with Det Insp Jacob what he described as one more piece of evidence relevant to that issue in the following terms:

212. [510]

     In a follow-up email on 8 June 2005, [226] after a further site visit to the Gap that day, A/Prof Cross referred to Sgt Powderly’s evidence at the inquest where he said that he had checked Ms Byrne’s head injuries by looking through a gap in the rocks. He said:

213. [511]

     A/Prof Cross went on to say that the measurement taken that day from the edge of the cliff near the corner post to Hole B using a “plum bob” was 9.3 metres; essentially the same as the 9 metre measurement he used for the purposes of his first report based on Sgt Powderly’s evidence at the inquest.

214. [512]

     Two hours later A/Prof Cross reported by further email that he had taken a video of the mannequin being inserted into Hole B. He said, “it went in easily and about up to the waist”. [228] He referred to someone in attendance being “an Irish/English accented guy” [229] and suggested a statement be taken from him as he had reported: [230]

215. [513]

     The following day A/Prof Cross reported that on examining the video taken at the site visit he could see that the mannequin being lowered from the cliff top dropped into Hole B without having to be pushed. In his view, it was also removed too easily. He volunteered the view that, “[i]f the measuring guys did their job properly we will find that the wrong cavity is too wide”. [231]

216. [514]

     The same day, upon further review of photographs taken at the Gap, A/Prof Cross reported to Det Insp Jacob that the mannequin would be clearly visible through a tunnel into the correct cavity but “it is almost impossible to see anything via the tunnel in the ‘wrong’ cavity” [232] .

217. [515]

     By email of 14 June 2005, [233] A/Prof Cross asked Det Insp Jacob if measurements could be obtained of Ms Byrne’s shoulder width. He noted that the mannequin was only 330mm wide with its arms removed and 365mm with its arms outstretched. Two women whose shoulder widths he had measured that afternoon, and who he considered “skinny” and “slim”, had shoulder width measurements of 380mm and 420mm. He noted that the autopsy did not list Ms Byrne’s shoulder width and queried whether the modelling agency may have those statistics to assist him in making an assessment of Ms Byrne’s hip width and shoulder width, and if necessary, to assist him in making some assessment of Ms Byrne’s actual measurement by reference to other females of similar height and weight.

218. [516]

     In an email of 16 June 2005, [234] A/Prof Cross again emphasised the importance of asking Sgt Powderly what he was able to see through the tunnel into the rock cavity. He emphasised that Det Insp Jacob was obviously the appropriate person to undertake that questioning to ensure Sgt Powderly was not led to the answer. He said:

219. [517]

     On 22 June 2005, A/Prof Cross sent an email [236] to Det Insp Jacob in which he said that were he to write the first report again, even were it based on Hole B being the point of recovery, he would probably conclude that it was more likely that Ms Byrne was thrown in contrast to his former view that the probabilities favoured a jump. He said that at the time of preparing his first report he did not have any high speed throw results since the “spear throw technique” had not been used as at that time. In addition, he said he did not at that time take into account that Ms Byrne did not simply run off the cliff but that she must have rotated to have landed on her head.

220. [518]

     In a formal requesting letter of 30 June 2005, [237] largely, it would seem, in response to the emails summarised above, Det Insp Jacob asked A/Prof Cross to reconsider the conclusions he had earlier expressed taking into account the additional poolside testing, and taking into account the effect of running on an uneven surface. He also attached a consultancy request produced by the Gordon Charles Management Group recording Ms Byrne’s personal details. I note that there was no shoulder width/circumference measured, although bust, weight and hip measurements were recorded. These measurements were taken in March 1992. In what appears to be a self-report, Caroline Byrne described her sporting prowess in basketball, aerobics, swimming, roller blading and roller skating as excellent; that her diving skills and her skill as a windsurfer and body surfer as good; and her horse riding and jet skiing as fair.

221. [519]

     On 3 August 2005, Det Insp Jacob forwarded to A/Prof Cross a copy of a colour photograph of Ms Byrne taken prior to post-mortem and two anatomical diagrams prepared during the course of the post-mortem, variously appointing a spread of abrasions across the chest and back with one abrasion 32cm in length on her left thigh. [238]

222. [520]

     In the course of finalising what became A/Prof Cross’s fourth report, he informed Det Insp Jacob by email of 15 August 2005 that his “deliberately brief” [239] draft conclusion (pending receipt of data from forensic imaging) was that the incorrect cavity (Hole B) would not have allowed Sgt Powderly to have observed Ms Byrne’s head injuries at close range. He further reported his final conclusion (albeit in draft) as follows:

223. [521]

     On 16 August 2005, A/Prof Cross emailed Det Insp Jacob noting what he described as “something interesting” in Sgt Powderly’s evidence at the committal where he said:

224. [522]

     A/Prof Cross observed:

225. [523]

     The following day he asked Det Insp Jacob by email [243] to ask Sgt Powderly if the “crevice” in which he found Ms Byrne lying face down had “just two sides or was she jammed in a cavity on three or all four sides?”. [244] He then commented as follows:

226. [524]

     Three hours later, in yet another email, A/Prof Cross noted that the photograph of the mannequin taken at the recent site visit had the mannequin in a cavity formed by “a bunch of rocks at the base of the two boulders”. [246] A/Prof Cross said:

227. [525]

     He went on to say:

228. [526]

     The following day, A/Prof Cross forwarded a list of questions he thought Sgt Powderly ought be asked. [249] The interview that Det Insp Jacob conducted with Sgt Powderly on 14 October 2005 did not follow the order or terms of the suggested questions. Quite clearly, Det Insp Jacob applied his own policing skills and judgment to the interview process which resulted in a statement being taken from Sgt Powderly addressing a wide variety of issues bearing upon the finding and retrieval of Ms Byrne’s body. The detail Sgt Powderly provided in this statement was considerable. He focused his attention on the precise point where he first saw Ms Byrne’s body, together with its orientation at that time, viewed both externally and by close examination through the cavity in the rocks.

229. [527]

     On 13 September 2005, Det Insp Jacob forwarded to A/Prof Cross the photographs and photogrammetry plans, including relevant measurements taken on 8 June 2005 at the Gap for inclusion in his final (third) report. [250] A statement of Sgt Powderly dated 14 October 2005 was attached.

230. [528]

     Throughout the preparation of A/Prof Cross’s fourth report, multiple e@gle.i entries were created by Det Sgt Quigg confirming the ongoing process in which A/Prof Cross was engaged in its preparation, including meetings he attended with A/Prof Cross at the Gap where measurements were reviewed. On 18 October 2005, after receiving Sgt Powderly’s statement, a further site meeting was convened for what was described in the e@gle.i report of 19 October 2005 to take “measurements of the width and breadth and depth” [251] of the “incorrect rock cavity”. [252]

231. [529]

     On 17 November 2005, two weeks after the service of his fourth report, A/Prof Cross emailed Det Insp Jacob proposing that in the event that a prosecution was commenced, his running, jumping and diving speed experiments be presented filmically and that he had time to produce that material if requested. [253] In particular, he suggested that a film might address what Mr Tedeschi had raised with him in conference as the unlikelihood of a person running up to the edge of the cliff to throw someone over the edge because of the danger involved. A/Prof Cross considered that showing a “spear throw” on film might convince Mr Tedeschi otherwise, since a film would enable him to see “for himself that (a) there is no danger at all and (b) a person can be thrown faster than they can jump”. [254] (He attributed to Mr Tedeschi no belief in the second proposition.) While this shows A/Prof Cross’s eagerness to be understood, even listened to, it is not in my view suggestive of a process of instructing Mr Tedeschi to ensure his knowingly false opinions are uncritically accepted.

232. [530]

     In January 2006, A/Prof Cross was invited to review the full assemblage of crime scene photographs and photogrammetry plans in relation to the investigation as part of the ongoing consideration being given to the sufficiency of evidence undertaken by the DPP. [255] In that exercise, two comprehensive statements from officers within the forensic imaging section and the incident reconstruction section of the Forensic Services Group were prepared and, it might fairly be assumed, furnished, together with A/Prof Cross’s fourth report to the ODPP for their ongoing consideration. It would appear that Mr Tedeschi did not convene a further conference with A/Prof Cross before rendering his advice to Mr Cowdery.

233. [531]

     In the introduction to what has been described in the evidence as the 8 February 2006 summary report [256] (the fifth Cross Report), A/Prof Cross set out in summary what he said the report was designed to encapsulate, namely, a summary of the most significant findings and the reasons supporting those findings, and to provide a clear overview of the opinions he arrived at in the process of preparing the four previous reports.

234. [532]

     He said as follows:

235. [533]

     He first referred to the conclusion he arrived at in his first report of 19 November 2003 that Ms Byrne did not accidently slip or trip off the cliff edge, neither was she pushed or did she jump at low speed, principally because of the horizontal distance from the cliff face to the landing point as he believed it to be at that time (namely Hole B). It would seem that these findings have never been doubted; neither have the allied conclusions expressed in the first report that for her to have landed nine metres from the cliff face she was either thrown at high speed or she jumped or dived at high speed.

236. [534]

     As A/Prof Cross went on to say:

237. [535]

     He said that in addressing that issue he needed to conduct experiments as to the speed at which a person can jump or dive, and the speed at which a person can be thrown, there being no scientific data to which he could refer where the launch speeds of persons of average athletic ability to run or jump or dive were collected, although there was similar data for elite athletes.

238. [536]

     After then claiming to have resolved the question of the correct landing point as one of the tasks briefed to him by Det Insp Jacob in June 2005 (on any view a serious overstatement of his contribution to settling the issue), he concluded that Ms Byrne was thrown from the cliff top; a conclusion which he considered did not depend on which of the two landing points (Hole A or Hole B) was in fact correct. He considered that Hole A (which he referred to as the “correct” landing point) could only have been reached over a horizontal distance of 11.8 metres and from one launching point, being the tip of the northern ledge. Hole B (the “incorrect” landing point) could have been reached from two possible launch sites on the southern ledge, 9.3 metres and 13 metres from the cliff, respectively (figure 1 in the report diagramises that narrative). He went on to say that for each of the two possible landing points, it was possible to determine possible corresponding launch points, and to measure the distance available for a run-up to each of them.

239. [537]

     He said that in concluding that Ms Byrne was thrown to her death rather than that she jumped to her death he relied largely on the fact that she was “not a good athlete”. He went on to say that had Ms Byrne been “an elite athlete”, he would have been unable to distinguish between a throw and a jump on the basis of the “geometry of the landing point and the cliff environs”. [259] He said that evidence regarding Ms Byrne’s athletic ability, together with his experiments where graduated running, jumping, diving and throwing speeds were measured, allowed him to conclude two things:

     1. (1)

        Ms Byrne did not have the athletic ability to jump or dive at sufficient speed to reach either of the two possible landing points; and

     2. (2)

        A strong man, acting alone, would have been able to throw her at sufficient speed to reach both landing points, provided he used an appropriate technique (the “spear throw” technique). [260]

240. [538]

     A/Prof Cross posed and answered a number of what he described as questions that followed from his conclusions, some of which he regarded as having been answered in the course of the investigation and some which were not. [261]

241. [539]

     Through his investigations he concluded that:

     1. (1)

        Depending on the throwing technique used, “it was not particularly dangerous” [262] to run to the edge of the cliff in order to throw a person over the edge;

     2. (2)

        As to Ms Byrne’s state of consciousness when she was thrown, he said the evidence was silent on that question.

242. [540]

     He reported, however, that a female can be thrown at the same speed regardless of whether she braces herself or remains limp. [263] He went on to make it clear that he conducted no experiments where the female subject actively resisted being thrown. He did, however, venture the view that “it would clearly be more difficult and more dangerous to throw a woman who was struggling than to throw a woman who was not, especially if she attempted to hang on to the thrower”, [264] from which he ventured the suspicion that Ms Byrne was not fully conscious when she was thrown or when she was lifted over the safety fence onto the north ledge. He did not consider that scenario as exclusive of other possibilities.

243. [541]

     He then posed and answered other questions as to which it is clear he had no expertise, including:

     1. (1)

        Why throw at maximum speed when a low speed would have resulted in certain death?

     2. (2)

        How did the thrower know what technique to use to throw for maximum distance?

     3. (3)

        Why was Ms Byrne thrown rather than pushed?

     4. (4)

        Why was Ms Byrne thrown to her death?

244. [542]

     Why these questions were posed by him and then answered was not addressed in the evidence in these proceedings. I have proceeded on the basis that they reflected A/Prof Cross’s approach to his engagement by police as it developed from 2003 to this time, namely to muse on the course of the police investigation and the presumed motivations, expectations and attitudes of those involved, including Ms Byrne and the person or people who he believed killed her, without any invitation to do so, but without having been counselled not to do so.

245. [543]

     What was the subject of intense questioning in the proceedings was Mr Tedeschi’s reaction to reading this report, since it is patent that neither the questions nor the answers called for the application of any expertise of any relevant kind. Mr Tedeschi said he simply ignored this part of the fifth report, accepting it was based upon pure conjecture because he considered A/Prof Cross’s “core findings” in his previous reports and summarised in this report as valid and supportable. His evidence in this regard will be developed later.

246. [544]

     The summary fifth report went on under successive subheadings to deal with the “landing spot”, “launch points” referable to the landing spot, “jump and dive speed measurements” (with tabulated and graphically represented results), “physics of jumping”, “launch speed estimates”, “launch speed calculations”, and “jump vs dive”. The information upon which he expressed his opinions referable to each subject heading was set out in extensive detail and is not repeated here.

247. [545]

     On 15 February 2006, Mr Tedeschi enquired of A/Prof Cross in what appears to be a face-to-face conference why, in his second report of 26 July 2004, the launch speeds specified were greater than those specified in his fourth report. In an email sent to Mr Tedeschi the following day, A/Prof Cross provided the following explanation:

248. [546]

     He explained the higher launch speeds quoted in his second report were for “simplicity”, but went on to emphasise that there was no material inconsistency between the higher and lower launch speeds. He concluded by volunteering the view that what may have appeared to Mr Tedeschi as inconsistencies were not “since the answer depends upon the object in undertaking the calculations”. He said:

249. [547]

     On 21 February 2006, [267] A/Prof Cross forwarded directly to Mr Tedeschi a draft version of a further summary report that Mr Tedeschi had apparently requested of him. This became the sixth Cross report of 8 March 2006, a report additional to the fifth summary report of 8 February 2006, although both were described as “summary” reports.

250. [548]

     A/Prof Cross went on to say in the email which attached the draft report:

251. [549]

     By return email three hours later (copied to Ms Turner and Mr McKay), Mr Tedeschi responded:

252. [550]

     Mr Tedeschi went on to say in that email that the only suggestions (emphasising they were only suggestions as “you are the expert!” [270] ) concerned three specific paragraphs as follows:

     1. (1)

        Mr Tedeschi sought clarification as to what the throw techniques were and that the techniques did not include a “spear throw”. (I note in the final version of the sixth report that addition was made.)

     2. (2)

        Mr Tedeschi expressed concern that the impression was that, other than a “spear throw”, the throwing methods involved two throwers acting simultaneously and invited clarification.

     3. (3)

        Mr Tedeschi queried why a man of “superior strength” such as the plaintiff would only achieve a maximum launch speed of 4.5 metres per second. He went on to say:

253. [551]

     The final version of the sixth report was amended to suggest that by interpolation from the bench press and horizontal spear throw data specific to Male B:

254. [552]

     Both A/Prof Cross and Mr Tedeschi were cross-examined in the proceedings as to why Mr Tedeschi framed the requisition in those terms and how A/Prof Cross interpreted it. It is the plaintiff’s case that for Mr Tedeschi to invite an expert witness to “speculate” is a gross breach of his obligations as a Crown Prosecutor, equally as it reflects adversely on A/Prof Cross’s appreciation of his obligation to strictly adhere to the Expert Witness Code of Conduct. Their evidence and the submissions of the parties concerning that aspect of their evidence will be considered later.

255. [553]

     After the committal in February 2008, A/Prof Cross was asked by Det Insp Jacob to address three issues that had apparently arisen in conference with Mr Tedeschi and to report on them. In a formal requisition of 12 February 2008 he was asked to address the following questions: [273]

     1. (1)

        The correlation between bench press ability and throwing ability, which may involve conducting experiments of a relevant kind;

     2. (2)

        Identifying the difference in width of shoulders of females with arms by their side or straight about their heads; and

     3. (3)

        A further experiment with a mannequin to better demonstrate how, if Caroline Byrne’s body hit the top of Pyramid Rock, her legs would swing around and impact with the rock, thereby damaging them, as a means of supporting A/Prof Cross’s contention that she entered the cavity head first, either directly or very close to the opening of the cavity.

256. [554]

     That request in turn resulted in the preparation of A/Prof Cross’s seventh report of 4 April 2008.

257. [555]

     In respect of the third question set out above, A/Prof Cross considered that the absence of significant injuries to Ms Byrne’s lower limbs was inconsistent with a sliding entry into the crevice, and that the location and orientation of her body was inconsistent with a bounce from the south face of Pyramid Rock. As to throw speed and bench press ability, he referred to what he described as “the implication” from Male B’s bench press ability and the throw speeds he achieved that the plaintiff would be capable of achieving similar results. As to the related question whether it is generally true that stronger males can throw a weight faster than weaker males, he said after conducting further experiments, which were necessary because the sample size of Male A and Male B was too small for reliable extrapolation, he concluded that when throwing a heavy weight there is a strong correlation between throw speed and upper body strength (as measured by the standard bench press method), although he observed that other factors appear also to be relevant.

258. [556]

     In terms of the third issue, after measuring the shoulder width of a sample of sixteen adult females (there being no statistical data available to which he could refer), he concluded it was not possible for a “normal” adult female to reduce her shoulder width to 300mm or less by raising one arm. That was in turn relied upon to further settle the Hole A/Hole B issue, where Hole B allowed an egress of not more than 300mm.

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

1. [557]

   The plaintiff’s case is that from September 2003, when A/Prof Cross was formally retained by the NSW Police to provide expert consultancy services, and then from January 2004 through to February 2006 when he knew the matter was under consideration within the ODPP, he counselled or procured Mr Tedeschi to advise that a prosecution of the plaintiff for murder be initiated, and thereafter in his evidence at trial, on the appeal, and in these proceedings, he has conducted himself as “an advocate for a cause”.

2. [558]

   The plaintiff submitted that:

3. [559]

   The plaintiff further submitted that A/Prof Cross’s “consultancy” extended well beyond providing expert opinion evidence as a physicist, and even beyond the specialised domain of biomechanics (as to which he was not qualified to express an opinion in any event) into the forensic disciplines specific to the training, study and experience of an investigator. The plaintiff submitted in that capacity he became progressively imbued with what he knew or believed was the belief of, initially, Det Insp Jacob and subsequently, Mr Tedeschi, that the plaintiff had murdered Ms Byrne, and that he consciously and consistently expressed his conclusions informed by that fact.

4. [560]

   The plaintiff went further to advance the rather pithy submission that the Court would conclude that as an expert (or masquerading as one) A/Prof Cross was “bogus and a fraud” [275] and, further still, that his motivations were as venal as they were driven by a desire for self-aggrandisement and self-promotion.

5. [561]

   In the context of those wide-ranging criticisms, in final submissions the Court was urged by the plaintiff to make the following findings of fact: [276]

6. [562]

   Those submissions, forcefully put, were primarily advanced in support of the plaintiff’s case that, as a prosecutor, A/Prof Cross was actuated by malice. As the plaintiff made clear in his submissions, the attribution to A/Prof Cross of a motive to lie, and the fact of his having either lied in his evidence in these proceedings and on appeal, or to have failed to honestly account for how he conducted himself both as a consulting expert and as an expert witness at the plaintiff’s trial, are a conclusive source of evidence that in that capacity he was not intent upon ensuring (as a prosecutor) that proceedings were initiated and maintained against the plaintiff for the proper purposes associated with the invocation of the criminal law, but by malice.

7. [563]

   Whilst in his submissions the plaintiff consistently acknowledged that nothing that A/Prof Cross did after March 2006 renders him liable as a prosecutor, the submissions summarised above, forceful though they are, are without the particular essential to make good the plaintiff’s contention that, in respect of A/Prof Cross’s conduct before 2006, he deliberately and dishonestly fabricated evidence; that he deliberately and dishonestly falsified data; and/or deliberately and dishonestly overstated its probative weight, intending, by that deliberate subterfuge, that Mr Tedeschi’s discretion as prosecutor would be misled.

Finding on whether A/Prof Cross is a prosecutor

1. [564]

   Despite my grave misgivings as to whether A/Prof Cross had the appropriate insight as to his obligations as an expert witness at any relevant time, whether in direct consultation with police from September 2003 or in dialogue with prosecuting authorities both before and during the plaintiff’s trial, I am driven to the conclusion that his failure to conform with the standards expected of him as an expert witness are not explained by his mendacity or his intention to deliberately and dishonestly mislead Mr Tedeschi, but by his hubris. It is that attitude which also infected his evidence in the proceedings. His continued failure to appreciate the shortcomings of his approach to his throwing experiments (in particular, undertaking only one so-called “limp throw test” to support the conclusion that an unconscious subject could be thrown at the same speed as a conscious and compliant subject) and his persisting failure to confine himself to offering opinions about matters as to which he had relevant expertise, coupled with his stubborn determination to deflect criticism of any kind, including the criticisms levelled at him by the Court of Criminal Appeal, is readily demonstrated in an article he authored entitled “Misinterpretation of Expert Evidence in Wood v R”, [277] published in the Australian Journal of Forensic Sciences in 2014. The article was accepted for publication on 17 December 2013; that is, after the plaintiff was acquitted by order of the Court of Criminal Appeal.

2. [565]

   A/Prof Cross gave evidence that his purpose in writing the paper was to address the criticisms levelled at him in the judgment of the Court of Criminal Appeal. In that paper he asserted that:

3. [566]

   He went on to complain that no challenge was brought by the Director of Public Prosecutions to the High Court and no reason had been given (presumably to him) for the decision not to challenge it. As a consequence, in his view, there has been no informed analysis of the scientific evidence presented at the trial or any proper response to the Court of Criminal Appeal’s evaluation of that evidence. He expressed regret that the Court of Criminal Appeal misinterpreted what he described as “both the physics and the primary messages that [he] attempted to convey” [279] in his evidence.

4. [567]

   In responding to what he described as “an extraordinary attack on my personal integrity (rather than the science and my evidence itself)”, [280] because of what he regarded as the Court’s preconceived belief that there is a risk than an expert might become embossed with the single objective of solving a problem the party who has engaged them has identified (an unmeritorious observation all the more surprising given the tone of many of the emails extracted above), he said:

5. [568]

   Those remarks, I interpolate, are not indicative of a person who is concerned to conceal his deliberate bias or to conceal the fact that he had knowingly faked experimental data (the findings alleged underpinning the plaintiff’s case that A/Prof Cross should be regarded as a prosecutor), but someone who fails altogether to appreciate the risk of unconscious bias. I should also note that, so far as I understand it, the Court of Criminal Appeal did not have available to it the full course of correspondence passing between the police and A/Prof Cross over the course of many years which was discovered in these proceedings and then exhibited, and which on even the most cursory read, is illustrative of the very risk the Court identified. I commented during the course of the extensive summary of that material, and more than once, that many of A/Prof Cross’s emails to Det Insp Jacob were not only unsolicited and not in any relevant sense responsive to the terms upon which he was formally engaged to advise, but were simply volunteered as were his hypothesised musings about the emotions, motivations, attitudes and predilections of Ms Byrne and her presumed attacker.

6. [569]

   An exemplar of what I am satisfied is A/Prof Cross’s persisting failure of insight into the deficiencies in the experimental regime he designed to ascertain the speed with which Ms Byrne descended to her death was his continuing failure to appreciate that a “single limp throw” executed as the third throw in a series of poolside tests was a wholly insufficient basis upon which to simulate the effect of “spear throwing” a limp or unconscious woman from the edge of a 30 metre cliff in the dark, or to assess the impact of a body in that comportment on throw speed. Of that experiment, he said the appeal court “did not like it”.

7. [570]

   He went on to quote McClellan CJ at CL where his Honour said “no effective experiments were done to ascertain whether an unconscious Ms Byrne could have been thrown the required distance”, [282] before A/Prof Cross concluded:

8. [571]

   A/Prof Cross maintained the position in his evidence in these proceedings, astounding given the patent deficiencies of the “limp throw test”, including criticisms of it by the defendant in these proceedings, that “the limp throw experiment was perfectly valid”. [284] As A/Prof Cross would have it, McClellan CJ at CL dismissed the experiment as having no relevance, thereby expressing an opinion outside his Honour’s field of expertise. The arrogance in that submission is telling of A/Prof Cross’s approach as an expert consultant and as a witness in these proceedings. While he might be forgiven for not fully appreciating that the primary application of the laws of evidence are tethered in relevance, a concept with which the judges of the Court of Criminal Appeal are intimately familiar, his supercilious attitude is not.

9. [572]

   Even were it open to conclude that A/Prof Cross was a prosecutor at the relevant time (that is, up to but not extending beyond the date that Mr Tedeschi advised Mr Cowdery that proceedings against the plaintiff for murder should be commenced), it is essential to proof of his liability as a prosecutor that when he “counselled or procured” the prosecution (that is, by conduct prior to 26 February 2006) he did so in circumstances that establish that he did so maliciously and without reasonable and probable cause.

10. [573]

    That would have obliged the plaintiff firstly to prove what A/Prof Cross made of the material available to him and, secondly, what he should have made of it. In final submissions the plaintiff relied primarily upon what was said to be A/Prof Cross’s dishonest conduct in procuring or counselling Mr Tedeschi to prosecute the plaintiff, to establish that he acted as a prosecutor tortiously. It may be that explains why no other category of conduct was identified in the submissions as evidencing A/Prof Cross’s subjective lack of a belief in the plaintiff’s guilt. Further, given that the plaintiff did not seek to prove that A/Prof Cross knew all the evidence that Mr Tedeschi relied upon in advising that proceedings be commenced (presumably because that is incapable of proof), whether that evidence was or was not objectively sufficient, or whether A/Prof Cross was aware of some or all of the evidence Mr Tedeschi relied upon in initiating the proceedings, does not arise. That being the case, were A/Prof Cross a prosecutor (which I have found he is not), proof that he procured the prosecution in the absence of reasonable and probable cause would depend upon proof of matters, within his knowledge, that he knew or believed rendered his expert opinions erroneous. It would also require proof that his sole or dominant purpose in dishonestly counselling or procuring Mr Tedeschi to prosecute the plaintiff was not to give honest evidence as an expert but to secure a conviction in order to promote himself as a forensic consultant and author and/or for pecuniary motives. The plaintiff would not, in my view, have made out that case in any event.

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

1. [574]

   In the plaintiff's submissions in reply counsel did not abandon the submission originally advanced that in applying for the arrest warrant and then taking the necessary administrative and legal steps to initiate extradition proceedings, Det Insp Jacob played “an active role in the conduct of the criminal proceedings by instigating or setting them in motion (see A v NSW at [34]), and that he should be regarded as a prosecutor on that basis. This submission was maintained despite Det Insp Jacob’s evidence that on 7 March 2006, on receipt of the oral advice from Ms Turner that it was Mr Tedeschi’s view that the plaintiff's solicitor should be contacted to see if the plaintiff was prepared to return to Australia voluntarily, he drafted a proposal to State Crime Command proposing that the plaintiff be arrested in the United Kingdom and extradited to New South Wales, a proposal which was supported by the Commander, Homicide Squad State Crime Command, the Manager, Operations Coordination State Crime Command the same day, and confirmed by the Commander, State Crime Command a week later.

2. [575]

   In the written proposal Det Insp Jacob set out his reasons as follows:

3. [576]

   In circumstances where this proposal was obviously accepted by Senior Command as the preferable course of action from the perspective of the officer in charge of what was a lengthy investigation, the defendant submitted it is artificial, in the extreme, for Det Insp Jacob to be held accountable as a prosecutor. The defendant emphasised that nothing was done by Det Insp Jacob prior to his application for an arrest warrant that could constitute a decision by him that the plaintiff should be charged or prosecuted for murder, or that he gave any advice or recommendation such as might result in a decision of that kind such as to make good the proposition that he effectively “set the proceedings in motion”.

4. [577]

   This was said to be in contrast with the position of Ms Paget-Cooke, a legal officer in the Legal and Compliance branch of the Department of Natural Resources in Bailey v Director General, Department of Natural Resources [2014] NSWSC 1012 where, for the reasons I gave at [272]-[290], I was satisfied that although regarding her as a prosecutor for the purposes of the tort of malicious prosecution was not free from doubt, her authorship of a prosecution memorandum for the attention of the Director-General, which included her recommendation that there was a sufficient legal and evidential basis to support Mr Bailey being charged criminally for the destruction of native vegetation, and her preparation of the matter for prosecution thereafter, could be characterised as her performing "an active role … in the conduct of proceedings … in setting the prosecution in motion”, sufficient to constitute her as a prosecutor for the purposes of the tort.

5. [578]

   Whilst Det Insp Jacob expressed an opinion in the Sufficiency of Evidence Report about the sufficiency of the evidence to support a prosecution, as he was clearly entitled to as the officer who had overall command of the homicide investigation, he did so from the perspective of an investigator, not a lawyer. Other than submitting the Sufficiency of Evidence Report to Operational Legal Support for the attention of Det Sgt Barry in order that he might consider the sufficiency of evidence for the offence of murder, and to recommend that the matter be forwarded to the Office of the Director of Public Prosecutions for the consideration of the Director in accordance with the Director’s Prosecution Guidelines if he was of the view that was appropriate, the decision as to whether or not to ultimately initiate proceedings was at all times within the province of the Director’s office, and at all times subject to the overarching discretion of Mr Tedeschi as the Senior Crown Prosecutor of New South Wales when furnishing the advice that Mr Cowdery requested of him.

6. [579]

   I am not persuaded that by taking the administrative and legal steps on receipt of Mr Tedeschi’s advice two years after submitting the Sufficiency of Evidence Report in order to ensure that the criminal proceedings were initiated without further delay (again, to emphasise, with the express approval of Senior Command) that Det Insp Jacob should be regarded as a prosecutor in the action the plaintiff brings for malicious prosecution.

7. [580]

   In Bailey I expressed the importance of the plaintiff establishing the identity of a prosecutor against whom it is said he was prosecuted maliciously as follows:

8. [581]

   The plaintiff’s assertion in his submissions in reply that it was Det Insp Jacob who ultimately laid the murder charge, irrespective of the interposition of the advice of Mr Tedeschi and the further work that was done within the Director’s office before that advice was furnished to Mr Cowdery, is not, in my view, conduct that in the circumstances of this case makes him accountable as a prosecutor for the tort of malicious prosecution. The flaw in the plaintiff’s submission is exposed by positing the following scenario. Had the plaintiff been charged upon his voluntary return to the jurisdiction by another officer at the direction of State Crime Command, would that officer be liable as a prosecutor? Clearly, they would not. For the plaintiff to make his case against Det Insp Jacob in that scenario, it would follow that he would be a prosecutor at law by virtue only of his seniority as the officer in charge of the investigation between 1998 and 2004, and by reason of his authorship and submission of the Sufficiency of Evidence Report first to Legal Branch and then to the Office of the Director of Public Prosecutions in January 2004 for their consideration and advice. The plaintiff did not seek to make that case. Although Det Insp Jacob was the officer who sought the warrant for the plaintiff's arrest and executed it, that does not, in my view, render him liable as a prosecutor in the circumstances of this case, any more than it would make another senior police officer in Strike Force Irondale a prosecutor for the purposes of the tort of malicious prosecution if he or she were the officer that took that legal and administrative step.

9. [582]

   I am fortified in that view given that after Det Insp Jacob was given clearance from Det Sgt Barry to submit the brief of evidence for the consideration of the Office of the Director of Public Prosecutions, his role was limited to responding to Mr Tedeschi’s requisitions for further work to be done in preparation for the furnishing of advice to the Director, whatever the ultimate view of Mr Tedeschi might have been. My conclusion is fortified further still, there being no evidence that Det Insp Jacob’s views as to whether and when a charge might be laid were solicited formally or even informally by Mr Tedeschi, and no evidence that he volunteered his view to officers within the ODPP at any time.

10. [583]

    If the plaintiff’s case that Det Insp Jacob should be regarded as a prosecutor depended solely upon his application for the issue of the arrest warrant and his initiation of the process of extradition which culminated in charging the plaintiff with murder on 3 May 2006, the plaintiff’s lengthy submissions directed to establishing that he lacked a subjective belief in the sufficiency of the evidence to support a charge of murder at the time he submitted the Report (or at any time thereafter until the date of charge) would be otiose, as would be his submissions on the issue of malice. However, as I read the plaintiff’s submission in reply, an alternate basis was advanced upon which accountability for the tort of malicious prosecution should be attributed to Det Insp Jacob.

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

1. [584]

   The plaintiff submitted that the Court would also be satisfied that Det Insp Jacob falsified evidence or failed to disclose evidence both in the Sufficiency of Evidence Report, and in the second and subsequent reports of A/Prof Cross which he edited, intending by that conduct to deliberately mislead Mr Tedeschi, knowing the plaintiff would be charged with murder only in the event that Mr Tedeschi advised that a charge should be laid. The plaintiff submitted that if Det Insp Jacob were also shown to be complicit in the alleged deception being practised by A/Prof Cross upon Mr Tedeschi, his liability as a prosecutor would also be no different to that of A/Prof Cross.

2. [585]

   Having concluded that the plaintiff has failed to establish any liability in A/Prof Cross as a prosecutor, the remaining question is whether the plaintiff has persuaded me that, independently of the actions of A/Prof Cross in his dealings with the police (including Det Insp Jacob), and independently of A/Prof Cross’s dealing with Mr Tedeschi, Det Insp Jacob dishonestly procured Mr Tedeschi to prosecute the plaintiff, and that he did so in circumstances that satisfy the tests for proof against him that in doing so he initiated proceedings against the plaintiff maliciously and without reasonable and probable cause.

3. [586]

   The question whether the plaintiff has established Det Insp Jacob acted dishonestly, intending by that conduct to counsel or procure Mr Tedeschi to recommend to the Director that charges be brought against the plaintiff, and the related question whether Mr Tedeschi relied on what the plaintiff submitted was the false or misleading information he provided in the Sufficiency of Evidence Report (and that he knew that A/Prof Cross was providing in his various reports), are the facts in issue on the alternate basis upon which Det Insp Jacob’s liability as a prosecutor depends.

4. [587]

   The plaintiff identified a number of interrelated bases on which the Court was invited to conclude that Det Insp Jacob was dishonest both in his dealings with Mr Tedeschi and in his evidence in these proceedings. The difficulty with the plaintiff's submissions generally as they relate to Det Insp Jacob as a prosecutor on this alternate basis (a difficulty that arises both in counsel’s primary submissions and in the submissions in reply) is the failure to clearly differentiate between what is relied upon to establish Det Insp Jacob’s alleged dishonesty in procuring the prosecution (the conduct which is said to constitute him as a prosecutor in accordance with the principles in Brain) and the conduct which is said to evidence a subjective want of reasonable and probable cause and malice in his conduct as a prosecutor were he found to have that status. While it may be that the same body of evidence might be relied upon to establish proof of both propositions, the undisciplined approach in the structure and content of the plaintiff’s submissions to the different issues to which the evidence might give rise, in particular to the wide-ranging allegations of dishonesty attributed to Det Insp Jacob, are not readily discernible from the plaintiff’s pleaded case against Det Insp Jacob. In addition, some of the more serious allegations were not put at all in accordance with the rule in Browne v Dunn.

The allegations that Det Insp Jacob acted dishonestly

1. [588]

   The allegations of dishonesty and/or general mala fides in that category are contained in pars 16.21, 16.33 and 16.49. Other allegations of dishonesty and/or general mala fides for which the plaintiff contended are as follows:

2. [589]

   I have already dealt with the allegation of mala fides and dishonesty in (a), (b), (d), (e), (f) and (i) above in the course of considering whether the plaintiff has made out his case that A/Prof Cross should be regarded as a prosecutor (see [564]-[573]). I do not regard (c), (g) or (h) as supported by the evidence or as having any relevant bearing on whether Det Insp Jacob should be found to be a prosecutor consistent with the principles in Brain in any event.

3. [590]

   Additional submissions were also directed to establishing Det Insp Jacob’s status as a prosecutor by reason of what was said to be the provision of deliberately false, inadequate or misleading information in the Sufficiency of Evidence Report, knowing that it was to be submitted to the DPP for their consideration and intending by that information to mislead Mr Tedeschi. This information was said by the plaintiff to include:

4. [591]

   In order to consider whether the matters in [587(a)-(e)] are made out, the plaintiff contends that it is necessary to analyse and review the content of the Sufficiency of Evidence Report and the three phases of the police investigation which were summarised in the Report.

The three phases of the police investigation

1. [592]

   At about 3:30am on 8 June 1995, Ms Byrne was reported to Rose Bay Police as a missing person by her father, Tony Byrne. The plaintiff attended at the police station with Mr Byrne and her brother, Peter Byrne. The plaintiff identified himself to police as Ms Byrne's boyfriend. The plaintiff told police that he had last seen Ms Byrne at about 1pm the previous afternoon at their apartment in Macleay Street, Potts Point, and that he had not seen or spoken to her since. He expressed fears that she may have committed suicide. He also told police that upon realising at about midnight (either 11:30am or 12:40pm depending on his later account to police) that Ms Byrne had not returned to their apartment, he went searching for her and, upon finding her locked car in Gap Road at Watsons Bay, he searched for her on the cliffs above the Gap but could not find her. He told police that after alerting her father and brother by public telephone from Watsons Bay to his concerns that she might have committed suicide, and after collecting them from The Connaught, an apartment block in the city where Tony Byrne lived, and then undertaking a further search of the Gap with their assistance, Ms Byrne could not be located.

2. [593]

   After the missing person report to Rose Bay Police the plaintiff, together with Ms Byrne's father and her brother, returned to Watsons Bay with a number of general duties police officers to continue the search before the arrival of the Police Rescue Squad at about 4am.

3. [594]

   The plaintiff made various assertions, first to Peter Byrne at the Gap before attending at the Rose Bay police station, and then later to officers of the Police Rescue Unit after they became involved in the search, that he thought he could see Ms Byrne's body at the base of the cliffs by reference to her clothing, in particular to her shoes.

4. [595]

   Ms Byrne’s body was eventually located at the base of the cliffs wedged head first into a crevice.

5. [596]

   A search of the top of the cliff on both sides of the safety fence that separated the pedestrian walkway from the cliff edge by Rose Bay general duties police in the early morning of 8 June 1995 revealed nothing to indicate the place from which Ms Byrne left the cliffs or anything to suggest the mechanism by which she descended to her death.

6. [597]

   No detectives were involved in the initial investigation. No Crime Scene Unit officers attended the scene and no police attended the post-mortem. Ms Byrne's car was searched at the scene, largely to determine whether a suicide note had been left. Her wallet, which the plaintiff claimed to have taken from her car when he found it in Gap Road, was not seized. Her car was not seized for forensic analysis. Additionally, there was no canvass of the local residents to determine whether anyone had seen or heard anything that might bear upon when and how Ms Byrne fell to her death. No statements were taken from the two fishermen who reported hearing a woman scream at about 11:30pm. The attempts Cst Woods made to locate the fishermen in the first phase of the investigation were unsuccessful. They did not come forward until the broadcast of the reconstruction of the finding of the body in May 1996.

7. [598]

   A post-mortem examination conducted on 9 June 1995 revealed Ms Byrne’s weight as 57 kilograms and her height as 174 centimetres. [286] The injuries recorded in the post-mortem report included multiple fractures of the face and the bones at the vault and base of the skull from which the brain extruded. The right eye was not in its orbit. The right upper humerus was fractured. Multiple rib fractures were noted, as was a crush fracture of the vertebrae at T5. A range of abrasive injuries to the upper torso and limbs were noted, as were multiple abrasions across the midline of the abdomen and on the upper right thigh. There was an abrasive injury over the left hip and an abrasion extending from above the left knee to the lateral left thigh. There were areas of abrasion on the left and right hands with a deep laceration on the dorsum of the left hand. [287]

8. [599]

   On internal examination, an avulsed left kidney, a lacerated left lung, contusions of the right lung and a lacerated spleen were noted. Toxicological analysis showed past ingestion of Rohypnol registered as a metabolite in the urine. There was no active drug or metabolite in the blood. The blood alcohol reading was nil. [288]

9. [600]

   Evidence was also available to Det Insp Jacob in his preparation of the Sufficiency of Evidence Report and led at trial from a pharmacologist to the effect that although Rohypnol was detected in Ms Byrne’s urine, there was no evidence of Rohypnol on blood analysis, whether in the form of the drug itself or the metabolite. [289] Mr William Allender, forensic scientist in medical chemistry, gave evidence to the effect that it was unlikely Ms Byrne had consumed Rohypnol the day prior to her death. When asked by Mr Tedeschi in re-examination how long before Ms Byrne’s death she must have taken Rohypnol, Mr Allender answered “it would be well in excess of 25 hours”. [290]

10. [601]

    Evidence was also led from Prof Starmer, pharmacologist, by Mr Terracini. The following exchange occurred:

11. [602]

    Later, in cross-examination, Mr Tedeschi asked:

12. [603]

    Having regard to the evidence of Prof Starmer and Mr Allender, Mr Tedeschi submitted that the plaintiff fabricated evidence that Ms Byrne was barely rousable when he returned home at lunchtime on 7 June 1995, and that he had given her one Rohypnol tablet on 7 June 1995.

13. [604]

    Mr Tedeschi’s closing submission in respect of Rohypnol was as follows:

14. [605]

    The cause of death was reported by Dr Hillery, forensic pathologist, as resulting from multiple injuries, including major disruption of the cranium and extrusion of the brain, bilateral haemothoraces and laceration of the left lung, avulsion of the left kidney, laceration of the spleen, crush fracture at T5, fracture of the upper humerus, multiple rib fractures and multiple abrasions. [294]

15. [606]

    Dr Hillery was called as a Crown witness at the plaintiff's trial. No evidence was adduced from him in chief as to whether all or only some of the injuries were consistent with Ms Byrne’s descent from the cliff and the rocks below. In cross-examination he said he was unable to determine whether the body had impacted with the rocks once or more than once, or whether the fractures to the thoracic spine were occasioned before the head injuries. He gave evidence that the nature and extent of the injuries to the upper part of the body were all consistent with high energy impact injuries occasioned by a fall from height. He found no evidence of recent bruising associated with any of the abrasions. He considered the abrasions consistent with impact with a rough abrasive surface. He confirmed that examination of the hyoid bone and thyroid cartilage in the neck around those two points revealed no damage. [295]

16. [607]

    The initial police investigation was conducted by Cst Craig Woods, a general duties police officer attached to Rose Bay Police Station. He was appointed to that role after he arrived at the station on 8 June 1995 on the designated morning shift. Cst Woods prepared a coronial brief of evidence which was submitted to State Coroner, Mr Derrick Hand. Based on the information that he had assembled by that date, including information from the plaintiff and Ms Byrne's father, it was Cst Woods’ opinion that Ms Byrne’s death was suggestive of suicide. [296] Ms Byrne's father declined the offer of an inquest. He told police that he accepted that his daughter had taken her own life.

17. [608]

    In addition to a statement from the plaintiff dated 12 June 1995 and a recorded interview with him dated 10 July 1995, the brief of evidence also included statements from Dr Cindy Pan (7 July 1995), Ms Carel Clifford (26 June 1995), Mr Lance Melbourne (9 July 1995), Mr Craig Martin (9 July 1995), Nicholas Samartis (12 July 1995) and Brett Cochrane (12 July 1995).

18. [609]

    Cst Woods did not prepare a statement for inclusion in the coronial brief of evidence. A statement was taken from him on 19 August 1998 during the second phase of the investigation. In the course of being interviewed by police who were assisting Det Insp Wyver at that time, Cst Woods referred to the brief of evidence he had supplied to the Coroner to refresh his memory of the course of the investigation in its first phase, including the statement he obtained from the plaintiff on 12 June 1995 and a record of interview he conducted with him on 10 July 1995. [297] Cst Woods also referred to notes in his notebook when he first spoke to the plaintiff shortly after 6:55am at Rose Bay police station on 8 June 1995 for the purposes of completing the documentation necessary for the admission of Ms Byrne's body to the morgue, including the need for her body to be identified where the gross injuries to her face and head rendered visual identification impossible. Ms Byrne was formally identified from dental records provided by her father.

19. [610]

    In Cst Woods’ 1998 statement, he said that before a formal statement was taken from the plaintiff on 12 June 1995, the plaintiff told him that Ms Byrne had started a new job two weeks earlier and was not happy. The plaintiff also told him he had about five or six Rohypnol tablets in the bathroom (tablets that were prescribed to him) but there were none in the packet when he checked at around 1pm on 7 June 1995 when he arrived home to find Ms Byrne sleeping. Cst Woods also reported that during his discussions with the plaintiff sometime on 8 June 1995 he was told that Ms Byrne had been to see Dr Pan and that the plaintiff provided contact details for her. The plaintiff also told Cst Woods that he loved Ms Byrne and could not understand why she would have committed suicide. [298]

20. [611]

    The plaintiff told Cst Woods in his statement of 12 June 1995 that despite Ms Byrne being, to his observation and in his experience of her as his partner, not a person who would harm herself, much less take her own life, he accepted that was what she had done:

21. [612]

    It was in the course of making enquiries of the plaintiff at the morgue on 8 June 1995 as to whether he knew what clothing or jewellery Ms Byrne might have been wearing, the plaintiff told Cst Woods that after driving Ms Byrne's father and brother home after they had abandoned the search for her, he went to their apartment and, on checking Ms Byrne's wardrobe, noticed that “black tights, a denim jacket and joggers” [300] were missing. Ms Byrne was confirmed on admission to the morgue to be wearing clothing of that description together with a blue sweat shirt and white tee shirt. This information was not conveyed to the plaintiff.

22. [613]

    Cst Woods detailed the conversation in his statement of 19 August 1998 as follows:

23. [614]

    The plaintiff was asked by Mr Paul Barry in the “Witness” program in 1998 how he knew what Ms Byrne was wearing at the time of her death. They had the following exchange:

24. [615]

    The plaintiff’s claim to know what Ms Byrne was wearing (ostensibly from checking her wardrobe as the police search was progressing at the Gap) to support his claim to police that he thought he could identify her by that clothing when specialist search lights were shone on her body from the cliff top at the Gap was relied upon by Det Insp Jacob in the Sufficiency of Evidence Report in support of the following conclusion:

25. [616]

    The plaintiff’s account of his movements on 7 and 8 June 1995, first to Cst Woods and then to other police officers in 1996 and 2001, were summarised in some detail in the Sufficiency of Evidence Report. Det Insp Jacob expressed the view that the plaintiff had falsely accounted for his movements at material times on both days and, by inference, that he had falsely denied any knowledge of the circumstances in which Ms Byrne died, a position maintained by the Crown when Mr Tedeschi opened the case to the jury.

26. [617]

    Suffice to say the account the plaintiff gave first to Cst Woods on 12 June 1995 about the car he drove to look for Ms Byrne, where he got it from, and why he drove into the night to look for her at all before calling her brother and father or trying to call her mobile phone (neither of which he did according to the analysis of the phone services the plaintiff had access to in June 1995 and the analysis of Ms Byrne's mobile phone as set out in the Sufficiency of Evidence Report), together with the explanation the plaintiff gave for taking that approach when he was interviewed by police in 1996 and 2001 and again in the interview for the “Witness” program in 1998, was seen as significant in the Sufficiency of Evidence Report. It was later relied upon by the Crown at the plaintiff’s trial as conduct probative of his guilt.

27. [618]

    It was also an issue of significance in the way the Crown case was advanced at the plaintiff’s trial that although the plaintiff knew that Ms Byrne invariably utilised the secure car park under the Connaught when visiting with her father, he did not check with the concierge at the security desk or place a call to Ms Byrne's father to see whether she was safely asleep in his apartment.

28. [619]

    On 12 June 1995 the plaintiff gave police some documents he said he had found in Ms Byrne's wallet when he found her car parked at Watsons Bay, including receipts evidencing a banking transaction at 3:37pm on 7 June 1995 and a purchase of petrol and confectionary between 3:32 and 3:39pm. Both transactions occurred in the eastern suburbs. Nothing was done in the first phase of the investigation to see whether the petrol station attendant recalled the transaction nor, it appears, were efforts were made to identify the Westpac Bank in Vaucluse from where the $50 was withdrawn.

29. [620]

    It was the Crown case at trial that because the plaintiff had access to Ms Byrne's credit cards and knew her PIN number, and because the banking receipt did not have the branch name of the Westpac bank from which the money was withdrawn but the plaintiff had told various people that Ms Byrne in fact withdrew money from the Vaucluse branch on the afternoon of 7 June 1995, either he made the withdrawal or was with Ms Byrne when she did. [304] This was said to be consistent with the Crown case that Ms Byrne was at Watsons Bay at 3pm when she was last seen by Mr Martin.

30. [621]

    Ms Byrne's father declined to be formally interviewed by Cst Woods in the first phase of the investigation. He also advised police that no member of his family, including his son Peter Byrne, wished to be interviewed. He did inform Cst Woods, however, that his wife had committed suicide in 1991 and that in 1992 his daughter had made an attempt on her life by consuming sleeping tablets in a bath resulting in her being hospitalised. Mr Byrne did not seek an inquest into the manner and cause of his daughter’s death. He apparently accepted at that time that she had taken her own life.

31. [622]

    Mr Byrne supplied police with three statements in the second phase of the investigation dated 24 May 1996, 9 August 1999 and 30 August 1999. By the time of the inquest he had disavowed any possibility that his daughter had committed suicide. He also wrote eight letters to police between January 1996 and November 1996 and participated in a video “run around” at the Gap in August 2003 in the third phase of the investigation. [305]

32. [623]

    Det Insp Jacob summarised the effect of the information provided by Mr Byrne throughout the police investigation in the Sufficiency of Evidence Report.

33. [624]

    Mr Tedeschi placed very considerable reliance on Mr Byrne’s evidence at trial in discounting any reasonable possibility that Ms Byrne had committed suicide. Mr Tedeschi also relied upon his evidence to advance the submission that the plaintiff was motivated to kill Ms Byrne, in part because of her fading interest in him and, as a secondary motive (said to strengthen the motive relating to his fears that his relationship with Ms Byrne was at an end), a concern that she might disclose confidential information concerning the Offset Alpine printing company and the enquiry by the Australian Securities Commission into the affairs of that company which the plaintiff feared would damage his relationship with Mr Rivkin. One of the issues that presents in these proceedings is whether it was open to Mr Tedeschi to advance that submission. It is the plaintiff’s case that it was not a submission fairly based on the evidence, or an inference that could be legitimately drawn from the evidence, but a submission based solely on smear and innuendo. This is said by the plaintiff to be a blatant contravention of Mr Tedeschi’s obligations as a Crown Prosecutor and eloquent of his malice as a prosecutor. I will return to consider that submission later in these reasons.

34. [625]

    Det Insp Jacob also referred to the issue of motive in the Sufficiency of Evidence Report, as to which he said:

35. [626]

    Cst Woods took a statement from Dr Pan, Ms Byrne's general practitioner, on 7 July 1995, concerning her consultation with Ms Byrne on 5 June 1995 and her referral of Ms Byrne to Dr Sippe, psychiatrist. An appointment with Dr Sippe was scheduled for the afternoon of 7 June 1995. Ms Byrne did not attend that appointment. [307]

36. [627]

    From her clinical notes, Dr Pan confirmed that Ms Byrne complained of feeling depressed for about four weeks but “more so” in the last week. Ms Byrne told Dr Pan that she had commenced a new role in her employment with June Dally-Watkins Pty Ltd (a modelling and deportment school) but was unable to say whether she liked the new role or not. She firmly denied any thoughts of self-harm. Dr Pan encouraged Ms Byrne to see a psychiatrist and, as noted above, an appointment was organised with Dr Sippe for 7 June at 4:45 pm. Dr Pan gave a further statement on 31 May 1996, in the second phase of the police investigation, and gave evidence at the coronial inquest on 24 November 1997. [308]

37. [628]

    It will be necessary to consider the full complement of the evidence bearing upon Ms Byrne's mental health set out at length by Det Insp Jacob in the Sufficiency of Evidence Report, including Dr Pan’s evidence at the inquest and the further investigations undertaken as the third phase of the investigation developed under Det Insp Jacob’s command as the officer in charge.

38. [629]

    It will also be necessary to consider the evidence available to Mr Tedeschi when he advised Mr Cowdery in February 2006 that a prosecution of the plaintiff for murder should be commenced and the evidence led at trial in the Crown case to discount what was accepted by the Crown was the reasonable possibility that her death was a result of suicide. It is the plaintiff’s case that neither Det Insp Jacob nor Mr Tedeschi were in a position to refer to evidence (in the case of Det Insp Jacob) or to adduce evidence (in Mr Tedeschi’s role as Crown Prosecutor) excluding suicide as a reasonably possible explanation for her death. The plaintiff also contends that Mr Tedeschi’s failure to lead evidence of Ms Byrne’s 1992 hospital admission after she overdosed on sleeping tablets was in dereliction of his duties as a prosecutor and evidence of malice. That submission will be addressed later.

39. [630]

    Unsurprisingly, if for no other reason than the proximity of Ms Byrne’s attendance on Dr Pan on 5 June 1995 and her death on 7 June 1995 after having failed to attend the scheduled appointment with Dr Sippe at 4:45pm on 7 June 1995, suicide was considered by Det Insp Jacob as an alternate hypothesis for her death. In concluding in the Sufficiency of Evidence Report that Ms Byrne's death was the result of a homicide, he reported his views that investigating police had eliminated any reasonable hypothesis of suicide (or accident or misadventure) and the reasons for so concluding. [309]

40. [631]

    The plaintiff does not submit that the suicide hypothesis was not thoroughly investigated by police, at least in the sense that it was not suggested that evidence was available to support the reasonable possibility of suicide which was not considered by Det Insp Jacob or which was downplayed in the Sufficiency of Evidence Report or by other officers, including Cst Woods, who were involved at earlier points in time. In Cst Woods’ statement of August 1998 (taken by Det Insp Wyver in the second phase of the investigation), he said that his belief that Ms Byrne had committed suicide (as he had reported in his statement to the Coroner) was based on the evidence then available to him, in particular the plaintiff’s account that Ms Byrne was a person who suffered depression and who had attempted suicide in the past. Cst Woods went on to say in his August 1998 statement that although he suspected that suicide was not the explanation for Ms Byrne’s death, particularly after speaking with Mr Melbourne and Mr Martin and their identification of Ms Byrne on the afternoon of 7 June 1995, his investigation failed to uncover any evidence which suggested that her death was the result of anything other than suicide. [310]

41. [632]

    It was not suggested by Mr McClintock in his cross-examination of Det Insp Jacob or Mr Tedeschi that the vast number of witnesses who were interviewed by officers of Strike Force Irondale and who opined that in their experience of Ms Byrne and their exposure to her over the weeks and months prior to her death that she was unlikely to have taken her own life, were influenced by police (subtly or otherwise) to moderate their opinions in some improper way. Neither was it submitted that Det Insp Jacob’s approach as an investigator to the question of suicide in the Sufficiency of Evidence Report, or his approach to that question in the course of Strike Force Irondale more generally, was flawed in some other respect. Rather, the submission is advanced that his ultimate belief that suicide had been excluded beyond reasonable doubt was not a view open to him.

42. [633]

    A second police investigation was initiated in May 1996 after the Coroner referred the matter to the South Region Major Crime Squad, Homicide Unit. Thereafter, Det Insp Wyver conducted further investigations in advance of the inquest which was convened between November 1997 and February 1998, by this time at Mr Byrne’s request. These investigations called into question the assumption that Ms Byrne had committed suicide. Det Insp Wyver conducted a further interview with the plaintiff on 14 June 1996. [311]

43. [634]

    A number of people gave evidence at the inquest, including the plaintiff. By the time of the inquest Ms Byrne's father changed his opinion as to the possibility of his daughter having committed suicide. The plaintiff remained firmly of the view that she had committed suicide. The plaintiff gave a detailed account in his evidence to the Coroner of what he claimed to know of Ms Byrne's previous suicide attempt (although they were not in a relationship at that time) and what he knew of her mental health in the days or weeks before her death. He also explained why he accepted the fact that Ms Byrne had taken her life. He expressed himself in the following way:

44. [635]

    Evidence was also adduced at the inquest from Mr Melbourne and Mr Martin, each of whom had identified the plaintiff as one of two men they said they had seen with Ms Byrne at Watsons Bay on the afternoon of 7 June 1995 in statements they gave to Cst Woods on 9 July 1995 after Ms June Clifford (Ms Byrne's employer) informed Cst Woods that they were able to identify Ms Byrne from a photograph she had showed them. Their identification of Ms Byrne from a single photograph, and later their identification of the plaintiff as the man in Ms Byrne’s company and the company of another man on the afternoon of 7 June 1995, also from a single photograph, formed part of what was relied upon by Det Insp Jacob in the Sufficiency of Evidence Report, and by the Crown at trial, as evidence that the plaintiff was with Ms Byrne at Watsons Bay on 7 June 1995.

45. [636]

    The evidence of Mr Melbourne and Mr Martin at the inquest (inclusive of Mr Melbourne’s identification of the plaintiff in the foyer of the Glebe Coroner’s Court in November 1997 and Mr Martin’s identification of him in the second tranche of the inquest in February 1998 as one of the two men they had seen in the company of Ms Byrne on the afternoon of 7 June 1995), together with the evidence of Mr Doherty (a witness who came forward after the inquest and after viewing the “Witness” program with information that he had seen and heard a woman and two men – one of whom he said was similar to the plaintiff – arguing over a period of hours on the evening of 7 June 1995), was also information relied upon, first by Det Insp Jacob in the Sufficiency of Evidence Report, and then by the Crown at trial as further evidence strongly probative of the plaintiff's guilt.

46. [637]

    In his record of interview of 10 July 1995 Cst Woods raised with the plaintiff the suggestion that he had been seen in the Watsons Bay area with Ms Byrne and another man on the afternoon of 7 June 1995 as to which the plaintiff said he “wasn’t with her then”. [313] In the immediately preceding series of questions in that interview the plaintiff said he was at Ditto’s restaurant at Darlinghurst that day between 1:15pm and 1:45pm with Mr Samartis and Mr Cochrane (he had previously told Sgt Woods that he had lunched at that restaurant but had not been specific as to the time or who he had been with) after which he went to Alife restaurant in Stanley Street, East Sydney, and “picked up [his] boss’s lunch partner and took him to his office”. [314] He said he then drove to Bondi where he ate lunch at the Lamrock Café after which he went home to see how Ms Byrne was and, finding her not at home, returned to work at about 4pm.

47. [638]

    Mr Samartis and Mr Cochrane provided statements to Sgt Woods on 12 July 1995. Both gave evidence at the inquest in which they confirmed that they had lunch together at Ditto’s Café on 7 June 1995 and, after they had ordered lunch, the plaintiff joined them shortly after midday. They said the plaintiff also ordered lunch but that he had received a phone call and left prior to eating. Mr Cochrane gave evidence that the plaintiff had been at the café for about 30 minutes before leaving. They each gave an account that the plaintiff said he had to pick up his boss. Neither of them had any further contact with the plaintiff that day.

48. [639]

    In his evidence before the Coroner the plaintiff maintained the account he had given to police of last seeing Ms Byrne at their apartment in Potts Point at around 1pm on 7 June 1995, and having not seen her or spoken to her after that time. He also gave evidence that after leaving Ditto’s Café he collected Mr Rivkin and former Senator Graham Richardson from Alife. He said he drove Mr Richardson into the city and then went to Bondi where he ate lunch. [315]

49. [640]

    Mr Richardson and Mr Rivkin were interviewed by police in the third phase of the investigation. Statements were taken from Mr Richardson in February 2000 and October 2003. Mr Rivkin participated in a lengthy record of interview with Det Insp Jacob on 4 August 2000. [316] Mr Rivkin was deceased by the time of the plaintiff’s trial in 2008. Mr Richardson gave evidence at the plaintiff's trial. Mr Rivkin’s record of interview was tendered in the Crown case.

50. [641]

    Their evidence, together with a range of other evidence relating to the plaintiff's movements on the afternoon and early evening of 7 June 1995, was initially assessed by Det Insp Jacob in the Sufficiency of Evidence Report as relevant to the question whether the so-called alibi evidence operated to contradict the accounts given by Mr Melbourne and Mr Martin of seeing the plaintiff at Watsons Bay on the afternoon of 7 June 1995 or whether it corroborated the plaintiff’s account to police (an account from which he has never resiled) that he was not at Watsons Bay during the afternoon of 7 June 1995 with Ms Byrne because he was elsewhere attending to various work-related tasks.

51. [642]

    At the conclusion of the second tranche of the inquest on 12 February 1998, notably on the occasion when Mr Martin gave evidence of having identified the plaintiff on his approach to the Glebe Coroner's Court as one of the two men he saw in Ms Byrne's company at Watsons Bay on 7 June 1995, the Coroner published his findings in which he concluded:

52. [643]

    In the Coroner’s findings, including what he described as “one glaring inconsistency” [318] in the account given by the plaintiff, namely, how he managed to see Ms Byrne’s footwear having regard to the prevailing conditions on the night with what the Coroner described as a “barely operating torch”, [319] he said that by far the most telling inconsistency was the conflict between the plaintiff’s evidence and the evidence of Mr Martin and Mr Melbourne. He regarded that evidence as evidence of identification which he did not consider was contaminated as a result of the two witnesses having “got their heads together”. [320] He went on to say that although both witnesses gave evidence of their sighting on either Tuesday 6 June or Wednesday 7 June 1995, he was satisfied from independent evidence that it must have been on 7 June, not only because Ms Byrne’s car was seen by them later that evening and again the following morning, but because Ms Byrne was at work at Parklea on 6 June 1995. [321]

53. [644]

    In essence, the Coroner regarded the identification of the plaintiff at the Coroner’s Court as an identification of a man who was a stranger to both Mr Martin and Mr Melbourne, although it must fairly be said that the Coroner also considered their identification of Adam Leigh as the second person seen in the afternoon of 7 June 1995 with the plaintiff and Ms Byrne as evidence of similar weight when, as became obvious in the course of the third phase of the investigation and as accepted by the Crown Prosecutor at trial, that identification was a misidentification. [322]

54. [645]

    On the same date that the Coroner entered an open finding into the manner and course of Ms Byrne’s death, he directed Det Insp Wyver to continue investigations into the circumstances surrounding her death. This became what I have referred to as the second phase of the police investigation.

55. [646]

    Thereafter, extensive publicity focused on the police investigation into the circumstances in which Ms Byrne died. Of particular significance, for a number of reasons, was the Channel 7 “Witness” program which broadcast a segment relating to Ms Byrne’s death in 1998. The plaintiff cooperated in the production of the program. He was interviewed by Paul Barry, journalist and presenter, as part of the broadcast.

56. [647]

    As noted earlier, Mr Doherty approached police after viewing the “Witness” program with what was considered by police to be evidence of another potential sighting of what may have been Ms Byrne and the plaintiff with another man at Watsons Bay on 7 June 1995, this time from about 8pm for some hours. [323]

57. [648]

    On 9 April 1998 Detective Insp Wyver interviewed Mr Doherty and took a detailed statement from him. [324] Police were already in possession of information (from Mr Melbourne) that Ms Byrne's white Suzuki Vitara was parked in Gap Road at the time Mr Doherty made his observations, the car having been in that same location for some hours.

58. [649]

    The various sightings of the Suzuki Vitara parked in Gap Road on the late afternoon and then late in the evening of 7 June 1995 in the same location where it was seen by Ms Byrne's father and brother when they arrived in the early hours of the morning of 8 June 1995 was a matter upon which Det Insp Jacob placed very considerable reliance in the Sufficiency of Evidence Report, as Mr Tedeschi did at the plaintiff's trial. Mr Tedeschi submitted to the jury in his closing address that since the Suzuki Vitara was at Watsons Bay on 7 June 1995, Ms Byrne must also have been there. He went on to submit that it was “an amazing coincidence” [325] that Ms Byrne should be seen by witnesses (Messrs Melbourne and Martin) with a man who, quite independent of them later identifying the plaintiff at the inquest in November 1997, was one of the two men described by them to police in June 1995 in a way that closely fitted the plaintiff’s appearance at that time.

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

1. [650]

   The Coroner was informed of the additional information from Mr Doherty and on 30 April 1998 Det Insp Jacob met with the Coroner. Having regard to that information, together with a number of matters that had been outstanding both during and after the inquest, the Coroner requested that the Homicide and Serious Violent Crime Agency conduct further investigations into Ms Byrne's death. It was this request which resulted in the initiation of Strike Force Irondale under the command of Det Insp Jacob. [326]

2. [651]

   Thereafter, albeit intermittently, 39 successive Crime Agencies Progress Reports were furnished by Det Insp Jacob to Senior Command between 1 July 1998 and 30 November 2003. [327] These reports charted the course of the investigation, progressively identifying matters that either remained outstanding or required follow-up, and the nature of the lines of continuing enquiry and the outcome of those enquiries. A number of witnesses who had provided statements prior to the inquest were re-interviewed and a range of fresh statements taken from a large number of additional witnesses.

3. [652]

   Strike Force Irondale sought a Coroner’s Court order on 24 September 1998 for production of all material generated during the production of the “Witness” program. The full complement of videotape interviews was produced. They were the subject of assessment in the Sufficiency of Evidence Report. Excerpts of the interview with Mr Barry were tendered in the plaintiff's trial.

4. [653]

   Although at the time Det Insp Jacob furnished the Sufficiency of Evidence Report to the ODPP in January 2004 some statements were said by him to be outstanding (notably, his express reference to the fact that A/Prof Cross’s first report dated 19 November 2003 was not included as A/Prof Cross was attempting to appoint, with greater certainty, the point from which Ms Byrne left the cliff top), he represented that the Report, and the accompanying brief of evidence, indexed in six volumes, constituted the full complement of the materials generated through all phases of the police investigation.

5. [654]

   It will be necessary to refer at some length to the form and content of the Report, representing, as it does, both Det Insp Jacob’s assessment of the evidence available to investigators upon which advice was sought as to its sufficiency to support a charge of murder, and the evidence Mr Tedeschi had available to him in the course of preparing for and ultimately furnishing his advice to Mr Cowdery that a charge of murder should be brought.

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

1. [655]

   On 23 July 2001 the plaintiff participated in a further interview with Det Insp Jacob in which he repeated his account of his movements and what he knew of Ms Byrne's movements in the days leading up to her death and on that day, including a detailed account of what he did when he woke to find that she was not at their home; what he did before he arrived at the Gap to find her parked car in Gap Road; what he did upon finding her car; and what he said and did thereafter, including his participation during the extensive search that ultimately led to her body being located. [328]

2. [656]

   For the purposes of these proceedings the defendant prepared a detailed summary of the plaintiff’s various accounts of these events to police in 1995, 1996 and 2011, to the Coroner in his evidence at the inquest in November 1997 and to the media. That summary was annexed as Schedule D to its final submissions. The Schedule also sets out what the plaintiff said to police, the Coroner and the media about his knowledge of Ms Byrne's previous suicide attempts and her depression, including what he knew of her referral to a psychiatrist by her treating doctor two days before her death; whether he had any reason to believe she may have taken her own life; and why he accepted that she had committed suicide by throwing herself from the cliff top at Watsons Bay.

3. [657]

   This material was also the subject of a detailed analysis and comment in the Sufficiency of Evidence Report, it being Det Insp Jacob’s view that as the investigation progressed, the plaintiff “changed, altered or denied previous versions on various significant issues so that they were more reasonable and palatable”. [329] In his closing address, Mr Tedeschi invited the jury to draw the same conclusion using, by way of example, what he submitted was the plaintiff’s attempts over time to advance a more reasoned explanation for his claim to have seen Ms Byrne's feet and ankles from the top of the cliff in the location where she was ultimately found at the base of the Gap at a time when the darkness and prevailing weather conditions, including heavy mist at the base of the cliff, prevented anyone, including the police using specialist light sources, from seeing the base of the cliffs from the cliff edge, much less discerning the form of a body in the rocks. The fact that the plaintiff had made these claims was relied upon by the Crown at trial (as it was by Det Insp Jacob in the Sufficiency of Evidence Report) as a source of esoteric knowledge that could only be explained because the plaintiff was with Ms Byrne when she descended to her death. It was described by Mr Tedeschi in his address as the “bottom line”, [330] “an irrefutable point” [331] and “killer point”. [332]

4. [658]

   In these proceedings it is the plaintiff’s case that Mr Tedeschi deliberately misstated the evidence in support of that submission and that in the process he constructed a fiction in order to advance the Crown case. This was said to be eloquent evidence of his malice as a prosecutor. I will deal with that submission later.

5. [659]

   In the Sufficiency of Evidence Report Det Insp Jacob went on to contend that, coupled with significant inconsistencies between the plaintiff’s accounts to police, the plaintiff had made statements about a range of matters which were deliberate lies told with a consciousness of guilt and fear of the truth within the scope of Edwards v R (1993) 178 CLR 193); [1993] HCA 63. The various lies falling within the scope of the “Edwards Case” (so-called), coupled with other inconsistencies in the plaintiff’s various accounts which Det Insp Jacob identified and highlighted throughout the body of the Report, were an important feature of what Det Insp Jacob concluded was a “cogent circumstantial prima facie case” [333] against the plaintiff for Ms Byrne’s murder.

6. [660]

   The plaintiff’s various accounts to the police and to others concerning his movements and his observations of Ms Byrne on 7 June 1995; the circumstances in which he claimed to be at the Gap in the early morning of 8 June 1995 within an hour of the fishermen hearing the woman’s scream, and how he conducted himself during the search for Ms Byrne at that location both before and after the involvement of the police, were also matters amongst a range of matters arising from the plaintiff’s accounts of his movements and his dealings with Ms Byrne and others that were given significant weight by Det Insp Jacob in support of his conclusion that the brief of evidence, taken as a whole, supported a charge of murder.

7. [661]

   The detail of the plaintiff’s successive accounts to police and the media from 1995 to 2011 concerning relevant events before 7 June 1995 on that day and into the early hours of the following day, and in the days and weeks that followed her death, were also given prominence by Mr Tedeschi in submitting to the jury that they would reject the plaintiff’s case that he had no knowledge of the circumstances in which Ms Byrne died. Although Mr Tedeschi’s advice to the Director was not in evidence in the proceedings, privilege having been claimed over its contents, it is reasonable to assume Mr Tedeschi also relied upon this same body of material in rendering his advice to the Director that the prosecution of the plaintiff for murder was warranted and that a charge should be laid given Mr Tedeschi’s wholesale adoption in his submissions to the jury of many of the criticisms of the plaintiff’s various accounts that had been analysed and commented upon by Det Insp Jacob in the Sufficiency of Evidence Report, many of which Det Insp Jacob described as lies told from a consciousness of guilt.

8. [662]

   Of particular significance in making out the Crown case were what were said by Mr Tedeschi to be the plaintiff’s repeated lies about his whereabouts on the afternoon of 7 June 1995 and later that evening between 8pm and 11:30pm, and what was said to be the utter incredulity of his explanation for being at Watsons Bay and locating Ms Byrne's car at midnight, being in part led to that area by “Caroline’s spirit”. [334]

9. [663]

   It was fundamental to the Crown case that upon the whole of the evidence adduced at trial the jury would reject the plaintiff’s account that he lunched alone at a Bondi café at 4pm after his earlier lunch arrangements at Ditto’s restaurant were interrupted by Mr Rivkin requiring him to drive Mr Richardson into the city, and that they would also reject his account that he was asleep alone in front of the television at the Macleay Street apartment between about 7pm and midnight after having arrived home from work to find Ms Byrne not at home. Instead the jury were invited to find (as Det Insp Jacob had concluded in the Sufficiency of Evidence Report) that the plaintiff was with Ms Byrne at Watsons Bay in the afternoon between 1pm and 3pm (as observed by Messrs Melbourne and Martin) and then again later that evening from at least 8pm (as observed by Mr Doherty) before he threw her from the cliffs to her death at about 11:30pm.

10. [664]

    Related to what Mr Tedeschi submitted were the plaintiff’s lies about his movements on the afternoon and evening of 7 June 1995 was Mr Tedeschi’s allied submission that the plaintiff staged the claim to Ms Byrne’s father and brother that Ms Byrne was missing, and falsified the report of Ms Byrne as a missing person to Rose Bay police later that morning. Further, Mr Tedeschi submitted that the plaintiff falsely asserted a belief that Ms Byrne had committed suicide by masquerading as a concerned partner during the search at the Gap under police supervision. Mr Tedeschi also invited the jury to reject the plaintiff’s claims to the police, and to various of his friends and Ms Byrne's friends, that he loved her and grieved for her believing she had taken her own life, by advancing the further submission that the plaintiff was in truth a possessive and psychologically abusive partner who was motivated to kill Ms Byrne having learnt that she was intending to leave him.

11. [665]

    None of what the Crown submitted were lies told by the plaintiff were left to the jury by the trial judge as evidence from which they could infer a consciousness of guilt. His Honour directed the jury in accordance with Zoneff v The Queen (2000) 200 CLR 234; [2000] HCA 28 that any lies the jury considered the plaintiff had told could only be used by them to assess the truthfulness of the accounts given by the plaintiff. His Honour gave the following direction:

12. [666]

    So far as these proceedings are concerned, his Honour’s directions are not under review. What is relevant insofar as the liability of Det Insp Jacob as a prosecutor is concerned (assuming that status is to be attributed to him as a matter of law) is the extent to which he relied upon what he considered (from a non-legal perspective) were the plaintiff’s deliberate lies told from a consciousness of guilt in support of his concluded view that the evidence supported a prosecution of the plaintiff for murder, and whether that was an approach fairly open to him.

13. [667]

    It is not known the extent to which Mr Tedeschi considered that it was open to him to rely upon consciousness of guilt lies when he advised Mr Cowdery that criminal proceedings for murder should be instituted. I note that in his maintenance of the case to verdict in his closing submissions, only two lies were isolated by him as capable of being considered by the jury as lies told from the consciousness of guilt, neither of which were ultimately left by the trial judge to the jury for their use in that way. [336]

14. [668]

    That said, it is obvious from the content of the Sufficiency of Evidence Report and the evidence of both Det Insp Jacob and Mr Tedeschi in these proceedings that what they considered were capable of being proved to be lies figured prominently in the judgment made by each of them to initiate the criminal proceedings against the plaintiff. With differing degrees of emphasis both in Det Insp Jacob’s and Mr Tedeschi’s evidence in these proceedings, both in their sworn statements and in cross-examination, they depose to genuinely having the belief, having regard to all the evidence, that the plaintiff had told deliberate lies about his movements on 7 June 1995, his knowledge of Ms Byrne's movements on that day and the circumstances in which he came to be at the Gap after midnight allegedly looking for Ms Byrne. One of the fields of enquiry necessarily engaged in these proceedings is whether I accept their evidence and, further, even were I to do so, whether assessed objectively, that was a conclusion reasonably open to them. If it were not, that is, if those aspects of the plaintiff’s account alleged to be lies were not susceptible to being considered by a prosecutor to have been deliberate falsehoods because the explanation for his conduct and his account of his movements was not only reasonably possible but demonstrably so, then that may assist the plaintiff in establishing that he was prosecuted in the absence of reasonable and probable cause. It must follow that the inverse is also true.

15. [669]

    However, even were I satisfied that it was open to each of the two putative prosecutors to regard the plaintiff’s accounts of his movements during the afternoon of 7 June 1995, and his conduct upon finding Ms Byrne missing later that night as so untenable as to amount to lies, it does not follow that would be fatal to the plaintiff’s case were the evidence as to the manner and cause of Ms Byrne’s death such that suicide could not be positively discounted as a reasonable possibility or if the manner of her death was not susceptible to proof as a homicide on the case the Crown advanced.

16. [670]

    There can be no doubt that the Crown case, as it was left to the jury, depended heavily on the jury being persuaded that the plaintiff’s account to police and others as to his knowledge of Ms Byrne’s whereabouts on 7 June 1995 was not credible. In his closing address, Mr Tedeschi spent considerable time developing the submission that the jury would readily conclude that the plaintiff had told deliberate lies about various aspects of the events of 7 June 1995. He summarised those submissions in the following way:

17. [671]

    The plaintiff submitted through his counsel in these proceedings that despite some inconsistencies in the various accounts he has given from the night of Ms Byrne's death to the last interview with police in 2011, a fair analysis of his accounts over of a period of years renders it broadly consistent and that the criticisms made by Det Insp Jacob and Mr Tedeschi (and by the defendant in its submissions referable to Schedule D attached to the defendant's submissions in these proceedings) are not sustainable.

18. [672]

    Mr McClintock submitted that even were the Court to find that it was possible that the plaintiff had not given a complete account of his movements and those of Ms Byrne on 7 June 1995, or that his conduct during the police search for her body on 8 June 1995 raises suspicions as to the extent of his knowledge as to how she died, a prudent and cautious prosecutor would not use a bare suspicion of guilt, and even less a suspect’s failure to reveal to police all that he or she may know about the matters leading to a person's death, as a substitute for evidence sufficient to initiate criminal proceedings for murder.

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

1. [673]

   As noted above, the third phase of the investigation under the rubric Strike Force Irondale commenced on 18 June 1998. In the Executive Summary to the Sufficiency of Evidence Report, Det Insp Jacob considered that although the investigation into the death of Ms Byrne had been conducted in broken phases between June 1998 and January 2004, it was nonetheless a “conscientious, concerted and extensive investigation” balanced out against the competing demands of Crime Agencies Command.

2. [674]

   The methodology which Det Insp Jacob adopted in the presentation of the Report was to refer to all materials generated during the first two phases of the investigation and the inquest, together with the information gathered during the course of Strike Force Irondale, in order to provide an overview of the entire investigation. The Executive Summary stipulated that the Report included reference to evidence of all relevant witnesses but with only salient portions of their evidence highlighted referable to the most significant issues as he saw them.

3. [675]

   The structure of the Sufficiency of Evidence Report was to identify the facts and circumstances leading to and surrounding Ms Byrne’s death (some facts were not in contention whilst others plainly were), accompanied by an analysis of that material to support what Det Insp Jacob considered, from his perspective as the officer in charge of the investigation, to be a strong prima facie case to support the presentation of an indictment against the plaintiff for murder.

4. [676]

   In the Executive Summary, Det Insp Jacob identified particular sections of the Report in addressing the hypothesis that Ms Byrne committed suicide, including a detailed examination of her background and the events preceding her death, including a detailed chronology of the events of Wednesday 7 June and Thursday 8 June 1995, at least to the extent that the events of those two days were able to be reliably reconstructed. In that connection reference was made to Telephone Analyst Charts and Telephone Timeline Charts for the period 5 to 8 June 1995, together with the recorded interviews with the plaintiff and other relevant witnesses, including a “run around” with Mr Byrne's father and her brother on 7 August 2003 at the Gap. A further document which was annexed to the Report and described as a Comparison Report was also identified. This report examined the various statements the plaintiff made to police, the Coroner, his associates and the media over the course of the investigation.

5. [677]

   Reference was also made to the evidence of A/Prof Cross. The first reference to any engagement of A/Prof Cross as an expert consultant during the currency of Strike Force Irondale appears in the Crime Agency Progress Reports (Ex 98). In the second of 48 progress reports signed by Det Insp Jacob, one of the proposed actions following the compilation of aerial photographs of the Watsons Bay area was to brief an expert “to re-examine the probability or not of the deceased falling to her death by accident”, a task which was to occur the following week.

6. [678]

   Successive Crime Agency reports between 12 April 1999 and 23 March 2003 did not refer further to the proposed involvement of A/Prof Cross. That is not to say that Strike Force Irondale was not proceeding with other enquiries despite it being noted in the reports that operational pressures and operational management decisions relating to the deployment of resources had seriously impacted upon the capacity of the Strike Force to fulfil its own prioritised list of further enquiries and follow-up enquiries.

7. [679]

   It was not until the thirteenth report (for the period ending 12 March 1999) that the question of briefing an expert was revisited, and only then in the context of Sgt Jubelin reporting that investigators had utilised the resources of the Photogrammetry Unit to map out the measurements of the Gap and that accurate measurements of the distance from the cliff face to where Ms Byrne’s body was located had been obtained. (I note that these measurements were taken referable to what became known as Hole B.) In the entry Det Insp Jacob went on to note that:

8. [680]

   It was put to Det Insp Jacob in cross-examination that by the end of 1999 the investigation by Strike Force Irondale had, apart from a number of peripheral issues, been completed, but that final completion had been obstructed and delayed because of resourcing issues. Det Insp Jacob disagreed. Although he accepted that there were competing priorities within State Crime Command during the currency of Strike Force Irondale, he said the investigation into Ms Byrne’s death continued for some years after 1999, inclusive of a lengthy interview with the plaintiff in July 2001. It was then put to him that the timing of that interview also reflected that the investigation was (by that date) “virtually complete”. [339] Again, Det Insp Jacob disagreed. He gave evidence that with the additional commitment of resources, particularly in 2003, the Strike Force was able to reinitiate enquiries and that considerable work was done throughout what he described as “the 2003 period”. He gave evidence that between 2001 and 2003 there were competing command issues and that it was necessary to “deprioritise” the investigation into Ms Byrne’s murder and attend to other priorities from time to time. He gave evidence that he was always subject to the directions of Senior Command in the allocation of resources, including the prioritisation of resources of one investigation over another. When asked if it was his decision or the decision at Senior Command level which resulted in a lacuna in the investigation between July 2001 and early 2003, he said:

9. [681]

   In cross-examination he maintained the firm position that in 2001, after the plaintiff was interviewed, he could not comfortably proceed to any concluded assessment of whether the evidence supported the plaintiff being charged with murder, absent finalising a number of outstanding enquiries.

10. [682]

    It would appear that an approach to A/Prof Cross was amongst those outstanding issues and, as has already been demonstrated from the detailed summary on Det Insp Jacob’s engagement with A/Prof Cross, that line of enquiry continued through to Det Insp Jacob’s submission of the Sufficiency of Evidence Report, first to Legal Branch in January 2004 and then to the ODPP, an engagement which extended thereafter into the early part of 2006 when a decision was made by the ODPP to charge the plaintiff with murder following Mr Tedeschi’s advice to Mr Cowdery that that should occur.

11. [683]

    On 16 January 2003, Det Insp Jacob requested permission from Senior Command to execute a “Supplementary Investigation Plan” to renew efforts to bring the investigation to a point of finality. The plan made two references to A/Prof Cross:

12. [684]

    On 12 March 2003, Commander Morgan requested information in relation to a number of issues identified in the Supplementary Investigation Plan, including the resources that might need to be dedicated to addressing each of those listed matters, and an indication as to when the investigation and an “assessment as to the sufficiency of the evidence for a prosecution or otherwise will be completed”. [342]

13. [685]

    Included amongst the matters to be attended to, and which were reported upon as underway in the following progress report, was the preparation of an ISRAPS three dimensional image of the Gap, which Det Snr Cst Tim Mealing was to obtain with the assistance of the Police Rescue Squad.

14. [686]

    In the progress report for the period ending 4 May 2003 the following entry is made:

15. [687]

    It would appear, having regard to the evidence in the proceedings from Det Insp Jacob, A/Prof Cross and others, that this entry reflects work done after contact was reinitiated with A/Prof Cross in September 2003. There is no explanation in the evidence for why the entry appears in a progress report of May 2003.

16. [688]

    A list of outstanding jobs to be completed by Strike Force Irondale as at 30 August 2003 (apparently requested by Senior Command in seeking an update on the progress on the investigation) included the following entry:

17. [689]

    In the progress report for the period ending 26 September 2003, the following was reported:

18. [690]

    In the final progress report for the period ending 30 November 2003, Det Insp Jacob reported as follows:

19. [691]

    One of the issues the subject of detailed attention by Strike Force Irondale was what was known about Ms Byrne from about 1989 through to her death in 1995 that might shed light on her death. Underpinning that analysis, Det Insp Jacob reported that on the basis of his interviews with her work colleagues and family friends she was consistently described as:

20. [692]

    What follows is a summary of what was set out in much greater detail in the Report.

21. [693]

    In 1989 Ms Byrne began a modelling career with Gordon Charles Modelling Agency. [348] In 1991 she commenced teaching part time with June Dally-Watkins, having been introduced to that organisation by Mr Charles, the proprietor of the modelling agency. [349]

22. [694]

    In March 1991, Ms Byrne’s mother committed suicide by taking an overdose of prescription tablets after complications that resulted from cosmetic surgery. Mrs Byrne’s death had a profound impact upon all members of her family, including Ms Byrne, her youngest daughter. [350]

23. [695]

    In January 1992 Ms Byrne met the plaintiff at a city gymnasium. A friendship developed. Ms Byrne was in an intimate relationship with Andrew Blanchette at that time which continued throughout 1992. [351]

24. [696]

    On 27 April 1992, Ms Byrne took an overdose of prescription sleeping tablets. She was living with her father and her sister at that time. She was found by her father, conscious, in a half-full bath when he returned home to have lunch with her. Ms Byrne had just completed her university studies and it was not unusual for her to be home during the day. [352] Mr Byrne contacted triple-0 and Ms Byrne was transported to Sydney Hospital by ambulance. When her father arrived a couple of hours later she apologised to him and, according to a statement taken from Mr Byrne in December 1999, she told him:

25. [697]

    Mr Byrne also told police that later that day Ms Byrne said to him and to her brother and sister:

26. [698]

    Following her admission to hospital Ms Byrne was referred to Dr Alexandra Vrjosseck, a consultant psychiatrist. In the referral letter, the referring doctor indicated:

27. [699]

    Ms Byrne met with Dr Vrjosseck on seven occasions between 29 April 1992 and 27 July 1992. [356] In Dr Vrjosseck’s report (also obtained by Strike Force Irondale in December 1999) she said as follows:

28. [700]

    On her last consultation with Dr Vrjosseck in July 1992, Ms Byrne was reportedly formulating plans for her future with the support of her family. [358]

29. [701]

    In December 1992 Ms Byrne commenced a relationship with the plaintiff and took up residence with him in an apartment in Potts Point shortly thereafter. [359] The plaintiff told police in his 1996 interview that within three weeks he asked Ms Byrne to marry him, and she agreed. [360]

30. [702]

    In September 1993 the plaintiff and Ms Byrne had a “break” in their relationship for approximately three months, during which time Ms Byrne had a relationship with Adam Baczynski. She reportedly told her father that she saw no future with the plaintiff. He reported that she said: “He doesn’t work. He just lays in bed until lunch time every day”. [361]

31. [703]

    While the plaintiff’s relationship with Ms Byrne was in abeyance, the plaintiff commenced to work as a driver for Mr Rivkin.

32. [704]

    In November 1993 Ms Byrne ended her relationship with Mr Baczynski and resumed her relationship with the plaintiff.

33. [705]

    On Christmas Day 1993 the plaintiff took a telephone call from Mr Rivkin, after which he reported to Ms Byrne, and those of her family who were enjoying Christmas dinner that Mr Rivkin’s “printing factory” [362] had been destroyed by fire and that it was necessary for the plaintiff to collect Mr Rivkin from Sydney Kingsford Smith Airport. Mr Byrne also attributed to the plaintiff knowledge that the fire at the printing factory “was a set up” [363] and that the increase in the share price was attributable to the insurance company paying out on an insurance policy.

34. [706]

    That information was derived from Mr Byrne’s statement to Strike Force Irondale in October 1999, as was much of the information available to the investigation concerning the plaintiff’s relationship with Mr Rivkin, including the plaintiff’s claims that Mr Rivkin was intending to pay him “huge bonuses”, apparently consistent with the way Mr Rivkin had benefitted George Freris, another person he employed. According to Mr Byrne, his daughter had told him the plaintiff was jealous of the attention that was being lavished on Mr Freris by Mr Rivkin, the plaintiff having had the expectation that he would be treated in a similar way and that he was disappointed he was not. [364]

35. [707]

    From September 1994, arrangements were in place for Ms Byrne and the plaintiff to purchase a home unit with the financial support of her father, on condition that he acquire a registered first mortgage over the property. Unbeknownst to Mr Byrne, Mr Rivkin was also contributing towards the purchase of the unit (at least as represented by the plaintiff) which was the source of tension between Mr Byrne and his daughter, on the one hand, and the plaintiff and Mr Rivkin on the other hand as to who would have priority as registered mortgagee on the certificate of title. [365]

36. [708]

    Between January 1995 and March 1995 Ms Byrne visited the Gap with a classmate, Ms Whelan. She told Ms Whelan that the Gap was a place where she and the plaintiff went for picnics. [366] Ms Whelan also recalled an occasion when she was upset because of a breakup with her boyfriend. When they were close to the fence looking out to the ocean, Ms Byrne said to her that if she was thinking about suicide, “it was not the answer … there is always someone [you] can talk to”. [367]

37. [709]

    In April 1995, Mr Byrne told investigators that Ms Byrne had telephoned him to discuss what she described as the pressure the plaintiff was applying to encourage her to marry him. Mr Byrne said his daughter said:

38. [710]

    She reported that the plaintiff wanted her to stay home (that is, not work) and that he would financially support her. She was adamant that she did not want to cease work and that she was “very happy with [her] life the way it is”. [369]

39. [711]

    On 7 May 1995 the plaintiff accompanied Mr Rivkin to Zurich and London, returning to Australia on 27 May 1995. [370]

40. [712]

    Earlier that month Ms Byrne discussed with her father a forthcoming business trip to Armidale and Tamworth and her excitement at the prospect of the assignment. It was during this period that Mr Byrne told police that, to his observation, everything in his daughter’s life appeared to be going well. He said:

41. [713]

    On 25 May 1995, Ms Carel Clifford raised with Ms Byrne the prospects of her filling a vacant position as School Course Consultant. The following day Ms Byrne accepted that appointment. [372]

42. [714]

    Four days later on 29 May 1995, Ms Byrne told Ms June Clifford that she was excited about taking up the full-time position as School Course Consultant with its assured income, acknowledging that her modelling engagements would not sustain her in the long term, and that an increased income was important because she and the plaintiff had just moved into a new apartment. [373]

43. [715]

    Ms Clifford expressed surprise to hear from the plaintiff after Ms Byrne’s death that Caroline “hated her job and that the job had contributed to her becoming depressed”. [374] She said:

44. [716]

    Ms Clifford went on to express surprise at why Ms Byrne would have committed suicide. She said:

45. [717]

    Ms Byrne commenced full-time employment with June Dally-Watkins Pty Ltd as a School Course Consultant on 30 May 1995. [377]

46. [718]

    On 31 May 1995, the plaintiff and Mr Rivkin were served with a notice requiring them to attend at the Australian Securities Commission on 6 June 1995. [378] The inquiry by the Australian Securities Commission related to what was suspected to be an irregular share buyback in Offset Alpine Ltd (Mr Rivkin’s printing company) in December 1994 and February 1995. Mr Rivkin was a major shareholder of Offset Alpine and exercised dominant control over the company. [379]

47. [719]

    The service of the notice and the scheduled examination was identified by Det Insp Jacob as one of what he described as “a constellation of issues” [380] occurring in Ms Byrne’s life leading up to her death and, in his view, the likely cause of her reported feelings of depression. The extent to which that issue spawned a broader alleged concern that Ms Byrne may be in possession of information about Mr Rivkin which the plaintiff was concerned might adversely impact upon his relationship with Mr Rivkin if it were disclosed was not addressed or developed by Det Insp Jacob in the Sufficiency of Evidence Report. It did, however, form part of what the Crown relied upon at the plaintiff’s trial as motivating the plaintiff to kill Ms Byrne. As noted already, it is part of the plaintiff’s case, in these proceedings, that it was not open to Mr Tedeschi to advance that submission, or indeed the related and more florid submission that the plaintiff had “insider trading information” that he had informed Ms Byrne (amongst others) about and that Mr Rivkin would have been horrified to learn were he told about it.

48. [720]

    I am conscious that it was the view of the Court of Criminal Appeal that the Crown case on motive, as it related generally to Mr Rivkin and his commercial activities, was “a speculative smear”, [381] the Court having held that:

49. [721]

    As I have sought to emphasise, while I am conscious of the views of the Court of Criminal Appeal in respect of a range of matters the subject of detailed consideration in that Court upholding the various grounds of appeal, I am not bound by them since it is incumbent on this Court to also give consideration to Mr Tedeschi’s evidence where he maintained his right to advance the submission that the plaintiff was motivated to kill Ms Byrne, including by reason of the plaintiff’s relationship with Mr Rivkin, a position the defendant submitted was entirely defensible.

50. [722]

    The further question is whether I am satisfied, despite Mr Tedeschi’s evidence to the contrary, that he knew he had an insufficient factual foundation to invite inferences to be drawn to support the submission on motive he advanced. Were I to come to that conclusion, that would unquestionably amount to prosecutorial misconduct (consistent with the finding of the Court of Criminal Appeal), thereby advancing the plaintiff’s case that he was prosecuted by Mr Tedeschi maliciously and without reasonable and probable cause. I will return to consider that question.

51. [723]

    On Wednesday 31 May 1995, Mr Byrne shared with his daughter his concerns about his son Peter, who was in China, not having made contact with the family for some time. Ms Byrne was with her father on that occasion because Mr Byrne had required her to execute a number of documents, the effect of which was to secure Ms Byrne’s financial future. Under that arrangement she was permitted to access funds at any time. [383]

52. [724]

    Mr Byrne said that although his daughter looked “marvellous”, [384] she complained of a head cold for which she was taking medication. She told her father that she was missing modelling. He suggested that she should talk to the modelling agency about resuming a casual modelling arrangement with them whilst retaining her work with June Dally-Watkins. This was coincident with a conversation Ms Byrne had with others where she indicated she was happy with her new career prospects but her primary enjoyment was full-time modelling. Her friends attested to her showing no indication to them that she was depressed. [385]

53. [725]

    On Friday 2 June 1995, Ms Byrne spoke to her father who reported that after talking to her modelling agent, Mr Charles, she was advised “not to close the door” [386] on her modelling career and that there was contractual work that he could find for her. She expressed relief to her father that she had resolved the conflict and that she would inform Ms Clifford that she wanted to revert to casual work in order to maintain her modelling career. Later that day she told her father that she had not managed to make contact with Ms Clifford, but that she would fulfil her forthcoming work assignments and inform Ms Clifford of her decision when she (Ms Byrne) was next in the office on Thursday, 8 June 2018. [387]

54. [726]

    On Saturday 3 June 1995, Ms Byrne worked and was reported by a colleague as being in good spirits for someone with a cold. She also said she was enjoying her new position at the June Dally-Watkins school and was looking forward to her assignments the following week. [388] She spoke to two of her friends that day, neither of whom reported any indication that she appeared upset, although they said she sounded tired.

55. [727]

    On the evening of 3 June 1995, Ms Byrne, the plaintiff and the plaintiff’s sister had dinner with the plaintiff’s mother where it was reported by them that Ms Byrne was chatty and engaging in conversations about her pending school assignments. [389]

56. [728]

    On Monday 5 June 1995, Ms Byrne was relieved of work duties because she had worked the previous Saturday and because she was due to attend a professional engagement at Pymble Ladies College that evening. She spoke to her father that morning and reported to him that she was feeling “a lot better” [390] after having had a restful Sunday. She also told her father she had been trying to contact her brother who she learned had arrived safely in Australia, but that he had not answered his telephone. She was informed by her father that he had not returned her calls because he was “jet lagged”. [391]

57. [729]

    At 10am on 5 June, Ms Byrne attended Dr Pan’s surgery on self-referral. In short, Dr Pan referred her to Dr Sippe the following day which did not suit Ms Byrne because of work commitments, so an arrangement was made for an appointment on 7 June at 4:45pm. Dr Pan offered a medical certificate to relieve Ms Byrne of her work commitments, which Ms Byrne declined. [392]

58. [730]

    At 3pm that day, Ms Byrne called her father for help in providing her with directions to her assignment at Parklea the following day. She did not report to her father that she had seen Dr Pan that morning, or that she had been referred to a psychiatrist. She discussed generally the ongoing issue of how to maintain her modelling career and her work for Ms Clifford. In that conversation she reaffirmed her commitment to telling Ms Clifford that she saw a future with the June Dally-Watkins school but wanted to maintain her modelling in the interim. [393] She told her father:

59. [731]

    This was the last occasion that Mr Byrne spoke to his daughter.

60. [732]

    At 5pm, Ms Carel Clifford saw Ms Byrne at the office in the process of her collecting display equipment for use that evening. Ms Clifford took the opportunity to give Ms Byrne a pay cheque. She observed that Ms Byrne “looked great” but was not “smiley and chatty” which Ms Clifford attributed to her cold. [395]

61. [733]

    Between 6pm and 9pm, Ms Byrne attended a Career Market at Pymble Ladies’ College on behalf of June Dally-Watkins as a Course Consultant. [396]

62. [734]

    At 9am the same day Mr Wood and Mr Rivkin appeared at the Australian Securities Commission. [397]

63. [735]

    On Tuesday 6 June 1995, Ms Byrne commenced work at 9am, the first day of a three day course at Parklea. A colleague with whom she worked that day said that she “seemed to love the work that she was doing” [398] and did not seem to be doing things any differently from when he had spoken with her four days earlier. [399] Ms Byrne completed her work at Parklea at 2pm. [400]

64. [736]

    At 3:39pm Ms Byrne used a debit card at a petrol station in Rose Bay. [401] She failed to attend a modelling appointment at 5pm that afternoon, having failed to contact or inform the modelling agency that she would not be in attendance. [402]

65. [737]

    At 7:26pm Ms Byrne’s mobile phone was used to place a call to her home telephone number, followed by a call to the plaintiff’s mobile telephone number. At 7:49pm Ms Byrne’s mobile telephone was used to place a further call to her home telephone number. [403]

66. [738]

    At 8pm the plaintiff contacted Ms Clifford by telephone and informed her that Ms Byrne was unwell and would not be at work the following day. The plaintiff told police that Ms Byrne asked him to ask a doctor friend for a medical certificate but the doctor “couldn’t do it”. [404] At 8:30pm the plaintiff placed a further telephone call to Carel Clifford, leaving a message on Ms Clifford’s answering machine advising that Ms Byrne was sick and would not be returning to work. [405]

67. [739]

    At 9:10pm Ms Clifford placed a telephone call to the plaintiff to enquire about Ms Byrne’s health. The plaintiff informed her that Ms Byrne was going to see a specialist the following day and that he would advise her of the outcome. [406] Ms Byrne did not speak to Ms Clifford, and Ms Clifford gave no evidence of being aware that Ms Byrne was within earshot of the telephone conversations she had with the plaintiff.

68. [740]

    The plaintiff told police that from that evening through to the following morning Ms Byrne was very “clingy”, [407] that they discussed taking a trip the following week and that she was pleased at the prospect, and that he instructed her not to answer the phone or take any calls the following day.

69. [741]

    It is useful to set out a chronological overview of the events of Wednesday 7 June 1995 through to the early hours of Thursday 8 June 1995 when police become involved upon Ms Byrne being reported as a missing person to Rose Bay Police. The overview does not differentiate between the plaintiff’s account of these events and the evidence of other witnesses; neither does it purport to cover the entirety of the available evidence or its comprehensive review by Det Insp Jacob. It does, however, include what Det Insp Jacob knew of the plaintiff’s actual movements such as they were able to be discerned from telephone records.

70. [742]

    The plaintiff told police he left for work on the morning of 7 June 1995 after kissing Ms Byrne on the forehead and saying that he would see her at lunchtime. [408] It seems that there is no evidence as to what his duties were that morning.

71. [743]

    Independent of the plaintiff’s account to police of his movements throughout the day, the following is supported by statements from various witnesses:

    1. (1)

       The plaintiff was at Ditto’s Restaurant at Darlinghurst from about 1:15pm for about 30 minutes, having arranged to meet Ms Samartis and Mr Cochrane for lunch. [409] He left without eating, having apparently received a telephone call from Ms Byrne. [410]

    2. (2)

       He attended at Ultimo “at some point between 1:00pm and 3:00pm” [411] to deliver a wedding present for a friend.

    3. (3)

       He collected one of Mr Rivkin’s lunching companions from Alife restaurant in Stanley Street in East Sydney and drove them into the city. [412] The plaintiff identified that person as Graham Richardson. [413] While there is evidence that Mr Rivkin ate at the Alife restaurant that day – there being a record of the same on his American Express card – Mr Richardson’s diary indicates that he ate lunch at a restaurant in a city hotel with another person. The person with whom he lunched had an expense account which identified a lunch at that restaurant on that date. [414]

72. [744]

    At about 1pm, on the plaintiff’s account, he returned home to find Ms Byrne asleep in bed. She woke but declined lunch, and said she wanted to keep sleeping. [415]

73. [745]

    At about 1pm, Mr Martin and Mr Melbourne were at the Gap Restaurant at Watsons Bay (a business owned and operated by them) when they saw three people who they later describe and identified as Ms Byrne, the plaintiff, and another man in Robertson Park. [416]

74. [746]

    Between 2:30pm and 3pm, the plaintiff says that he lunched at the Lamrock Café at Bondi. [417] There were no records to confirm that occurred. [418]

75. [747]

    At about 3pm, Mr Melbourne saw the same three people in the vicinity of Clovelly and Military Road and Watsons Bay. [419]

76. [748]

    At 3:09pm, the plaintiff’s mobile telephone placed a call to City Golf. [420]

77. [749]

    At 3:32pm, Ms Byrne’s Westpac Debit card was used to purchase petrol and a confectionary at the Caltex Service Station, Oxford St, Darlinghurst. Thirteen minutes later the same debit card is used to withdraw $50 from a Westpac Bank ATM at Vaucluse. [421]

78. [750]

    At 3:37pm, a telephone call was placed from the plaintiff’s mobile telephone to Mr Rivkin’s home telephone. [422]

79. [751]

    At 3:56pm, the plaintiff placed a call to Patterson Downes Pty Limited Accountants. [423]

80. [752]

    At about 4pm, Mr Peter Byrne telephoned Ms Byrne and left a message on the home answering machine for her to contact him at their father’s home at The Connaught. [424] In the view of the investigators, that message was significant for two reasons: first, Peter Byrne had not been in contact with his family whilst travelling to China which had given rise to some concern for his welfare. He returned from China some days earlier and Ms Byrne was reportedly looking forward to meeting up with him that evening. [425] She did not respond to the answering machine message. Secondly, the message was left on the answering machine at the apartment such that if the plaintiff had listened to it he would have concluded that Ms Byrne might well have been visiting with her brother and he may not have taken the step of borrowing a car to search for her at the Gap when he said he woke at midnight and she was not at home. [426]

81. [753]

    Mr Byrne gave an account that on the morning of 8 June 1995, the plaintiff told him that he had received Peter Byrne’s message when he got home from work. [427] When interviewed in 2001, the plaintiff claims to have had no recollection of having received any message and said he rarely checks his telephone answering machine. [428]

82. [754]

    At 4:04pm, the plaintiff used his mobile telephone to call Mr Rivkin’s office. [429]

83. [755]

    At 4:30pm, Ms Byrne failed to attend her appointment with Dr Sippe as arranged by Dr Pan, or to make contact with either of them. [430]

84. [756]

    At 5:14pm, a message was diverted from the plaintiff’s mobile telephone to his pager from Mr Rivkin requesting that he and Gary Redding attend at “The Sanctuary” – an apartment in Crown Street, East Sydney (it would appear that George Freris was also in attendance). [431] At 5:24pm the plaintiff called a telephone registered to the Rivkin Group but used by Mr Redding. [432] Mr Rivkin gave evidence that at about 5:30pm the plaintiff arrived at “The Sanctuary” responsive to his direction. [433]

85. [757]

    Between 5pm and 6pm, Mr Melbourne saw a green two-door Bentley driving north through Watsons Bay, [434] identified as a Bentley Continental R by Mr Martin, who also saw the vehicle. [435] Mr Martin identified himself as a “car buff”. [436] Det Insp Jacob also emphasised in the Sufficiency of Evidence Report that whilst initially this vehicle was believed to belong to Mr Rivkin (as he owned a “green Bentley”), this was positively discounted in the course of further investigation by Strike Force Irondale because Mr Rivkin owned a distinctive four-door Bentley. [437] (At trial this remained in contention. The way Mr Tedeschi dealt with it in addresses was one of the particulars alleged by the plaintiff to constitute malice, as to which see later at [927]).

86. [758]

    At 5:48pm, the plaintiff’s mobile telephone made contact with another mobile telephone used by Mr Rivkin or his associates. [438]

87. [759]

    In the Sufficiency of Evidence Report, Det Insp Jacob accepted that the phone records indicated that the plaintiff was likely to have conveyed Mr Redding to “The Sanctuary” in response to the pager message he received from Mr Rivkin at 5:14pm. [439] He emphasised that investigators did not rely on these telephone calls in furtherance of the case against the plaintiff. [440] He noted, however, that the plaintiff did not use his mobile telephone after 5:48pm on 7 June 1995 until 4:44am the following day. [441] Det Insp Jacob emphasised that upon arriving home from work to find Ms Byrne not at home, the plaintiff did not attempt to locate her on her mobile telephone and when he woke to find Ms Byrne not at home he did not use his mobile phone, neither did he use it whilst allegedly searching for her.

88. [760]

    At about 6pm, Mr Martin and Mr Melbourne saw Ms Byrne’s car parked in Gap Lane behind the Gap Restaurant. [442] There is no evidence as to how long it had been parked in that location.

89. [761]

    Between 6:30pm and 8pm, Mr Byrne attempted to contact Ms Byrne on her mobile telephone, and the plaintiff on his mobile telephone. Neither telephone was answered. Mr Byrne also telephoned their apartment and, although the answering machine “cut in”, he did not leave a message. [443]

90. [762]

    At 6:45pm, the plaintiff arrived home to find Ms Byrne not at home. He told police he then fell asleep sometime before the end of the 7pm ABC news broadcast [444] and did not wake again until either 11:30pm or 12:40am to find that Ms Byrne had not returned home. [445]

91. [763]

    At 7:40pm, the plaintiff’s pager service received a message to “please phone Damien [Rivkin] at home”. [446] The plaintiff did not respond to that request.

92. [764]

    At about 8pm, Mr Doherty, whose apartment overlooked Military Road, observed three people on the roadway beneath his window after his attention was drawn by a girl’s voice which he described as “obviously distressed”. [447] When he first observed the girl, she was in the middle of the road. One of the two men with her walked toward her after which she sat in the gutter. Mr Doherty could not make out any of the words which were being exchanged between the girl and that man, but he did form the view that the conversation was heated and the two people were “quite obviously arguing”. [448]

93. [765]

    At 8:33pm, Mr Rivkin sent the plaintiff a pager message. The plaintiff did not respond to that message. [449]

94. [766]

    Between about 8:30pm and 9:30pm, Mr Doherty saw the same three people walking towards the Gap. The third man, who had earlier been sitting distant on a brick fence, was standing on one side of the girl and the man she was arguing with on her other side. [450]

95. [767]

    At about 10:30pm, Mr Doherty heard what he regarded as a continuation of the argument he had witnessed underneath his window, which he said then continued “on and off” [451] for about an hour. He described the area of the Gap where this argument was issuing from as “near the pathway to the Simon University”. [452]

96. [768]

    At about 10:30pm, two fishermen, Mr Wano and Mr Brunetta, parked their car in Gap Lane. They noticed Ms Byrne’s parked car. [453] At about 11pm Mr Melbourne saw her car parked in the same position as he had earlier seen it parked that evening. [454]

97. [769]

    At about 11:30pm Mr Doherty heard a scream, [455] largely coincident with the time Mr Wano and Mr Brunetta also heard a scream. [456]

98. [770]

    Mr Wano described the scream as having a “scared tone” [457] and “last[ing] for a couple of seconds”. [458] He described the scream as “so unusual” that he asked Mr Brunetta “what was that?”. [459] Mr Brunetta described the scream as having gone “for a few seconds”, [460] and “sound[ing] like she was panicking and in trouble”. [461] As to the area from which the scream originated, Mr Brunetta said:

99. [771]

    The plaintiff told police that upon waking at his apartment to find Ms Byrne not at home (he appoints various times between 11:30pm and 12:40am when that occurred [463] ) he went in search of her, ultimately arriving at Watsons Bay where, after seeing her car parked in Gap Lane, he went searching for her along the cliffs. [464]

100. [772]

     About an hour after hearing the scream, Mr Brunetta heard a male voice screaming out “Caroline, Caroline” [465] and soon after saw the plaintiff approaching them asking whether they had seen her. Mr Brunetta did not mention having heard the scream. [466]

101. [773]

     Between 12:30am and 1:30am, Mr Peter Byrne received a telephone call from the plaintiff that Ms Byrne was missing and that he had found her car at the Gap. The plaintiff said he would collect them from their home. [467] Shortly after 1:30am, Mr Brunetta and Mr Wano saw the three men approach them. It was then that they reported having heard the scream. [468]

102. [774]

     What follows is a summary of the detailed analysis given by Det Insp Jacob to a number of discrete issues emerging from the chronology of events set out above. In the Sufficiency of Evidence Report they are considered under a number of subheadings, as follows:

     1. (1)

        Ms Byrne’s movements and the plaintiff’s movements on the afternoon and evening of 7 June 1995; [469]

     2. (2)

        The plaintiff’s movements after 6:30pm and the plaintiff sleeping through to 11:30pm/12:40am; [470]

     3. (3)

        The plaintiff leaves a note for Ms Byrne prior to leaving to “search” for her; [471]

     4. (4)

        The plaintiff collects a car to “search” for Ms Byrne via The Connaught Apartments; [472]

     5. (5)

        The plaintiff searches for Ms Byrne; [473]

     6. (6)

        The plaintiff is drawn to the Gap by spiritual communications; [474]

     7. (7)

        The plaintiff locates the Suzuki Vitara in Gap Lane; [475]

     8. (8)

        The plaintiff contacts Tony and Peter Byrne and their attendance at the Gap; [476]

     9. (9)

        The examination of the Suzuki Vitara; [477]

     10. (10)

         The search of the Gap before the involvement of police; [478]

     11. (11)

         The “sighting” of Ms Byrne by the plaintiff before the arrival of police; [479]

     12. (12)

         The “sightings” of Ms Byrne after the arrival of police.

103. [775]

     The content under each subheading was the subject of considerable focus in the way the Crown case was structured. Mr Tedeschi’s treatment of some of them was the subject of criticism on the appeal and some are said in these proceedings to be evidence of malice. For example, (11) and (12) above, which became styled by Mr Tedeschi at trial as “the killer point” [480] were said by the plaintiff to include material misstatements of the evidence of the plaintiff’s purported sightings of Ms Byrne at the base of the cliff. The plaintiff also contends that Mr Tedeschi deliberately misstated the effect of the evidence as the circumstances in which the plaintiff collected the red utility to search for Ms Byrne (subheading (4) above). Considerable criticism is levelled both at Det Insp Jacob and at Mr Tedeschi for the weight they gave to the identification evidence considered in (1) above. I have already referred to the significance of this evidence to prove beyond reasonable doubt the plaintiff’s presence at the Gap at the time of Ms Byrne’s fatal descent.

104. [776]

     It is useful at this time to expand upon that evidence since it was in the form of a summary of the identification evidence which follows, that it was presented and considered by Det Insp Jacob and, it must be assumed, considered and assessed by Mr Tedeschi when he advised Mr Cowdery that a prosecution be commenced. It is not the plaintiff’s case that this evidence was materially different from the way the evidence fell in the course of the trial. It is the plaintiff’s case that the identification evidence was flawed from the outset.

105. [777]

     In the Executive Summary Det Insp Jacob described the effect of the identification evidence under the subheading "Sightings of Gordon Wood and Caroline Byrne at the Gap during the day” [481] in the following terms:

106. [778]

     He then said:

107. [779]

     Under the further subheading “Further sightings by witness Doherty”, Det Insp Jacob said as follows:

108. [780]

     In his statement of 9 July 1995, Mr Melbourne described noticing a “tall attractive girl, blonde hair, wearing a blue denim jacket which came to her hips and a pair of full-length tights” [485] standing on the top of the pathway to Robertson Park at Watsons Bay. He said she was “very striking in appearance” and “looked like a model”. [486] He said he wondered what she was doing “hanging around with the two guys”. He described one of the men as “tall, slim build, had medium length fair hair and he was wearing a brown coloured suede type of jacket”. The other male was described as having “dark long hair, of thin build, of dark complexion” [487] wearing black clothing and long black boots. Mr Melbourne said the three people were laughing and enjoying themselves. He said two hours later he saw the same three people as they stood around the corner of Clovelly and Military roads for a short time. He said they appeared to be in good spirits.

109. [781]

     In his statement of 9 July 1995, Mr Martin described noticing a young blonde girl approximately 20 years old with long blonde hair walking across Military Road, Watsons Bay, towards Robinson Park in the company of two men. He described the woman as wearing a blue denim jacket with light tights. He said one of the men with the woman was short with a thin build and dark hair, in his mid-20s wearing a black leather jacket that looked too big for him. He described the other person as “probably” 6’2 or 6’3’’ in height with “reddish or light coloured hair”, of slight build, “Australian appearance” [488] and wearing a dark anorak style jacket.

110. [782]

     It was clear from the statements of Mr Martin and Mr Melbourne of 9 July 1995 (even if it was not made patent in Cst Woods’ July 1995 statement to the Coroner) that in taking their statements Cst Woods showed each of them a single photograph of Ms Byrne. It was also clear that they told him that they had already been shown a different single photograph of the same woman who “looked similar” to the woman they had seen in the park.

111. [783]

     At par 5 of Mr Martin’s statement he said:

112. [784]

     At par 4 of Mr Melbourne’s July statement he said:

113. [785]

     However, neither Mr Martin nor Mr Melbourne made any mention in their statements to Cst Woods of 9 July 1995 of having been shown a photograph of the plaintiff some weeks later, apparently by the same group of women.

114. [786]

     In his statement of 19 August 1998, taken in the second phase of the police investigation, Cst Woods told the interviewing officer that June Clifford had told him in the course of one of many conversations he had had with her (and with Carel Clifford and Lisa Clifford as concerned friends of Ms Byrne), that she had attended a café at Watsons Bay on 16 June 1995 after having visited the area that day in order, as he expressed it, "to say good bye to Caroline in their own way". [491] He went on to say that Ms June Clifford told him:

115. [787]

     As noted above, at the time of her death Ms Byrne was employed as a School Course Consultant with June Dally-Watkins Pty Ltd, a company owned by Ms June Clifford. Cst Woods obtained a statement from Ms Carel Clifford, the General Manager of the company, on 26 June 1995. Her statement formed part of the coronial brief of evidence. She also gave evidence at the inquest. Her evidence was carefully considered by Det Insp Jacob in the Sufficiency of Evidence Report.

116. [788]

     In Cst Woods’ statement to the Coroner he made no reference to being aware that Ms June Clifford had spoken to Mr Melbourne and Mr Martin despite being aware, as he made clear in his statement of 19 August 1998, that he knew they had spoken on or about 16 July 1995, and despite being aware that she had shown them a single photograph of Ms Byrne with a view to seeing whether either of them had seen her at Watsons Bay at any time proximate to her death.

117. [789]

     He did report to the Coroner that he obtained statements from Mr Martin and Mr Melbourne on 9 July 1995, which he summarised as follows:

118. [790]

     Ms June Clifford first gave a statement to police about visiting the Bad Dog Café and speaking to Mr Martin and Mr Melbourne in May 1996, before the inquest. She said she also made notes of the meeting at that time. However, in neither her statement nor the notes was there any reference to having showed the plaintiff's photograph to Mr Melbourne and Mr Martin. Ms Kylie Watson who was with Ms Clifford on both occasions also supplied a statement to police in May 1996 during the second phase of the police investigation. She also gave evidence at the inquest 24 November 1997. In neither her statement nor her evidence did she make any reference to having visited and spoken with Mr Melbourne and Mr Martin a second time, or any reference to the plaintiff’s photograph being produced by Ms Clifford and shown to them

119. [791]

     On 25 November 1997, Mr Martin attended at the Glebe Coroner’s Court to give evidence. He arrived at the court at 9.30am and sat down in the foyer. There were about a dozen people in the foyer, including Ms Clifford. Whilst they acknowledged each other they did not speak. When he returned to the foyer after speaking briefly to Det Insp Wyver he saw a man in the foyer who he recognised as the taller of the two men who had been with Ms Byrne at Watsons Bay on the day that he saw her. He said that the man's hair was longer but he recognised him as being the same person. That man was the plaintiff. He described the man in the foyer as wearing light coloured pants, a Panama hat and sunglasses which he removed when he sat down. He said he did not see the man speaking with anyone. Upon recognising the man, Mr Martin spoke with Det Insp Wyver who took a formal statement from him.

120. [792]

     Det Insp Wyver gave evidence at the plaintiff's trial that when Mr Martin approached him after he had arrived at the Coroner’s Court to give evidence he was told to sit in the foyer and wait until he was called. He was not told to look out for anyone in particular. Det Insp Wyver gave evidence that Mr Martin then approached him and told him he had seen the taller of the two men that he had seen in June 1995, indicating the plaintiff. Det Insp Wyver gave evidence that following instructions from the Coroner and the police officer assisting the Coroner, a statement was taken from Mr Martin. After Mr Martin had given evidence about his identification of the plaintiff Det Insp Wyver instructed him not to discuss the matter with Mr Melbourne.

121. [793]

     Mr Melbourne attended the Glebe Coroner’s Court on 11 February 1998 to give his evidence. Prior to that date he had not seen or followed reports or photographs in the media relating to Ms Byrne's death. He was not aware that Mr Martin had attended to give evidence at the inquest the previous year or that he had seen the plaintiff.

122. [794]

     He said that whilst he was walking along Ross Street near Parramatta Road on the way to Court he was overtaken by a man and a middle aged woman. He recognised the man as the taller of the two men he had seen at Watsons Bay in 1995. At the trial he gave evidence that it was the same man in the photograph he had been shown by Ms Clifford.

123. [795]

     He said he followed the people into the Court and went straight to the office where he asked to speak to Det Insp Wyver. When he got to the office he saw Mr Martin. Mr Melbourne asked what he was doing there and was told they were not permitted to speak. Mr Melbourne then reported that he had just seen the taller of the two men with Ms Byrne at Watsons Bay.

124. [796]

     Mr Melbourne did not formerly advise police that before he saw the plaintiff at the Coroner’s Court in February 1998 he had seen a photograph of him in June 1995 until he supplied a further statement during the third phase of the investigation on 24 March 1999.

125. [797]

     Following an attempt to appoint the date on which Mr Melbourne made the alleged sighting of the plaintiff and Ms Byrne, Mr Melbourne said in his statement:

126. [798]

     Mr Martin, who also gave a further statement on 26 March 1999, did not say he had earlier seen a photograph of the plaintiff before he identified him at the Coroner’s Court. He did tell police the following:

127. [799]

     It was in the course of reviewing Mr Martin’s statement of 6 August 1996 (his second statement) that Det Insp Jacob noted that Mr Martin informed the interviewing officer that later in the afternoon of 7 June 1995 he saw a two door green Bentley motor vehicle drive past the Bad Dog Café. He said he believed he had seen the vehicle "around before because there are only a few Bentleys in Sydney, and two of them are this green model”. [496] He also added that he had only ever seen “the blonde longhaired female” [497] he had earlier described seeing at Watsons Bay on that day.

128. [800]

     What was ultimately confirmed as a misidentification by Mr Martin and Mr Melbourne of Mr Adam Leigh as the second man with the plaintiff and Ms Byrne on 7 June 1995 was the genesis of what was to become a relatively protracted course of enquiry by Strike Force Irondale as to what, if anything, Mr Leigh could say (or would be prepared to say) as to whether or not he was with the plaintiff and Ms Byrne that day. It is also clear from the multiple references to that line of enquiry in the Crime Scene Reports that the proposed interview with Mr Leigh was not able to be convened, although it appears that it was not known until late in the investigation that he was mentally ill. Although, as Det Insp Jacob acknowledged, the Strike Force had focused a significant amount of work upon efforts to locate and speak with Mr Leigh and that it was also not until late in the investigation that Det Insp Jacob was satisfied that Mr Leigh was definitely not at Watsons Bay on 7 June 1995. In the report Det Insp Jacob stated the firm view of the investigators that the second man at Watsons Bay on 7 June described by Mr Martin and Mr Melbourne was not Mr Leigh with the inevitable consequence that his identification by Mr Melbourne at the Coroner’s Court was “a case of mistaken identity”.

129. [801]

     In the Sufficiency of Evidence Report, Det Insp Jacob also identified Gary Redding as a witness/person of interest and possibly the second man in the area of the Gap with the plaintiff and Ms Byrne on the day of her death. After Mr Redding had been located in New Zealand, and after he had indicated a willingness to assist investigators, an overseas application was submitted to State Crime Command to utilise New Zealand police to collect information that it was thought Mr Redding would be able to provide. Though it is not entirely clear, the suggestion is that by the time New Zealand authorities had attended Mr Redding’s home, he had purchased a one-way ticket to England which increased police suspicions. Det Insp Jacob made it clear however that it was not only that conduct that supported the suggestion that he might be the second man. Mr Redding also had an association with the plaintiff, being one of the men with whom Mr Rivkin was in regular contact and a man who dressed in a manner similar to the person described by Mr Martin and Mr Melbourne (and Mr Doherty).

130. [802]

     Det Insp Jacob placed considerable weight on the evidence of Mr Melbourne and Mr Martin and their sightings of the plaintiff and Ms Byrne at Watsons Bay, however, as is clearly stated in the Sufficiency of Evidence Report, it is not the position of the Strike Force investigators that they were at Watsons Bay throughout the whole of the afternoon. [498] The investigators appear to accept that at various times the plaintiff left the area, attending to his work commitments. The investigators accepted that Ms Byrne also left the area in the afternoon as evidenced by her use of her Westpac debit card in the Eastern Suburbs between 3:32pm and 3:47pm. [499] However, in substantial reliance on the evidence of Mr Martin and Mr Melbourne, the position taken by the investigators was that the plaintiff was lying when he claimed not to have been at Watsons Bay at any time that afternoon.

131. [803]

     What is further maintained is that irrespective of the movements of each of the plaintiff and Ms Byrne from about 8pm they remained in the area of the Gap and were together until the scream was heard by the fisherman (and Mr Doherty) at about 11:30pm. [500] Det Insp Jacob acknowledged that Mr Doherty makes no actual identification of any of the three people he heard and saw arguing. [501] What is maintained is that his description of them is consistent with the description of the three people Mr Martin and Mr Melbourne described in one another’s company during the afternoon, in particular, the combination of two males and one female and the area in Watsons Bay where they are observed in one another’s company. Emphasis is also given to the fact that Ms Byrne was located deceased hours later and her car was found parked at Gap Lane.

132. [804]

     In his statement of 9 April 1998, Mr Doherty could be no more precise than to say that the incident he described witnessing from his window overlooking Military Road occurred one night at about 8pm in the winter months of 1995. He said his attention was first drawn to a girl’s voice moaning and in distress. He said it was a different moaning sound to people from “the pub” [502] who “quite frequently … come past drunk and carrying on”. [503] He said she was having an argument with someone.

133. [805]

     He said on looking from the window he saw a slim built man, about 6 foot tall, with short cropped fair to blond hair, wearing a dark jacket with either the collar up or wearing a scarf walk under the awning away from his window and towards the girl. The girl had her head down with her hands covering her face, such that he could not see her face. She was sitting in the gutter, leaning against a pole. He could not describe her other than to say she was wearing dark clothes.

134. [806]

     He described another man dressed in dark clothes about 5 foot 7 inches standing about 20 metres away.

135. [807]

     He said the tall man and girl were arguing and that the girl seemed “drunk or stoned or both”, [504] and that her voice was slurred but aggressive. He said she was “having a go” [505] at the taller man. After about 10 to 20 minutes he said the three people moved “up the road towards the ‘Gap’.” [506]

136. [808]

     He went on to say that later that night, after 10.30pm, he heard an argument coming from the Gap which he identified as the same argument or voices he had heard on the street which continued “for about an hour”, [507] after which he heard a scream. He said:

137. [809]

     He said that he continued working until sometime around 1am to 2am and that he saw the police and later a helicopter lighting up the whole area. He said he remembered the area being lit by the helicopter lights as he was “interested in the lighting effect it had on the area”. [509] He said he spoke to his neighbour, Ms Fairlie Kingston, the next day about what happened when he learnt that “a girl had gone over the cliff”. He said he did not give the incident any further thought and heard nothing about it in the press as he was overseas for some time. In November 1997 (when he returned to Australia), Ms Kingston told him then about a newspaper story. He gave no further thought to the article until he saw the “Witness” program and “thought there were similarities in that story”, [510] prompting him to contact police.

138. [810]

     Mr Doherty gave a second statement to police on 10 February 1999 during the course of Strike Force Irondale in which he clarified and elaborated upon his first statement.

139. [811]

     He said that he had only been woken in the early morning by a helicopter on two occasions, and one such occasion was in 1995 when “a model was found deceased at the base of the Gap”. [511] He said he was told that by a local shopkeeper.

140. [812]

     He said that on the previous evening he heard an argument between a man and a young woman and later that night he heard a women scream from near Simon University (which is at the northern end of the Gap).

141. [813]

     He said that the following day when the death of the model came up in general conversation he told Ms Kingston that he had heard a scream. He said he has since become aware the model’s name was Caroline Byrne. He said he did not discuss the matter with anyone until January or February 1998 when Mr Kingston showed him a newspaper article which insinuated her death may not have been a suicide. He said a few days later (ten at the most) he again spoke with Ms Kingston and discussed with her “what [he] had seen and heard”. [512] He said:

142. [814]

     In his second statement, Mr Doherty also clarified what he meant by the girl being “distressed”. He said he meant she was crying while she talked. He said, “she was very loud and obviously not caring about other people hearing her”.

143. [815]

     He said that he thought that the man arguing with the girl looked like the plaintiff, albeit from behind.

144. [816]

     He said that he believed the dark coloured jacket that the man was wearing was a leather jacket. He confirmed that the upturned collar or the scarf did not obscure any part of the back of the man’s head and he could see below the line of the man’s hair at the back.

145. [817]

     He said that the girl may have been wearing some denim jacket or jeans but that his view of her was obscured. He said that the argument lasted for 15 to 20 minutes and that at about 8:30pm or 9pm they walked away. He said he thought he thought no more of it until he heard them again at about 10:30pm and thought there was more than two voices. He then heard the argument on and off for an hour and then heard a scream. Prior to going to bed he noticed the police going past towards the Gap. Later he was awoken by a helicopter.

146. [818]

     At the committal, when asked if the woman was moaning, as if in pain, he said [514] :

147. [819]

     Mr Doherty gave a third statement on 9 November 2004 after the matter was under consideration by the ODPP. The third statement was in the form of an interview in which Det Sgt Quigg focused on “the scream”. He also invited Mr Doherty to address or change any detail in his previous statements:

148. [820]

     Later in the Sufficiency of Evidence Report under a subheading entitled "Witnesses to the events on the 7 June 1995”, [516] Det Insp Jacob summarised in greater detail the evidence it was anticipated Mr Martin, Mr Melbourne and Mr Doherty would give in the event that they were called by the Crown at the plaintiff’s trial for murder. [517]

149. [821]

     The analysis of the plaintiff’s account to police and others of his movements after 6:30pm on 7 June 1995 concluded with Det Insp Jacob’s assertion that the account is completely untruthful for the following reasons: [518]

     1. (1)

        The plaintiff’s failure to respond to the pager messages sent by Mr Rivkin at 7:30pm and 8:30pm, in circumstances where the plaintiff told Mr Barry in the “Witness” program that it would be practically impossible for him not to have heard the telephone had he received a call.

     2. (2)

        The plaintiff told police in the June 1996 interview that when he woke and saw that Ms Byrne was not home:

     3. (3)

        The plaintiff did not seek to contact any of Ms Byrne’s family, friends, or make any of the inquiries one would expect a person to make in the event that a loved one had not returned home after earlier being ill, in circumstances where her whereabouts were otherwise unaccounted for. In the circumstances, Det Insp Jacob commented:

150. [822]

     The plaintiff told police in his June 1995 statement, which he confirmed in his ERISP the following year, that prior to leaving the apartment to look for Ms Byrne, he left a note which said something to the effect of, “If you come home, call me on the mobile”. [523] The plaintiff’s mother and sister said in their statements in 2001 that they saw the note but that it was destroyed. [524]

151. [823]

     Michelle Wood gave evidence at the plaintiff’s trial about seeing the note and disposing of it. [525] There was no specific analysis of the significance of that evidence, or the lack of significance of that evidence, in the Sufficiency of Evidence Report. It was not the subject of submission in Mr Tedeschi’s closing submission.

152. [824]

     The plaintiff told police he left his apartment and went directly to the Kings Cross carpark to see if Ms Byrne’s vehicle was where it was usually parked. When he could not locate her car, he told police he went to the Crown street carpark associated with “The Sanctuary”. [526] A further carpark described in the Sufficiency of Evidence Report as the Woolloomooloo carpark (referred to at trial as the ABC carpark) was located between the two carparks. Both the Kings Cross carpark and the ABC carpark were security-controlled with an electronic access card at Kings Cross and an access/alarm code entry at the ABC carpark. [527] In the Sufficiency of Evidence Report it is said, referable to the record of interview with Mr Freris, that Mr Rivkin had between approximately 20 and 70 cars, all of which were accessible by the plaintiff and many of which were parked at the Kings Cross carpark and the ABC carpark. None were stored at the Crown Street premises. The only vehicle kept at the Crown Street premises was a company car, a red utility, Mr Freris used.

153. [825]

     In the Sufficiency of Evidence Report, this information was analysed and the conclusion drawn that the plaintiff was not telling the truth when he said he went to the Kings Cross carpark looking for Ms Byrne’s vehicle. It was the view of the investigators that the plaintiff had been with Ms Byrne throughout the afternoon and that he knew that her vehicle was parked at the Gap. There is no specific position articulated in the Sufficiency of Evidence Report to account for when the plaintiff collected the red utility from Crown Street and why he collected it. He was driving that vehicle when he picked up Mr Byrne and his son from the Connaught after allegedly alerting them to Ms Byrne being “missing”.

154. [826]

     Det Insp Jacob expressed the view that investigators could only speculate about the plaintiff’s movements between 11:30pm and 12:30am (being on the Crown case when the scream is heard by the fisherman and when the plaintiff appears on the cliff top calling her name). Det Insp Jacob went on to say, “there is no evidence that disclose[s] the movements of either Wood or the other male person with him”. [528]

155. [827]

     The plaintiff told police that he first drove to the Connaught Apartments and upon not finding Ms Byrne’s car parked in the street, he drove up Oxford Street, through Bondi to Camp Cove, and then to Watsons Bay. As to this account, the investigators noted that if the plaintiff awoke at 12:40am as he first told police, and which he affirmed in his ERISP in 2001, then there was literally no time for him to have driven to these various locations before arriving at Watsons Bay given that, according to Mr Brunetta, he and Mr Wano first saw the plaintiff at approximately 12:30pm and there is nothing to put their evidence in doubt. Similarly, in Peter Byrne’s statement, he says it could have been as early as 12:30pm that he received the telephone call from the plaintiff. The investigators concluded that it was in the plaintiff’s ERISP of June 1996 that he changed the so-called “wake up time” of 12:40am to 11:30pm, affording him more time to “drive around looking for [Ms Byrne]” [529] as he claimed.

156. [828]

     Quite apart from the plaintiff giving inconsistent accounts as to whether he called Mr Byrne from his mobile phone or called from a public phone at the Gap, Det Insp Jacob offered the view that it “seems incredulous” [530] that the plaintiff, after having conducted a search of the Gap area himself, fearing that Ms Byrne had committed suicide, would contact her father in the early hours of the morning to inform him that his daughter was missing and that her car had been found at the Gap, and then to offer to collect him and Ms Byrne’s brother and seek their attendance to conduct a further search for what the plaintiff must have feared was her deceased body on what Det Insp Jacob described as an extremely cold and miserable morning. The plaintiff told the Coroner that he would have liked Ms Byrne’s father and brother to have found Ms Byrne’s body for him. [531]

157. [829]

     In the view of the investigators, a reasonable person, even if acting in extremis, would have called police and reported the matter and not involved her family. From that course of conduct the investigators drew the inference that the plaintiff was endeavouring to involve Ms Byrne’s father and brother, prior to the involvement of police, to deflect attention from him. Det Insp Jacob also referred to the plaintiff’s behaviour as described by Mr Byrne as “highly agitated, hands moving about, looking from side to side whilst he was driving, as if he was looking for something”, and that his overall behaviour was “irrational”. [532]

158. [830]

     The ultimate position taken by investigators was that the plaintiff’s account of arriving at the Gap and concluding she had committed suicide was a fabrication. In the view of investigators, the plaintiff was never asleep at home in Ms Byrne’s absence but with her at Watsons Bay at the time of her death, and that he was responsible for it.

159. [831]

     The plaintiff initially told various people including Peter Byrne and police in his June 1996 interview that he was “spiritually drawn” to the Gap.

160. [832]

     Some of his statements include the following: [533] “It was Caroline’s spirit that told me where to find her”; [534] “I believe that there was some kind of spiritual communication to me that was occurring to me subliminally to go there”; [535] “Caroline and I had some degree of telepathic communication like identical twins feeling each other’s pain”. [536]

161. [833]

     Det Insp Jacob contended that as time progressed the plaintiff’s version of events changed in that he distanced himself from his original claims of telepathic and spiritual communication in explaining how he came to be at the Gap to a range of comments that were more palatable, such as: [537]

162. [834]

     An extension of what Det Insp Jacob regarded as a series of interrelated lies as to how the plaintiff came to be at the Gap purportedly calling out for Ms Byrne at 12:30am includes the circumstances in which he claims to have located her car in Gap Lane behind the Gap restaurant. [541] He gave the following accounts variously in his statement to police in June 1995, in the two recorded interviews in July 2001, and his evidence before the Coroner: [542]

163. [835]

     On the analysis of that material, Det Insp Jacob concluded that Ms Byrne’s car was not visible to passing traffic and that in order to find it one would need to drive into Gap Lane. [550] Det Insp Jacob concluded that this is another of the plaintiff’s deliberate lies (and one repeatedly advanced by him), there being no need to “search” for her car given that he knew where it was parked, having been in her company at Watsons Bay at various intervals that day. [551]

164. [836]

     On returning to the Gap after collecting Ms Byrne’s father and mother, the plaintiff alerted them to Ms Byrne’s vehicle. Peter Byrne saw the plaintiff open her car with a set of keys. [552] This was regarded by Strike Force investigators as significant given that when police later attended the scene entry to the vehicle was forced, the plaintiff having not informed police he had keys. [553] Both Mr Byrne and Peter Byrne saw the plaintiff retrieve Ms Byrne’s wallet from inside the vehicle which he then handed to Peter Byrne and which he encouraged him to open. Peter Byrne then handed the wallet to his father. Mr Byrne did not see Ms Byrne’s debit card or the receipts for the purchases she made earlier that day. He said that had he seen them, he would have paid particular attention to them as he was looking for anything which may have given him a clue as to why Ms Byrne would have been at the Gap at all. Mr Byrne said that he was familiar with the debit card as he opened the account for her. [554]

165. [837]

     Later that afternoon at 3pm the plaintiff told Mr Byrne, “They have found receipts in her wallet which shows she was out there the day, the Tuesday and the Wednesday”. [555] Investigators note that it was not until 12 June 1995, when the plaintiff was giving a statement to Senior Cst Woods, that the plaintiff gave the receipts to police. [556] From that information, the conclusion drawn by the investigators was that the plaintiff searched Ms Byrne’s vehicle and her wallet after killing her but before the arrival of Mr Byrne, Peter Byrne, and the police, and that the receipts were removed by him at that time. [557] Further, only when the plaintiff was satisfied that he could incorporate the receipts into “a scenario” [558] that suited his claim that she had committed suicide did he mention them first to Ms Byrne’s father and then some days later provide them to the police.

166. [838]

     In both statements Mr Byrne and Peter Byrne gave to police, their search of the area around the Gap before the arrival of police was described in detail. The poor weather conditions were noted, as was the topography and the poor functioning of a torch borrowed from Mr Wano and Mr Brunetta. [559] The torch had a weak beam that was not apparently functioning at optimum in any event. It would appear that because of the darkness and the weather, Mr Byrne did not participate in the search for very long but returned to the red utility whilst Peter Byrne and the plaintiff continued searching.

167. [839]

     On a pathway near the cliff face, the plaintiff indicated an area over the cliff edge and almost directly below and in the general direction of where Ms Byrne’s body was later recovered and said words to the effect, “Can you see that Pete, it looks like it could be something”. [560] Peter Byrne gave evidence that he could see nothing other than darkness, after which the plaintiff said the following words “Look Pete, it looks like legs and a body”. [561]

168. [840]

     At about 5am, after Peter Byrne had taken his father home, he received a telephone call from the plaintiff in which he said, “Pete, yeah, they found her. A helicopter found her. It was where we were looking”. [562]

169. [841]

     Peter Byrne’s impression was that the plaintiff was being definitive in drawing attention twice to what he claimed to see and which Mr Byrne claimed he could not see, despite the fact they were standing together at the cliff top. Peter Byrne said in his statement to police of 20 May 1999:

170. [842]

     Peter Byrne went on to say that he was unable to make out any shape or form on the rock floor, despite what he considered was his good eyesight. [564]

171. [843]

     What was described as further supporting evidence that the plaintiff had claimed to have seen Ms Byrne’s body with the use of the fisherman’s torch were statements of uniformed police officers who attended the area. They are set out in the sufficiency of evidence report as follows: [565]

172. [844]

     Of the process of searching under the command of the Police Rescue Unit, the plaintiff said in his 1996 ERISP:

173. [845]

     In the Sufficiency of Evidence Report, the plaintiff’s claim that he saw Ms Byrne’s legs with the light of the fisherman’s torch in Peter Byrne’s company, and then later to have assisted police in locating her using the aid of the specialist light sources, was described as “a very significant issue”. [567]

174. [846]

     After his analysis of all the available information, Det Insp Jacob concluded that the plaintiff must have had prior knowledge of where Ms Byrne had left the cliff top and the area on the rock platform below where she landed. [568] In support of that claim, Det Insp Jacob noted there was no evidence of even an approximate area where Ms Byrne had left the cliff top given there were no personal belongings found or any other indicia of her descent along the cliff top at the Gap from where a person could have intentionally jumped or stepped. In addition, the conditions of the evening which, in the view of the investigators, made it “impossible” to have sighted Ms Byrne at the base of the cliffs from any point along the cliff top, were emphasised. [569]

175. [847]

     Helicopter rescue officer Cracknell described the conditions as follows:

176. [848]

     Det Insp Jacob also noted that each of the members of the police rescue unit gave evidence that police torches were not powerful enough to penetrate the mist to the base of the cliff, and that visual recognition of the rocks was only possible using a Metralux torch which produced a defined optical beam of light.

177. [849]

     Det Insp Jacob concluded that although the plaintiff sought to distance himself from the specific statements he had made on 8 June 1995 concerning sighting Ms Byrne’s body at the base of the cliffs, what he said at that time was revealing. This was said to be particularly so given what plaintiff told Cst Griffiths who was the officer on duty when he attended at Rose Bay police station with Mr Byrne and Peter Byrne to report Ms Byrne missing. [571] Cst Griffiths reported the plaintiff as having said:

178. [850]

     Cst Griffiths responded with the question, “What makes you think that?” to which the plaintiff is reported to have replied, “I’m pretty sure I know where she is”. [573]

179. [851]

     Det Insp Jacob also noted that it was only at Mr Byrne’s instigation that they attended Rose Bay police station as he was frustrated that time was being wasted without police intervention. [574]

180. [852]

     It was whilst at the police station that the plaintiff produced the referral to Dr Sippe. Mr Byrne told police of a conversation he had with the plaintiff at that time when, after querying why Ms Byrne did not go to work that day, the plaintiff said, “She’d been to the doctors, she’s depressed. She was supposed to go and see a psychiatrist today.” [575] Mr Byrne queried what she was depressed about, as to which the plaintiff said, “I don’t know. I don’t know what she’s depressed about”, [576] at which point he produced a folded document and said, “Look, she’s got a referral to [a] psychiatrist. Here it is, read it. Here’s the proof, she’s taken her own life”. [577] Later that morning the plaintiff also told his mother about the referral. This was also considered by the investigators as another very significant issue and one upon which they relied, together with the evidence that had been assembled of the plaintiff’s known movements and those of Ms Byrne on 7 June 1995 which the investigators regarded as supportive of the plaintiff’s knowledge of the circumstances of Ms Byrne’s death and his involvement in them, and a determination to conceal the truth of that fact. [578]

181. [853]

     Particular reliance was also placed upon the plaintiff’s reference to the psychiatrist’s referral letter to Mr Byrne as proof of her suicide before any other alternative had been fully explored. [579] As Det Insp Jacob emphasised, the plaintiff had not contacted any of her friends or professional associates which might have explained why her vehicle was at the Gap, by way of example, that she may have been socialising late with friends and was now safely at home having been driven home leaving her car to be collected the following day. Police were not provided with the referral letter and were not told of its existence until some time later. Investigators expressed the view that the plaintiff showed the referral document to both Mr Byrne and later to his mother in an effort to persuade them to accept that Ms Byrne had committed suicide, again to deflect attention from himself. The investigators considered it “highly suspicious” [580] that the plaintiff would have the referral with him at the police station on 8 June 1995, and to be in a position to refer to it.

182. [854]

     Further, in a record of interview in July 1995, when Snr Cst Woods asked the plaintiff whether Ms Byrne had an appointment with anybody on the Wednesday afternoon, he said:

183. [855]

     Investigators expressed the view that the existence of the referral letter was the genesis of the plaintiff’s claim that Ms Byrne committed suicide due to depression; a scenario he developed after killing Ms Byrne, and which he continued to develop and to proffer thereafter in his account to police and the media and in his evidence to the Coroner. [582]

184. [856]

     The hypothesis that Ms Byrne committed suicide was examined by Strike Force Irondale at length. It was also the subject of detailed evidence and submissions at the plaintiff’s trial. The plaintiff had widely asserted that it was Ms Byrne’s changing career that was a trigger to “her depression”; that she had not recovered from her mother’s death by suicide; and that she had a genetic predisposition to committing suicide. [583]

185. [857]

     After a close analysis of Ms Byrne’s career path, and after taking into account the views of her friends, associates and family members, Det Insp Jacob concluded that the plaintiff’s contention that she was suicidal was both “false and embellished”. [584] The investigators emphasised that Ms Byrne did not identify a change in career to Dr Pan as a possible cause for her feeling depressed, and in any event, the change in career was only of recent currency, whereas she told the doctor that her feelings of being depressed had been with her for a month. [585] As evidenced by the summary of Ms Byrne’s social and professional life in the month or so before her death, she had apparently thoroughly discussed the issue of her changing career with her father and friends, and whilst she had some continuing diffidence about it, she generally spoke about it positively and with anticipation, in particular that her new role would provide her with future work and income security. [586] Moreover, after apparently resolving not to lose her status as a model in the short-term, she had settled on arrangements to ensure a continuity of work in that industry, thereby negating any ongoing career issues as a source of inner conflict. [587]

186. [858]

     Det Insp Jacob also firmly rejected the plaintiff’s claim that Ms Byrne had not recovered from her mother’s death, or that she had a genetic predisposition to commit suicide. In support of that conclusion, he referred to Mr Byrne’s account to the effect that the family had accepted the loss of their mother and, so far as Mr Byrne was concerned, she had received and completed a course of treatment with Dr Alexandra Vrjosseck in April 1993 to address her grief. [588]

187. [859]

     Finally, after taking into consideration that it was the view of investigators that it was Ms Byrne who Mr Doherty saw arguing with the plaintiff at the Gap on the evening of 7 June 1995, followed by a scream, the hypothesis that Ms Byrne threw herself to her death was rejected. [589]

188. [860]

     Whilst Strike Force Irondale investigators accepted, as is evident from the multiple sources they had interrogated, that there was what was described by Det Insp Jacob as “a constellation of issues” [590] impacting on Ms Byrne as at June 1995, they concluded these issues were centrally linked to her relationship with the plaintiff. Strike Force investigators regarded that constellation of issues as the ones Ms Byrne “could not put her finger on” [591] when seeking help from Dr Pan about her feelings of depression.

189. [861]

     In the Sufficiency of Evidence Report, Det Insp Jacob noted that during the second phase of the investigation in 1996, Det Sgt Wyver consulted Dr Neil Schultz, Consultant Physician in Psychological Medicine. Dr Schultz provided a report to the Coroner in which he identified that Ms Byrne was capable of suicide and that, in his view, there were a number of features predisposing her to suicide, including her psychiatric and family history. He went on to say that the likelihood that she committed suicide depended upon the degree to which the history given by others was accepted, including the history provided by her colleagues, her father, her general practitioner and the plaintiff. Dr Schultz concluded that, prima facie, the risk of suicide was low when regard was had to the reports of colleagues and remained low factoring in her father’s evidence, but that it rose to moderate if Dr Pan’s consultation notes were taken into account, and to high if the plaintiff’s evidence was added. [592] Since receipt of that report, Det Insp Jacob identified the additional evidence that Strike Force Irondale collected. In his assessment, the plaintiff’s account of Ms Byrne’s depressed mood and her determination not to return to work on 7 June 1995 should be rejected entirely. [593]

190. [862]

     Det Insp Jacob noted that the Strike Force had consulted with a forensic psychologist, Ms Sarah Yule, who was, at the time of presenting the Sufficiency of Evidence Report, undertaking what was described as a “psychological autopsy” of Ms Byrne. For the purposes of that undertaking, she had been provided with the full complement of material assembled by Strike Force Irondale. Det Insp Jacob said that he expected her report to be completed within weeks. He concluded that, subject to anything arising from Ms Yule’s report, and after full weight had been given to all of the issues that had been raised by Ms Byrne’s presentation in the months, weeks and days before her death and fully investigated, Strike Force Irondale rejected the hypotheses that Ms Byrne took her own life, and that they had done so beyond reasonable doubt. [594]

191. [863]

     Ms Yule provided a report dated 17 April 2004 which I assume was provided to Mr Tedeschi by police for his consideration in preparation for trial. [595] Ms Yule did not give evidence at the trial. There is no evidence one way or the other as to whether it was disclosed in discharge of the Crown’s duty of disclosure. There is certainly no suggestion by the plaintiff that it was not.

192. [864]

     In that report, Ms Yule identifies all of the material made available to her for the purposes of offering an opinion in the form of a “psychological autopsy” being “an assessment of the personality, lifestyle, significant events and behaviours of the deceased particularly in the days preceding the person’s death”. [596]

193. [865]

     She went on to say:

194. [866]

     It is not necessary to identify the materials provided and the information available to Ms Yule in preparation of her report. Suffice to say that it appears to have included all of the statements which comprised the brief of evidence which accompanied the Sufficiency of Evidence Report, excluding any reference to the contribution of A/Prof Cross. Importantly (for reasons which will follow), it also included the full complement of the hospital and medical records relating to Ms Byrne’s 1992 admission following overdosing on sleeping tablets.

195. [867]

     In a subheading entitled “Sequence of known relevant events”, [598] Ms Yule sets out a chronology of events both personal to Ms Byrne and, in particular, the 24 hours preceding her death.

196. [868]

     Ms Yule made it clear in her report that in determining the most likely scenario based on relative probability, “all possible manners of death are considered” [599] . She went on to say that these factors, in isolation, may not contribute substantial psychological evidence, however in combination they can indicate the relative likelihood of one scenario. [600] She acknowledged that an indeterminate conclusion is also possible as part of that process.

197. [869]

     Although no reference was made to the evidence of A/Prof Cross, Ms Yule discounted the possibility that Ms Byrne’s death was accidental. In considering the possibility of suicide, she considered: [601]

198. [870]

     In considering the possibility of a homicide, Ms Yule detailed a large number of considerations, some of which also addressed the unlikelihood of suicide. They included: [602]

199. [871]

     Although not strictly within the remit of her report, Ms Yule considered the plaintiff’s behaviours as inconsistent with his apparent personality and his usual behaviours. These included what she considered a surprising lack of concern as to Ms Byrne’s whereabouts at both 4pm and 7pm on 7 June 1995; the more surprising given what she described as “his reported knowledge that she was depressed, that several Rohypnol tablets were missing [and] that she was uncharacteristically sleeping throughout the day”. [608]

200. [872]

     Ms Yule also considered that behaviour unusual given the plaintiff had also told Mr Barry in the “Witness” program interview that Ms Byrne would never go out without telling him where she was going, and would rarely go out without him at all and, further, that he frequently contacted her to find out where she was, including ringing her father and others when he could not contact her directly. [609] (I have already referred to the consideration Det Insp Jacob gave to the plaintiff’s unusual conduct on 7 June 1995 and his failure to contact anyone.)

201. [873]

     It is unnecessary to refer further to Ms Yule’s analysis of the evidence relevant to the possibility of homicide, suffice to note that her ultimate conclusion was as follows:

Resolution of the plaintiff’s alternate case against Det Insp Jacob as a prosecutor

1. [874]

   To restate the plaintiff’s alternate case against Det Insp Jacob as a prosecutor, it is put against him that he provided false, inadequate and misleading evidence in the Sufficiency of Evidence Report knowing it was to be submitted to the ODPP, and intending by that conduct to dishonestly mislead Mr Tedeschi, thereby constituting him a prosecutor within the principles in Brain. Having reviewed the structure and content of the Report, it is to that issue that I now turn.

2. [875]

   The particulars of what is said to constitute his dishonest conduct are as follows:

3. [876]

   As to (a) and (b) above, the same argument is advanced by the plaintiff in support of his case that the proceedings were initiated by Mr Tedeschi without reasonable and probable cause, although in that context, what is alleged is that Mr Tedeschi failed to make a proper assessment of the reliability of the evidence of Mr Martin, Mr Melbourne and Mr Doherty (“the identification evidence), an assessment which the plaintiff submitted would have necessitated an advice to Mr Cowdery that a prosecution for murder should not be commenced.

The issue of identification

1. [877]

   It is convenient to deal with the identification evidence in addressing both the claim that Det Insp Jacob is a prosecutor and that Mr Tedeschi prosecuted the plaintiff without reasonable and probable cause. However, before doing so, it is useful to summarise, albeit very briefly and only for completeness, the evidence of Mr Melbourne, Mr Martin and Mr Doherty at trial; evidence which, as I have already noted, was broadly consistent with their statements which I have already set out at length in the context of Det Insp Jacob’s treatment of them in the Sufficiency of Evidence Report.

2. [878]

   Mr Melbourne gave evidence that he first noticed the girl, as she was “a really appealing looking girl” [611] and that “she was tall and blonde, and very striking. She had tights on”. [612] He said she also wore a blue denim jacket and that “she looked like she would have to be a model or a, you know, someone in the public eye-type of thing”. [613]

3. [879]

   He described one of the men as a “rangy sort of a guy” [614] by which he said he meant “[w]ell, he’s tall and looking pretty fit. You know, like a rangy sort of fit guy”. [615] He had long blonde hair down to his collar, and was wearing a brown suede jacket. [616] The man had a strong, chiselled face, a strong jaw-line with a round chin. Mr Melbourne formed the impression that the man looked “a bit ponsy”. [617] On the Crown case, this man was the plaintiff.

4. [880]

   Mr Melbourne gave evidence that when Ms June Clifford showed him a photograph of Ms Byrne he immediately recognised her as the woman he had seen with the two men. [618] He said he then called Mr Martin over and showed him the photograph and he also recognised the woman. Ms June Clifford told him that they had been to a funeral that day for the girl depicted in the photograph. He was told that the girl in the picture was the deceased, Caroline Byrne.

5. [881]

   Mr Melbourne gave evidence that after Ms Clifford had shown him the photograph of Ms Byrne she showed him a photograph of a man who he recognised as the taller of the two men he had seen with Ms Byrne. [619] The man in the photograph wore the same jacket and was the same build as the man he had seen with the beautiful girl. Mr Melbourne gave evidence that he was not told at that stage who the man was, nor what his relationship was with Ms Byrne. [620] However, he agreed that in his statement of March 1999 he had said that he had been told that the man was Ms Byrne’s boyfriend. [621]

6. [882]

   At trial Mr Melbourne, having given evidence that on his way to the Coroner’s Court he had recognised a male as the same person in the photograph and the same person he had seen at the Gap, was asked:

7. [883]

   Mr Martin gave evidence that he recalled seeing Ms Byrne because she was:

8. [884]

   At the time he saw the girl, Mr Martin said he commented to Mr Melbourne as follows:

9. [885]

   Mr Martin described the girl as being 5 feet 10 inches to 5 feet 11 inches tall. She had dark blonde hair and was in her early 20s. She was wearing tights and a “loose-ish … shirt-type top”. [625] After refreshing his memory from his statement of 9 July 1995, he described the top as “like a denim sort of shirt-ish jacket type thing”. [626] In cross-examination he agreed that in his statement dated 9 July 1995, he described a female as quite tall, approximately 20 years old, with long blonde hair and wearing a blue denim jacket with light-coloured tights. [627]

10. [886]

    He gave evidence that one of the men was “tall, sort of gingerish-blondish hair; athletic build, but, you know, not a big man”. [628] He appeared to be of Anglo-Saxon background. [629] He wore a dark-coloured jacket that appeared to be over-sized. It was an anorak, outdoor-type jacket with pockets. Mr Martin stated that the jacket worn by the person depicted in Ex AT was similar to the jacket worn by the taller man he saw at Watsons Bay.

11. [887]

    At trial, Mr Martin, having given evidence of his instant recognition at the Coroner’s Court of the plaintiff as the taller of the two men he had seen with Ms Byrne, was asked:

12. [888]

    Mr Doherty gave evidence at trial that in 1995, before 8pm, on an evening prior to a helicopter searching at the Gap at around 1 to 2am, he heard "a young girl outside who was sort of slurring her words and moaning". [631] She was "with her head in her hands sitting on the kerb at the bottom of a light post on the far side of the road from my studio". [632] There was a man under the awning and a smaller man sitting on the wall just up from the girl. He thought they were having an argument. He said the woman was:

13. [889]

    He described the man under the awning as:

14. [890]

    The other man was:

15. [891]

    He said the girl had:

16. [892]

    At about 10:30pm he said he could hear arguing coming from near the pathway where the Simon University meets the Gap lookout, and he recognised this as a continuation of the argument he had heard earlier. The argument went on for about an hour and then at 11:30pm or midnight he heard a short scream, maybe a second or so, before silence. He said it was a woman’s voice.

17. [893]

    He said he spoke to Ms Kingston the next day and told her he had heard a scream. (Ms Kingston made no reference in her statement of 8 February 1999 to Mr Doherty telling her in February 1998 about hearing an argument which extended to the Gap or that the scream came from near Simon University.) Mr Doherty made no reference to Simon University in his first statement. He said that in 1998 he spoke to Ms Kingston again and she showed him a newspaper article which contained photographs of the plaintiff and Ms Byrne. Ten days later he spoke to Ms Kingston again and for the first time gave her a description of the people he had seen in 1995.

18. [894]

    Mr Doherty gave evidence that he then watched the "Witness” program where he had a "proper look" [637] at the plaintiff. Mr Doherty was then asked to compare the plaintiff's appearance on the "Witness" program to the tall man he saw on the night. Mr Doherty gave evidence that the plaintiff (as he appeared on the program) had a similar stature, height, build and hair to the man under the awning.

19. [895]

    In cross-examination Mr Doherty agreed that he had told the police that the man under the awning had "short cropped fair to blonde hair", [638] that he could not describe the woman "only to say she had dark clothes on" [639] and that:

20. [896]

    He said her words were "all slurred. It was like a rant". [641] He gave evidence that the taller man "had short hair at the sides … and the back … and a little bit longer on top" [642] and that "it was what you would call probably a number 2 or number 3 around the sides". [643] Mr Doherty then said, “[s]o you could see the shape of the head quite clearly. And there seemed to be a little bit more on top". [644] It was "short on the side, the back, all around the back and a little bit more on top. It was a style at the time". [645] He agreed it could be described as very short hair following the contours of the skull at the sides and back. He said the man had "long limbs … long arms and long legs". [646] Mr Doherty was emphatic that the man he saw did not have long blonde hair: "No, no, no. You could see the shape of the head very clearly". [647]

21. [897]

    Mr Doherty did not give any evidence of seeing the woman’s face or her hair. He said he could not see her hair at all as she was holding her head in her hands and that he did not see the back of her head as they walked away. He was asked:

22. [898]

    There was evidence at trial from Ms Byrne's family members and friends that Ms Byrne was not the sort of person that would be sitting in the gutter affected by prohibited drugs, or alcohol, shouting at people, and that such behaviour would have been totally out of character. Her sister, Deanna, gave evidence that she had never seen her sister drunk. Tanya Zaetta, a friend of Ms Byrne, agreed that a description of Ms Byrne as drunk and shouting would be "absolutely absurd". [649]

23. [899]

    It is well recognised that the displacement effect, described by Stephen J in Alexander v The Queen (1981) 145 CLR 395; [1981] HCA 17 at 409, set out in the passage below, creates the opportunity for the misidentification of a person.

24. [900]

    In R v Skaf 60 NSWLR 86; [2004] NSWCCA 37 at [80] this Court described the displacement effect in the following terms:

25. [901]

    In circumstances where the identification of the plaintiff by Mr Martin at the inquest in November 1997, and then the separate identification of the plaintiff by Mr Melbourne at the resumed hearing in February 1998 as one of two men with the woman they identified as Ms Byrne at Watsons Bay on 7 June 1995, was preceded by them both having been shown a single photograph of the plaintiff by Ms June Clifford within weeks of the initial sighting, the risk of displacement was in play. The risk of displacement was also in play (although in a different way) in Mr Doherty’s nomination of the plaintiff as similar to the taller of the two men he saw and heard arguing with a girl on the evening of 7 June 1995, after he had seen the “Witness” program in 1998 in which the plaintiff featured prominently, and also after he had been shown a newspaper article which included a photograph of the plaintiff.

26. [902]

    The plaintiff submitted the evidence of Mr Martin and Mr Melbourne, and their identification of Ms Byrne, also carried the additional risk that their evidence was “contaminated” by the identification of her from the photograph produced by Ms Clifford at Watsons Bay.

27. [903]

    The plaintiff went further in his submissions by contending that there were motives for persons aligned with Ms Byrne's father and with Mr Blanchette to have Messrs Melbourne and Martin “come forward” [650] and identify the plaintiff as being with her at Watsons Bay on the afternoon of the day she died. It must be assumed from the tenor of that submission that the plaintiff also contends that this was accompanied by a ploy to have the plaintiff identified at the Coroner’s Court and for them to deliberately suppress or fail to give evidence about the circumstances in which they had each been shown a photograph of him in 1995. Nothing was advanced to support that submission other than what counsel submitted were "irreconcilable differences” [651] between the evidence of Ms June Clifford and Mr Martin and Mr Melbourne about the sequence of events that preceded the plaintiff being identified by each of them in the course of the inquest. While it is clear from the evidence they gave at trial in 2008 that the circumstances in which they were in contact with one another in the weeks that followed Ms Byrne’s death in 1995 (all of which were casual and unplanned) produced differing recollections as to what photographs had been shown to them and by whom, and in what sequence, including the discussions that they had with each other and with Ms June Clifford at that time, that is a wholly insufficient basis upon which to invite the Court to infer that they had deliberately conspired to make a false identification of plaintiff. That submission should not have been advanced.

28. [904]

    The plaintiff also advanced the submission that Ms Clifford had told a deliberate lie in her statement of 15 May 1996 in saying that when she returned to Watsons Bay on the second occasion (this time to The Gap Tavern) she came to the conclusion that she was “being dramatic” and then “put everything out of [her] mind”. The plaintiff submitted that it was “no accident” that neither Mr Melbourne, Mr Martin nor Ms Clifford disclosed at the inquest that they had earlier been together when a photograph of the plaintiff was discussed. Again, the clear implication is that they each knew that would have undermined the weight of their evidence and that they conspired to conceal it. It might be gainsaid that the evidence of Mr Martin and Mr Melbourne would not have been viewed by the Coroner as having the same compelling weight he ascribed to what he considered was the "spontaneous" identification of the plaintiff by each of them in the court precincts, were he to have known that they had been shown a single photograph of the plaintiff within weeks of 7 June 1995 (even if that were two or more years before they claimed to identify the plaintiff at Glebe). That does not, however, entitle the plaintiff to advance the submission that there was a deliberate suborning of the proceedings by either of them or by Ms Clifford. That was also a submission that should not have been advanced.

29. [905]

    For the purposes of these proceedings the plaintiff is obliged to demonstrate not merely that there were issues as to the reliability of the identification of the plaintiff by Mr Martin and Mr Melbourne which should have been apparent to either or both of Det Insp Jacob and Mr Tedeschi at the time proceedings were initiated and maintained, but that no reliance should have been placed upon their evidence in assessing the sufficiency of the Crown case against the plaintiff for murder for that reason. The same approach needs to be taken to Mr Doherty’s evidence.

30. [906]

    The plaintiff submitted that Mr Doherty’s evidence at trial was “worthless” and could not reasonably or properly have been relied upon by Mr Tedeschi when he initiated proceedings against the plaintiff for murder, or when he maintained the criminal prosecution through to verdict, his evidence being, in the plaintiff’s submission, irretrievably tainted by the extensive media coverage of Ms Byrne’s death following the inquest, including the broadcast of the “Witness” program. The plaintiff submitted that to rely on Mr Doherty’s evidence to establish that the plaintiff was at Watsons Bay at a time proximate to Ms Byrne’s death (on the Crown case at 11:30pm on 7 June 1995), a fact identified by Mr Tedeschi as a critical circumstantial fact in his opening and closing submissions, was further evidence of the objective insufficiency of the evidence to support a charge of murder. It was then submitted that Mr Tedeschi’s treatment of Mr Doherty’s evidence in his closing submissions is also evidence of his malice. This will be dealt with as a separate issue later.

31. [907]

    The plaintiff does not discharge the onus on him in these proceedings by a critical analysis of the “identification evidence” as it was adduced at trial and tested in cross-examination, in particular the circumstances in which Mr Melbourne and Mr Martin made their positive identification of the plaintiff in November 1997 and February 1998 and the circumstances in which Mr Doherty made his identification of the plaintiff after viewing the “Witness” program. That exercise was obviously necessary for the purposes of the plaintiff’s conviction appeal where the challenge was to the adequacy of the directions given by the trial judge. (I note that the submissions filed by the applicant’s counsel on the appeal are a mirror image of the analysis of that evidence undertaken by his counsel in these proceedings, with references in final submissions to the trial transcript referable to its page numbers in the Court Book as distinct from transcript references in the submissions on the appeal.)

32. [908]

    A different analysis is called for the purposes of these proceedings. The question here, insofar as it relates to Mr Tedeschi as a prosecutor, is whether there was reasonable and probable cause for him to initiate and maintain the proceedings against the plaintiff for murder, where the Crown sought to make the case that the plaintiff had not given a truthful account to police of his movements on 7 June 1995 (in particular his account of not seeing or speaking to Ms Byrne at any time after 1pm that day after he left her in bed at their apartment) by relying on the direct evidence of Mr Martin and Mr Melbourne as two witnesses who positively identified him at Watsons Bay in Ms Byrne’s company that day, together with other items of evidence said by the Crown to support that identification – the sighting of Ms Byrne’s car parked in Gap Lane being one such circumstance. That is not to say that what emerged at trial is irrelevant. Indeed, it would appear, perhaps unsurprisingly, that in some respects the identification evidence adduced by the Crown at trial from Mr Melbourne and Mr Martin was expressed in more qualified terms than in their July 1995 statement.

33. [909]

    Insofar as Det Insp Jacob is concerned, the question is different again. It is whether the plaintiff has established that Det Insp Jacob knew of the effect of displacement and/or “corruption” by the media and somehow sought to conceal it or mute its impact in his treatment of the evidence of Mr Melbourne, Mr Martin and Mr Doherty in the Sufficiency of Evidence Report. I am not persuaded that the plaintiff has discharged that onus. While Det Insp Jacob did place significant reliance on their evidence, despite obvious issues with it including the wrong identification of Adam Leigh by Mr Melbourne in 1998, I do not read his analysis of their evidence in the Report as other than a fair summary in the context of the Report read as a whole and for the purposes for which it was prepared. The same analysis and conclusions apply with respect to his treatment of the evidence of Mr Doherty. I am of the same opinion as regards particulars (c)-(e) above. I do not regard any aspect of Det Insp Jacob’s analysis of those subjects comprehended by (a)-(d) as other than reasoned and available or that the plaintiff has made good the claim the subject of (e). I am not satisfied that the plaintiff has established that Det Insp Jacob acted dishonestly in his dealings with Mr Tedeschi or that the challenge to his credit in these proceedings was successful.

34. [910]

    In particular, I consider it was open to Det Insp Jacob to reject the plaintiff’s account of his movements on 7 June 1995, including his account of being at home asleep for many hours before waking and finding Ms Byrne absent, leaving it for a tribunal of fact or officers of the ODPP to determine whether there were other explanations for his conduct inconsistent with what Det Insp Jacob considered was the plaintiff’s knowledge of the circumstances in which Ms Byrne descended from the cliffs at Watsons Bay to her death.

35. [911]

    For that reason, the plaintiff’s alternate case against Det Insp Jacob as a prosecutor fails. It follows that the plaintiff’s case is confined to proving Mr Tedeschi prosecuted him maliciously and without reasonable and probable cause.

36. [912]

    There were significant issues with Mr Doherty’s evidence which Mr Tedeschi accepted in his evidence in these proceedings were obvious to him at the time he advised Mr Cowdery that there was sufficient evidence to support a charge of murder. He said in his statement of October 2016, “As an experienced Crown Prosecutor, I did not form the view that Mr Doherty was an unreliable witness”. [652] Mr Tedeschi accepted, however, that the description in Mr Doherty’s first statement of the girl he saw as “stoned” or “drunk” could not have been Ms Byrne since toxicology confirmed she had no alcohol (or Rohypnol) in her blood at the time of her death.

37. [913]

    Mr Tedeschi also accepted Mr Doherty did not see the girl’s face (or hair) and that he gave no other physical description of her, and that his description of the taller man was inconsistent with the length and cut of the plaintiff’s hair as at June 1995 referable to photographs of him taken on 10 June 1995. By contrast, when the plaintiff appeared on the "Witness" program in 1998 he had short hair in a style that was not inconsistent with what Mr Doherty described the taller man to have had. The potential for Mr Doherty's memory to have been influenced by the images he saw of the plaintiff on the television three years after the evening of 7 June 1995 is obvious. In his second statement Mr Doherty also asserted the second man resembled the second man who participated in the “Witness” program re-enactment. It was no part of the Crown case that that person was in any way implicated in the events of 7 June 1995.

38. [914]

    Quite apart from the potential corruption of Mr Doherty’s evidence by media coverage, the plaintiff submitted it was not open for Mr Tedeschi to have “work[ed] backwards” [653] from the fact of Ms Byrne’s death and the isolated scream the fisherman heard, to invite the jury to conclude it was Ms Byrne who Mr Doherty saw and heard arguing with two men (one of which was the plaintiff). The plaintiff submitted that the issues with Mr Doherty’s evidence were so great that the scream heard by the fishermen and the scream Mr Doherty heard might well have been unrelated. I do not accept that submission. In my view, it was open to Mr Tedeschi to construct the Crown case on the basis that the scream the fishermen heard was in all probability Ms Byrne’s scream as she descended from the cliff edge such that the temporal alignment with the scream heard by Mr Doherty was also evidence upon which he could invite the jury to find that it was Ms Byrne who was also seen and heard by Mr Doherty underneath his awning.

39. [915]

    Mr Tedeschi accepted in his evidence in these proceedings that the identification evidence had significant issues attending its acceptance by a jury, not the least because Mr Melbourne misidentified Adam Leigh at the Coroner’s Court as the second or other man with the plaintiff and Ms Byrne in the daytime sighting at Watsons Bay. It was the Crown case at trial that the identification of Mr Leigh was a mistake. It was the defence case that their identification of the plaintiff was also wrong or at least unreliable. In my view, Mr Tedeschi was entitled to regard this as a classic jury question. I am not persuaded that it carries very much weight on the question whether there was an absence of reasonable and probable cause in the prosecution being initiated or maintained.

40. [916]

    The plaintiff submitted that by Mr Tedeschi recognising that there were significant issues as to the admissibility and reliability of the identification evidence, he was admitting to knowing there were fundamental deficiencies in the case that he prosecuted of which the identification evidence was one among many. I do not see that conclusion necessarily follows. In any event, Mr Tedeschi’s evidence was not that there were significant issues as to the admissibility and reliability of their evidence per se. When asked whether he thought the identification of both Ms Byrne and the plaintiff was unreliable he gave the following evidence:

41. [917]

    The defendant submitted that the approach Mr Tedeschi took to the identification evidence was consistent with principle. In the defendant’s submission, the fact that there was no objection to the evidence at trial (and no ground of appeal advanced that it ought to have been withdrawn from the jury's consideration at the instance of the trial judge) reinforces the further submission that it was open to Mr Tedeschi to regard the identification evidence from Mr Melbourne and Mr Martin and the evidence from Mr Doherty, coupled with the body of other evidence that operated directly and by inference to locate Ms Byrne at Watsons Bay for some hours on 7 June 1995 (including, importantly, that her car was parked in Gap Road from at least as early as 6pm on the evening of 7 June 1995) as having the capacity to contribute to proving that the plaintiff was with her at the time she descended to her death from the cliffs at Watsons Bay at around 11:30pm.

42. [918]

    The defendant emphasised (as it did in respect of the evidence of Mr Martin and Mr Melbourne) that defence counsel took no objection to Mr Doherty’s evidence, and further, that the directions requested of the trial judge by defence counsel (all of which were given with the Crown’s agreement) is the strongest indication that, in the atmosphere of the trial, defence counsel did not perceive that any injustice was occasioned to the plaintiff as a criminal accused, either in the way the evidence was adduced or the way it was used by Mr Tedeschi in proof of the Crown case. Ultimately it was the defendant’s submission that it was open to Mr Tedeschi to utilise Mr Doherty’s evidence as part of the complex of evidence relied upon by the Crown to prove its case, and for Mr Tedeschi to advance the submissions in closing the Crown case that relied upon his evidence.

43. [919]

    The defendant emphasised the concessions Mr Tedeschi made in the course of the trial as to the need for the trial judge to warn the jury in accordance with s 165 of the Evidence Act about the dangers of “identification” evidence (including the incorrect identification by Mr Melbourne of the second man as Adam Leigh) thereby bringing into sharp focus the potential unreliability of the identification of the plaintiff as the other man and the warnings his Honour needed to give concerning the displacement effect as regards the identification of the plaintiff at the Coroner's Court (a matter Mr Tedeschi said he was conscious of from his early consideration of the brief of evidence). These concessions are said by the defendant to be inconsistent with a prosecutor focusing single-mindedly on securing a conviction, the allegation central to the plaintiff’s case that he was prosecuted by Mr Tedeschi maliciously. By contrast, the defendant submitted that they are consistent with a prosecutor acting in conformity with his legal and ethical obligations.

44. [920]

    The defendant advanced the further submission that had Mr Tedeschi refused to lead the evidence of identification from Mr Martin and Mr Melbourne (even if it was of reduced probative value), defence counsel may well have been critical of him not leading evidence from all material witnesses. The defendant cited a number of authorities in support of that proposition (R v Kneebone (1999) 47 NSWLR 450; [1999] NSWCCA 279; Richardson v The Queen (1974) 131 CLR 116 at [119]; R v Apostilides (1984) 154 CLR 563 [1984] HCA 38; R v Shaw (1991) 57 A Crim R 425; Tien Tran v Magistrates’ Court of Victoria [1998] VSC 337; R v O’Brien (1996) 66 SASR 396; Geitonia Pty Ltd v Inner West Council [2016] NSWCCA 186). Although the plaintiff did not take issue with the authorities to which the defendant referred, he submitted that this was not a case where the defence would have been critical of the Crown for not calling the identification evidence from Mr Melbourne or Mr Martin. I do not consider that hindsight reasoning of this kind by both parties assists the resolution of the issues that present in these proceedings.

45. [921]

    The plaintiff’s case is, in short, that on a proper analysis, the evidence of the identification witnesses was neither credible nor reliable, and further, that it was so fundamentally flawed that a cautious and prudent prosecutor in Mr Tedeschi’s position would not have relied upon it in his advice to Mr Cowdery as to whether proceedings should be initiated. Further, the plaintiff submitted, the position taken by Mr Tedeschi at trial, in urging a jury to accept the identification evidence as strongly probative of the plaintiff’s guilt, was not a position reasonably open to him.

46. [922]

    The defendant submitted that despite issues in the way the identification evidence was obtained by police (including, but not limited to, what the defendant submitted is the notorious effect of displacement when a single photograph is used for identification purposes), issues which, standing alone, may have impacted adversely on the weight of the evidence as probative of the plaintiff’s guilt, it was open to Det Insp Jacob to rely upon the evidence in the Sufficiency of Evidence Report, as it was for Mr Tedeschi to rely upon it when furnishing his advice to Mr Cowdery and to seek to adduce it as relevant and admissible evidence in the Crown case at trial. I accept that submission as I do Mr Tedeschi’s evidence that he considered the evidence from Mr Melbourne and Mr Martin (and Mr Doherty) to be relevant and admissible, although he said he would not have been surprised were there an objection to the evidence which he might have needed to contend with. In the conduct of the plaintiff’s defence at trial no objection was taken.

47. [923]

    Save for the issue of “the green Bentley” (to which I will presently refer), I also accept that Mr Tedeschi fairly and properly adduced the evidence and made submissions about its weight in proof of the Crown case that the plaintiff was guilty of murder in his opening and closing addresses to the jury.

48. [924]

    Accepting that the previous presentation of a single photograph of the plaintiff had the capacity to undermine the reliability of identification of the plaintiff by Mr Martin and Mr Melbourne at the Glebe Coroner’s Court, and that, in other respects the reliability of their account of seeing Ms Byrne with the plaintiff suffered from the circumstances in which their evidence was obtained by police, I do not accept the plaintiff's submission that the identification evidence was so fundamentally compromised that neither Det Insp Jacob nor Mr Tedeschi should have placed any weight on it, and Mr Tedeschi ought not to have done so were he to have honestly and diligently complied with his ethical obligations as a prosecutor.

49. [925]

    The defendant filed supplementary submissions citing The Queen v Dickman (2017) 91 ALJR 686; [2017] HCA 24 as authority for the proposition that potentially flawed identification evidence, which is assessed to be of low probative value, is nonetheless admissible in a case based on circumstantial evidence in cases where, if the evidence is considered with other evidence probative of guilt, it may have increased probative value. The plaintiff also filed submissions addressing Dickman. In the plaintiff's submission, the decision in Dickman has no relevance to the issues raised in these proceedings, there being nothing in the decision to support the proposition contended for by the defendant that the low probative value of the identification evidence in this case was capable of being elevated by other evidence available to the Crown in proof of the plaintiff’s guilt such as to strengthen its cogency.

50. [926]

    While not a binding authority, I regard the discussion in Dickman of some guidance in resolving, as I have, that the plaintiff has failed to establish that the identification evidence was so fundamentally flawed that the proceedings were initiated against him without reasonable and probable cause for that reason or that the assessment of the evidence by Mr Tedeschi as relevant and admissible revealed a lack of any genuine belief in the capacity of the evidence to support the Crown case.

51. [927]

    In closing submissions, Mr Tedeschi took some time to interleave the evidence of Messrs Martin and Melbourne with the evidence of Mr Doherty, together with a range of other facts emergent from the evidence, to make good his submission that the jury would be satisfied that the plaintiff was with Ms Byrne at Watsons Bay in the afternoon of 7 June 1995.

52. [928]

    This submission refers to the issue of the green Bentley to which I propose to give separate attention. I will include it in this extract for context.

53. [929]

    The sighting of a green Bentley at Watsons Bay on 7 June 1995 was one of a number of aspects of the evidence used to support the Crown case that the plaintiff was present at the Gap on the afternoon and evening of 7 June 1995 with Ms Byrne, there being evidence that Mr Rivkin owned a “green Bentley” that the plaintiff was known to drive.

54. [930]

    In his opening address the Crown Prosecutor said: [656]

55. [931]

    In his statement of 6 August 1996, after describing seeing a woman (who he later described as Ms Byrne) in company with two men at around 1pm and then the same people around two hours later, Mr Melbourne said:

56. [932]

    In his statement of 6 August 1996, also after describing seeing a woman (who he later described as Ms Byrne) in company with two men between 12 and 1pm, Mr Martin said:

57. [933]

    In her statement of 28 March 2008, Ms Munro described seeing a green Bentley on or around 7 June 1995. She said:

58. [934]

    A statement from David Mitchell dated 10 August 2001 was read to the jury. In the statement he said that he was the current owner of a green, Turbo R four-door Bentley previously owned by Mr Rivkin. In his statement he attached pictures of the Bentley and describes the differences between the four-door Turbo R Bentley, the two-door Continental R Bentley and the two-door Corniche Rolls Royce.

59. [935]

    David Cameron gave evidence at trial that he worked for the owner of a two-door Continental R Bentley. He confirmed that the car was one of only three in the world and that it was being restored at McMillan Bentley in Five Dock on 7 June 1995. [660]

60. [936]

    John Singleton gave evidence at trial that between 1994 and 1997 he was the owner of a two-door Continental R Bentley. He gave evidence that as at 7 June 1995 he was living in Bondi and would drive his Bentley between Bondi and Camp Cove to visit his children. He also gave evidence that on occasion he would use a driving service to pick him up or drive him home from work in his Bentley. [661]

61. [937]

    Messrs Martin and Melbourne gave evidence at trial largely consistent with their statements regarding their sighting of a green Bentley, save for the fact that Mr Martin estimated the time he saw the vehicle at around lunch time, whereas in his statement he said it was slightly later in the afternoon. Mr Martin gave evidence that:

62. [938]

    When Mr Martin was cross-examined, he said that the basis for his belief that Mr Rivkin had a two-door Bentley was anecdotal. He gave evidence that he did not recall anyone showing him photographs of any Bentleys that belonged to Mr Rivkin. [663]

63. [939]

    Mr Melbourne gave evidence that the Bentley he saw drove past him as he was standing on the edge of Gap Road. As to the driver of the Bentley, he said:

64. [940]

    Before Mr Tedeschi commenced his closing address, the following interaction occurred with the trial judge:

65. [941]

    In his closing address Mr Tedeschi referred to the green Bentley as follows:

66. [942]

    He concluded by saying:

67. [943]

    Det Insp Wyver gave evidence in these proceedings that at least one of either Mr Martin or Mr Melbourne had mentioned a green Bentley prior to giving their statements of 6 August 1996 but that the 1996 statement was the first time that there was any record made of what they said about it. He said that Mr Samartis had raised a green Bentley in his statement. He said that he did not raise the Bentley with either Mr Melbourne or Mr Martin prior to them both making reference to it in their statements. Det Insp Wyver acknowledged, however, that he knew of the issue of the green Bentley prior to Mr Melbourne and Mr Martin referring to the car in their 1996 statements because Mr Samartis had raised the Bentley in a police interview of 14 June 1996. Det Insp Wyver said he spoke to the plaintiff about a two-door model green Bentley but was told that he drove a four-door model.

68. [944]

    Mr Tedeschi dealt with the issue of the green Bentley in his statements of 13 October 2016 and 16 February 2017. In the February statement he said as follows:

69. [945]

    In his statement of 13 October 2016 he stated that Mr Martin and Mr Melbourne saw two cars: a white Vitara and “a green Bentley (which was one of Rene Rivkin’s cars which Gordon Wood would drive)”. [668]

70. [946]

    Mr Tedeschi said that he was not intending to suggest in his October 2016 statement that the Bentley Mr Martin and Mr Melbourne saw belonged to Mr Rivkin, but rather that they saw “a Bentley”, and that Mr Rivkin also owned a Bentley, which the plaintiff was known to drive. He said that that part of his statement had been “badly expressed”. [669]

71. [947]

    Mr Tedeschi gave evidence that, in his view, the significance of the Bentley was that it provided “significant corroboration of Martin and Melbourne’s identification of [the plaintiff] and Caroline Byrne having been seen at Watsons Bay at around lunchtime on the day prior to her death”. [670] He was cross-examined as follows:

72. [948]

    Mr Tedeschi accepted that during the course of the trial it was clear to him that Mr Rivkin owned a four-door and not a two-door Bentley, and that there was nothing either Mr Martin or Mr Melbourne said in their evidence to suggest that they had seen anything other than a two-door Bentley, or that they might have confused the type or model. In adducing this evidence Mr Tedeschi did not suggest to them that what they had seen was a four-door Bentley rather than a two-door Bentley, nor did he give them the opportunity to reflect upon the certainty of their observations. He gave the following evidence:

73. [949]

    That being so, he was invited to explain the basis upon which he considered he was entitled to advance the submission in his closing address that Mr Melbourne, Mr Martin and Ms Munro may have been mistaken when they said they saw a two-door Bentley and that it may have been a four-door Bentley, as to which he said:

74. [950]

    Mr McClintock then asked the following questions:

75. [951]

    Mr McClintock put the proposition, “what you were doing there was really quite wrong and improper. Do you agree with me or not?” [675] Mr Tedeschi rejected that proposition.

76. [952]

    It is the plaintiff’s case that, in seeking in his closing submissions to use the evidence of Mr Martin and Mr Melbourne about the green Bentley as a link to the plaintiff by suggesting to the jury that the witnesses may have been mistaken about the number of doors, Mr Tedeschi’s submission was contrary to the evidence and deliberately advanced without fairly representing all of the evidence bearing on the question. The plaintiff further submitted that the evidence of Messrs Martin and Melbourne about the green Bentley, in truth, added no weight at all to the identification evidence.

77. [953]

    I am well satisfied that it was not open to Mr Tedeschi to suggest to the jury that they might find that either Mr Melbourne or Mr Martin were wrong or mistaken about the number of doors on the Bentley they saw, whether by suggesting that another person had confused the two vehicles or otherwise. Their evidence simply did not admit of error in circumstances where the difference between the two vehicles were exhaustively ventilated and their capacity to know the difference between the vehicles not challenged by the Crown. However subtle might have been Mr Tedeschi’s suggestion that the green Bentley added weight to the identification of the plaintiff by Mr Martin and Mr Melbourne at Watsons Bay on 7 June 1995, it was not a submission that he should have advanced. Mr Tedeschi’s attempts, in his evidence to justify his right to have made that submission, reflect what I regard as a failure to appreciate a significant error in his forensic reasoning.

78. [954]

    For reasons which I will return to develop later, this issue and others raise real and persisting questions about Mr Tedeschi’s competence as a prosecutor at the plaintiff’s trial. That said, I accept the defendant’s submission that I should treat Mr Tedeschi’s reference to the green Bentley in his closing submissions as an error made in a complex of forensic decisions he made in closing the Crown case, and that I would not conflate that error with proof of malice or treat it as evidence from which I would find an absence of reasonable and probable cause in application of the subjective test for proof of that element.

79. [955]

    I should add for completeness, the identification of the plaintiff by Mr Melbourne and Mr Martin at the invitation of the Crown in the course of the trial in what was described as the "dock identification” was also said by the plaintiff to reduce the probative value of the evidence of identification generally in the course of the trial. While that might be so, it was not put to Mr Tedeschi that inviting a dock identification was a deliberate ploy by him to endeavour to bolster the identification evidence. In fact, there was no cross-examination of him in these proceedings at all about it.

The Crown’s failure to exclude suicide

1. [956]

   The plaintiff’s case, as pleaded as in par 16.8 of the FASC, is that at no time between June 1995 and November 2008 was the defendant, the NSW Police or Mr Tedeschi in a position to adduce evidence to exclude the reasonable possibility that Ms Byrne committed suicide.

2. [957]

   Having concluded that the plaintiff has failed to establish that Det Insp Jacob is a prosecutor for the purposes of the tort, it is unnecessary to refer to his evidence where he addressed that aspect of the plaintiff’s case. It does merit repeating however that, in my view, the Sufficiency of Evidence Report reflected the considerable investigative work undertaken by Strike Force Irondale under Det Insp Jacob’s command, where the question of suicide was addressed comprehensively and, in my view, in a way which supported the conclusion Det Insp Jacob expressed in the report, to the effect that, from a police perspective, suicide had been addressed and excluded. That conclusion was not, of course, binding on Mr Tedeschi. He was obliged to apply a legal analysis to the question whether a prosecution for murder should be commenced where suicide presented as a possible explanation for Ms Byrne’s death and the circumstances in which it occurred.

3. [958]

   The brief of evidence was the primary source of material available to Mr Tedeschi in considering that question. As noted above, I assume, without any evidence which addressed the issue directly, that Mr Tedeschi was also provided with Ms Yule’s report after it was available.

4. [959]

   In his final submissions, the plaintiff sets out (and at considerable length) all of the evidence favouring the plaintiff on the question whether the evidence at trial had excluded suicide as a reasonable possibility. I do not consider it necessary to review that evidence. In large part, it corresponded with the evidence that had been assembled in the course of Strike Force Irondale, making obvious allowances for some variation in the manner in which witnesses expressed themselves when giving their evidence orally and under cross-examination at the plaintiff’s trial. The defendant makes the point in its submissions that the question in these proceedings is not whether the evidence taken as a whole had the capacity to exclude suicide as a reasonable possibility (the view ultimately taken by the Court of Criminal Appeal in reviewing the plaintiff’s conviction under s 6(1) of the Criminal Appeal Act was that it did not), but whether the plaintiff has established that there was an insufficiency in the evidence, viewed prospectively, such as to make good his claim that the prosecution was initiated by Mr Tedeschi and maintained without reasonable and probable cause.

5. [960]

   The defendant also submitted that it is untenable for the plaintiff to urge this Court to find that the available evidence at the time proceedings were commenced was incapable of excluding suicide beyond reasonable doubt, in circumstances where that submission was not advanced by defence counsel at trial and where the trial judge permitted the case to proceed to the jury for verdict. In short, it is the defendant’s position that the question of suicide (with the Crown at all times having assumed the obligation of excluding that as the manner of death beyond reasonable doubt) was a factual issue which it was open to Mr Tedeschi to treat as an issue for the jury’s determination, and that there was nothing in his conduct of the trial that so overwhelmed that issue that it can be said that the proceedings were maintained without reasonable and probable cause.

6. [961]

   In his submissions, the plaintiff points to the evidence at trial of various call charge records which related to calls placed by Ms Byrne on 6 June 1995 to support what he submitted was the inference that she “may have been at the Gap on the Tuesday night at around 7.30pm”, [676] but not in the company of the plaintiff, in support of the submission that she was in some way rehearsing her suicide. That is not a submission I propose to give any countenance to. It does not, in my view, have any relevant bearing on the issues that arise for determination in these proceedings. As I have already made clear, I will not be offering any concluded view as to the manner of Ms Byrne’s death, including whether or not she committed suicide.

7. [962]

   What is relevant is the complaint that Mr Tedeschi used the same telephone evidence for an impermissible purpose by suggesting that the phone call placed by Ms Byrne within the user area of “North Shore” (a catchment area which includes Watsons Bay) supported the possible explanation that the phone call was made from the Gap on 6 June 1995 by the plaintiff by taking:

8. [963]

   It was clear in the evidence before me, although not a matter that was taken issue with by defence counsel at the plaintiff’s trial, that there was no evidence at all that the plaintiff had gone to the Gap and made a call to support his case in advance of killing Ms Byrne that she had committed suicide.

9. [964]

   The plaintiff submitted in these proceedings that there was no other rational explanation for that submission other than that Mr Tedeschi was “attempting to obtain a conviction by deceit”, [678] and that the submission was:

10. [965]

    The defendant complains that was not put to Mr Tedeschi in breach of the rule in Browne v Dunn. While I accept an allegation of that serious kind was not put in terms, it was addressed by Mr Tedeschi in the sense that he conceded in his evidence that he could not offer an explanation as to why he would advance that submission in the absence of any evidence to support it, while at the same time denying he was intending to mislead the jury. It is obviously wholly inappropriate for a Crown Prosecutor to advance any submission that is not properly grounded in the evidence. While I regard the submission as one that might well have excited a strenuous objection from defence counsel for that reason, Mr Tedeschi’s candid admission that it was a submission he could not justify (and, it might be added, in circumstances where it was not pleaded as a particular of malice, giving him the opportunity to consider the issue before giving evidence under cross-examination), and his candid acceptance of the proposition that it was not a submission that should ever have been made, goes some considerable distance, in my view, to treating it as a submission that is more readily explained by Mr Tedeschi’s unintended overreach in the course of developing closing arguments in a complex and factually detailed Crown case.

11. [966]

    The approach Mr Tedeschi took to Ms Byrne’s 1992 hospital admission was the subject of criticism by the plaintiff as part of his challenge to Mr Tedeschi’s conduct of the trial generally. I propose to deal with the competing position of the parties on that issue now in the context of considering the plaintiff’s submission that the Crown had failed to exclude the reasonable possibility that Ms Byrne committed suicide, in support of the finding the plaintiff urges the Court to reach, that proceedings were initiated in the absence of reasonable and probable cause for that reason.

12. [967]

    The plaintiff contends that Mr Tedeschi deliberately omitted to tender the hospital and medical records from Ms Byrne’s hospital admission in April 1992, aware that they undermined the Crown case that the suicide hypothesis for her death in June 1995 had been excluded, and concerned that they would put into question whether the Crown could discharge its evidential obligations of disproving suicide beyond reasonable doubt. In taking that approach, the plaintiff contends that Mr Tedeschi breached his legal and ethical obligations as a prosecutor.

13. [968]

    The fact that Ms Byrne was admitted to hospital in April 1992 after overdosing on prescription sleeping tablets was openly disclosed to investigating police by Ms Byrne’s father early in the police investigation. Although it is not entirely clear, it would seem that that was apparently as a consequence of the plaintiff informing police that Ms Byrne had previously attempted suicide. It is also clear from the proceedings before me that the hospital records relating to that admission, together with a referral letter upon Ms Byrne’s discharge from hospital to Dr Vrjosseck, consultant psychiatrist, and her notes of successive consultations over a period of weeks (inclusive of a reporting letter from the psychiatrist on 10 May 1992 to the referring doctor) were either part of the brief of evidence as served, or disclosed as part of the Crown’s duty of disclosure before the trial, either independently of Ms Yule’s report (where the records are considered by her at some length) or as part of that report.

14. [969]

    The Crown did not call Dr Vrjosseck as a witness in the Crown case or the resident medical officer who referred Ms Byrne for psychiatrist assessment, and did not tender the hospital records. There is no suggestion that Mr Terracini asked that the witnesses be called and that Mr Tedeschi refused that request.

15. [970]

    The way Mr Tedeschi chose to deal with the circumstances relating to the 1992 hospital admission and the course of treatment that followed was to adduce evidence from Ms Byrne’s father as to what Ms Byrne told him were her motivations or intentions in overdosing on sleeping pills and what he otherwise learnt from her doctors.

16. [971]

    Mr Tedeschi opened the Crown case by informing the jury that Ms Byrne’s mother had suicided by ingesting prescription tablets in March 1991 as a result of a surgical cosmetic operation which resulted in severe disfigurement. The Crown went on to say:

17. [972]

    Mr Tedeschi led from that narrative into the circumstances relating to Ms Byrne overdosing on sleeping tablets a year later. As to that issue, Mr Tedeschi said as follows:

18. [973]

    I note the reference to her motivations being “a cry for help” was the conclusion Ms Yule attributed to the treating doctors. Although in his evidence Mr Tedeschi makes no reference to Ms Yule’s report being the source of that submission, it is an available inference.

19. [974]

    Mr Tedeschi went on to submit in his opening address that it was only in April 1992 that Ms Byrne and her brother and sister were told about the circumstances which preceded their mother’s suicide, with Ms Byrne apparently realising then, for the first time, why it was that her mother had never hugged her. He said:

20. [975]

    Mr Byrne’s evidence-in-chief is extracted below. It is largely consistent with the way the Crown opened its case:

21. [976]

    The plaintiff in these proceedings (although not at trial) submitted that Mr Byrne’s evidence was in conflict with the hospital notes and other medical records and that his evidence was “unreliable” for that reason and should have been treated as such by Mr Tedeschi.

22. [977]

    The first issue said to reflect Mr Byrne’s unreliability appears in the discharge letter where, in contrast to Ms Byrne telling her father she did not intend to hurt herself, under “Finding (clinical/investigations)” the following is recorded:

23. [978]

    A further issue emerges from both Dr Vrjosseck’s clinical records and her letter to the referring medical officer of 10 May 1992, which is also said by the plaintiff to put into question Mr Byrne’s evidence that he attended the first session with Dr Vrjosseck and that he (Mr Byrne) thought his daughter was “100 per cent” well.

24. [979]

    In the reporting letter on 10 May 1992, Dr Vrjosseck reported that at interview on 29 April 1992 (the day following Ms Byrne’s discharge from hospital) Ms Byrne said she was “really depressed and had been, for approximately two weeks”. [685] Dr Vrjosseck went on to say:

25. [980]

    Dr Vrjosseck went on to report that a strong family history of suicide had been reported and that her mother committed suicide by overdose. She recorded her finding:

26. [981]

    The notes of consultation, both before the reporting letter and for the weeks that follow through to the last consultation on 27 July 1992, are broadly supportive of Dr Vrjosseck’s insights. It would appear from the notes of consultation that Ms Byrne was also provided with a prescription for anti-depressant medication in the last session. As I understand it, there was no evidence led at trial to suggest that Ms Byrne was maintained on anti-depressant medication from July 1992 through to June 1995, or for any interval of time over that three year period. There is nothing in Dr Pan’s consultation notes to suggest otherwise. Neither is there any evidence of Ms Byrne seeking medical intervention for any resurgence of symptoms of depression after 1992, or seeking a referral to psychological or psychiatric counselling before June 1995. What is clear from Dr Pan’s notes is that in June 1995 Ms Byrne did report feeling depressed and that she had received assistance in the past from a course of counselling, which appears to have prompted Dr Pan’s referral to Dr Sippe.

27. [982]

    At trial, Mr Terracini in cross-examination invited Dr Pan’s confirmation that she was unaware of Ms Byrne’s 1992 admission to hospital in 1992 or the referral to Dr Vrjosseck at that time. Dr Pan also confirmed she was not aware of the medication that had been prescribed to Ms Byrne or of Ms Byrne’s mother’s suicide in 1991. Mr Terracini did not invite Dr Pan’s consideration of the hospital records. Neither did he invite her comment on the relevance, if any, of the history of the 1992 incident, and the way it was treated by Dr Vrjosseck, to the clinical conclusion that Dr Pan reached that Ms Byrne was not a suicide risk in June 1995. That was clearly a course open to him as defence counsel.

28. [983]

    It is the plaintiff’s case, consistent with settled authority (see Whitehorn v R (1983) 152 CLR 657; [1983] HCA 42) and the relevant Prosecution Guidelines, that Mr Tedeschi was obliged to tender the hospital and related medical records in discharge of his independent obligation to adduce relevant, admissible and cogent evidence, irrespective of whether the evidence ran counter to the Crown case and irrespective of any approach defence counsel might take. The plaintiff submitted that the Court would conclude that Mr Tedeschi made a tactical decision not to tender the evidence and to take the approach of adducing evidence of Ms Byrne’s previous hospital admission and the circumstances surrounding it through her father, aware that his account was different from what the medical records reflected and that his evidence was largely to a benign effect on the issue of a predisposition to suicide.

29. [984]

    The plaintiff went on to submit that had Dr Vrjosseck’s report been adduced in evidence, it would have supported the plaintiff’s suicide hypothesis in the sense that it would have been open for the jury to find that in June 1995 Ms Byrne had suffered a relapse of her pre-existing depressive illness and had committed suicide as a way of dealing with it.

30. [985]

    The defendant sought to defend Mr Tedeschi’s decision not to tender the hospital and other medical records by putting in contention whether his failure to do so was in breach of his prosecutorial obligations at all. In the defendant’s submission, Mr Tedeschi’s evidence to the effect that he regarded his obligations to be fully discharged by having ensured that there was full disclosure of the evidence was what the defendant submitted to be “the reality of the situation” in the atmosphere of the trial.

31. [986]

    Mr Tedeschi’s evidence in that regard ought be set out in full:

32. [987]

    The defendant also complains that although it was put to Mr Tedeschi that he had made a conscious decision not to adduce the evidence, it was not suggested to him that he did so for an improper purpose in breach of the cross-examiner’s obligations in accordance with the rule in Browne v Dunn. That complaint is not in my view fairly made in circumstances where it was clear that the point of contention in Mr Tedeschi’s cross-examination on this issue was whether the decision not to adduce the evidence was deliberate and motivated by malice, and he had every opportunity to deal with that allegation.

33. [988]

    The defendant also submitted that even were the Court to be satisfied that, viewed retrospectively, Mr Tedeschi ought to have adduced the evidence, and that his failure to do so was in breach of his legal and ethical obligations, it does not necessarily follow that malice is established, since allowance must be made for his decision being the product of a mistake or a misapprehension of his obligations in the adversarial context that presented at trial, including where the plaintiff was represented by experienced senior counsel.

34. [989]

    This aspect of the plaintiff’s case was not pleaded as a particular of malice, although it was addressed in the plaintiff’s closing submissions. Neither was it the subject of any complaint or consideration by the Court of Criminal Appeal in the appeal judgment. Neither of those matters are, of course, determinative.

35. [990]

    For my part, having regard to the Crown’s obligation to disprove suicide beyond reasonable doubt, I find it difficult to accept that the disclosure of the medical and hospital records is an answer to the separate, although allied duty imposed on Mr Tedeschi as the prosecutor to adduce direct evidence of Ms Byrne’s 1992 admission by either tendering the documents or calling one of the medical witnesses. That said, in circumstances where there appears to be some continuing question as to whether Mr Tedeschi saw the primary records, as distinct from Ms Yule’s summary of them and their effect, I am unable to conclude that he was aware of the full import of their contents at the time of trial which might have allowed for a positive and adverse finding that in failing to adduce them he acted deliberately in breach of his obligations.

36. [991]

    In those circumstances, and although I regard Mr Tedeschi’s continuing justification for not tendering the documents as lacking an appreciation of their relevance, I am not satisfied that his failure to tender them evidences malice on his part. I am inclined to the view that Mr Tedeschi’s failure to tender the hospital and medical records is more satisfactorily explained by a misapprehension on his part that the records should have been tendered than by some improper motive.

37. [992]

    In addition, although it might now be fairly said that the reliability of Ms Byrne’s report to her father that she did not intend to hurt herself by overdosing on prescription sleeping tablets, and his evidence that she was “100 per cent” [689] well at the time of her first attendance upon Dr Vrjosseck might be in doubt, that does not cause me to doubt the reliability and accuracy of all that Mr Byrne says he was told by his daughter as the plaintiff invited me to find. Neither do I regard Ms Byrne’s reported comment in Dr Vrjosseck’s notes – “I feel terrible to see Dad” [690] – as compelling an inference that Mr Byrne was not at her first consultation with Dr Vrjosseck as the plaintiff submits I would find.

38. [993]

    The defendant submitted that it was open to Mr Tedeschi in his closing submissions to the jury to deal with the issue of suicide on the basis that Ms Byrne was unconscious, or at least incapacitated when she was thrown from the cliffs, even if he did not open the Crown case on that basis. It was from that factual premise that the submission was advanced that the jury could readily exclude suicide beyond reasonable doubt because, as Mr Tedeschi put it in his closing:

39. [994]

    The defendant’s submission that Mr Tedeschi’s analysis of the evidence of A/Prof Cross, encapsulated in that submission, was a submission “well open to be put” [692] is, when close analysis is given to Mr Tedeschi’s assessment of A/Prof Cross’s evidence, not one that I accept. That will become clear in the reasons which follow supporting the conclusion that I have reached that there was an absence of reasonable and probable cause in the prosecution of the plaintiff for murder because of the fundamental flaws in the evidence of A/Prof Cross which rendered the evidence in the Crown case on the manner of death wholly deficient. While those deficiencies do not convert into a finding that Ms Byrne committed suicide, they have the practical effect of undermining the capacity of the evidence to positively exclude it as a reasonable possibility.

40. [995]

    It was in the context of what the plaintiff submitted was the objective insufficiency of the evidence to exclude suicide that he submitted the reasonable possibility was open that it was the tide and swell that carried Ms Byrne’s body and lodged it in Hole A. That being the case, in the plaintiff’s submission it follows that on that scenario, the Crown had no evidence as to where Ms Byrne left the cliff edge in the environs of Watsons Bay or when that occurred, particularly as rigor mortis was well advanced when she was found.

41. [996]

    As I understand his submissions, the plaintiff does not seek to make the case that the potential for wave activity to explain Ms Byrne’s orientation in Hole A was a matter that must have been obvious from the materials available to Mr Tedeschi when he initiated the prosecution as a possible explanation for how she arrived at that location. Rather, it was the way the evidence evolved at trial which the plaintiff now suggests presented suicide as a reasonable possibility that the Crown was unable to exclude, such that it was not open for Mr Tedeschi to maintain the prosecution through to verdict having regard to that material.

42. [997]

    Instead of attempting to render that evidence in a narrative way, I propose to extract the plaintiff’s submissions in full:

43. [998]

    The defendant responded to those carefully articulated submissions with its own carefully articulated submissions as follows:

44. [999]

    It is this exchange of submissions that exposes the difficulties this Court is presented with when considering competing submissions of differing degrees of persuasive weight in respect of an issue, while not immaterial, is nonetheless an issue which, on my analysis, is not determinative of the plaintiff’s claim for damages or sufficiently probative of that question to require resolution.

45. [1000]

    Ultimately, the question whether the plaintiff has made good his contention that the proceedings were initiated and maintained without reasonable and probable cause because the Crown was unable to exclude the reasonable possibility of suicide, will not be resolved because of the continuing controversy over the relevance of the meteorological evidence (as to which there appears to me to be a lack of clarity and no scientific certainty to support the proposition contended for by the plaintiff) and even less support for it in the evidence from post-mortem. Instead, the question of suicide merges with what I regard as by far the more persuasive submission, namely that the Crown was unable to mount a case that the manner of Ms Byrne’s death allowed for a conclusion of homicide on the case advanced by the Crown at trial that the plaintiff threw her from the northern ledge to her death. As I see it, that is the more pertinent question. The related question whether the plaintiff has made out a case that he was prosecuted without reasonable and probable cause and maliciously by Mr Tedeschi also remains to be considered.

Mr Tedeschi’s duties as a prosecutor

1. [1001]

   A summary of the applicable law appears in the judgment of McClellan CJ at CL with which Barr and Price JJ agreed in Causevic v R [2008] NSWCCA 238, which has been cited with approval in a number of cases since then including GDD v R; NJC v R [2010] NSWCCA 62 at [21]-[22]; Cittadini v R [2009] NSWCCA 302; Anderson v R [2010] NSWCCA 130 and Gersbach v R [2009] NSWCCA 132.

2. [1002]

   That principled approach acknowledges the DPP prosecution policy and guidelines (which incorporate the relevant Bar Rules) that a prosecutor must not press the prosecution case for a conviction beyond a full and firm presentation of the Crown case and must not, by language or other conduct, seek to inflame or bias the Court against the accused. The Rules binding Mr Tedeschi as Crown Prosecutor at the time of the plaintiff’s trial were Rules 62 to 65 (now Rules 82 to 85). The Rules then in force were made by the Bar Council under s 702 of the Legal Profession Act 2004 (NSW) (now repealed) and were binding on legal practitioners by virtue of s 111 of that Act. I set them out in full below:

3. [1003]

   Section 13 of the Director of Public Prosecutions Act empowers the Director to furnish guidelines to Crown prosecutors in respect of the prosecution of criminal offences. Section 15(2) further provides that prosecutors to whom the Director has furnished guidelines are obligated to comply with them. Relevantly, Guideline 2, which was in force at the time of the plaintiff’s trial, sets out the “Role and Duties of the Prosecutor” as follows:

4. [1004]

   Although Crown Prosecutors are subject to considerable constraints as prosecuting counsel, consistent with the fundamental and underlying prohibition against a prosecutor straining for a conviction, they are nonetheless obliged to advance the Crown case in a firm, even a vigorous manner, and to do so fearlessly in the interests of the Crown as a representative of the community.

5. [1005]

   The plaintiff submitted that Mr Tedeschi’s improper conduct as a prosecutor is evidenced by multiple occasions where he intentionally misled the jury in his closing address as to certain aspects of the evidence and what it was capable of proving, and other occasions where he deliberately failed to adduce evidence which he was obliged to adduce in the Crown case. The plaintiff submitted that what the Court would find as multiple examples of prosecutorial misconduct of this kind is available to prove both elements of the tort of malicious prosecution, in the sense that it is conduct which both demonstrates a lack of Mr Tedeschi’s subjective belief in the sufficiency of the evidence to maintain the Crown case to verdict and his malice (see Brain at 379 (per Dixon J); Johnston at [42]-[43] (per Basten JA); State of New South Wales v Landini [2010] NSWCA 157 at [57]-[58] (per Macfarlan JA)).

6. [1006]

   When it is submitted that a prosecutor has infringed proper bounds in closing submissions, it is necessary to consider what are said to be instances of that occurring, but to do so in the context of the Crown case and the closing address viewed as a whole. I am mindful that Mr Tedeschi’s closing address extended over three days. I am also conscious that it was a closing address comprehending a vast complex of evidence adduced in a trial which extended over three months and which required not simply an assimilation of objective facts, but the inferences that the Crown contended could legitimately be drawn from those facts in advancing the Crown case that guilt had been proved beyond reasonable doubt.

7. [1007]

   In the defendant’s closing submissions, criticisms were levelled at the plaintiff’s approach to analysing Mr Tedeschi’s closing submissions and what is said to be his misconduct in the way in which the Crown evidence was adduced. The defendant submitted that the plaintiff’s overall challenge may be dissected as follows:

8. [1008]

   The defendant further submitted that the repeated assertions in the plaintiff’s submissions that isolated aspects of the evidence were “worthless” or “of no evidentiary value” (the submission advanced when addressing the “identification evidence” in particular) also reflects an impermissible approach to the discipline required of the plaintiff’s counsel.

9. [1009]

   Those criticisms are, in my view, well made. The defendant’s submissions should be extracted in full (emphasis in original):

10. [1010]

    That is not to say that the plaintiff’s identification of particular aspects of Mr Tedeschi’s conduct as constituting a breach of prosecutorial standards is without substance.

11. [1011]

    Not all of the various aspects of Mr Tedeschi’s conduct as prosecutor that were the subject of criticism by the Court of Criminal Appeal were ultimately relied upon by the plaintiff in his final submissions as a source of proof of either of the two elements of the tort that are in dispute, and only some were pleaded in the FASC as particulars of malice. Additionally, the plaintiff’s final submissions were not structured referable to the particulars of misconduct pleaded as constituting malice in various sub-paragraphs of par 16 of the FASC. Instead they addressed each of several discrete aspects of what was alleged to be Mr Tedeschi’s misconduct as to which he was cross-examined, inviting a finding of misconduct from which malice could be inferred not only by what is said to be proven instances of misconduct (some more egregious than others) but Mr Tedeschi’s justification of his conduct in his evidence in these proceedings.

12. [1012]

    In defence of the case mounted against Mr Tedeschi as prosecutor, the defendant relied upon three statements: the first dated 13 October 2016, the second dated 9 February 2017 and a third dated 16 February 2017 (“the second February statement”) in which Mr Tedeschi addressed, at considerable length, the way the Crown case was structured by him and the form and content of his opening and closing submissions.

13. [1013]

    Because the second February statement was structured as a response to the matters relied upon by the plaintiff in his Reply as attracting issue estoppel in his Reply, a redacted version was read in the defendant’s case to meet the plaintiff’s case that as the Crown Prosecutor at the plaintiff’s trial, Mr Tedeschi conducted the proceedings maliciously and in the absence of reasonable and probable cause. The second February statement and the two earlier statements were read and received into evidence on the same basis.

14. [1014]

    It is impossible to cover all of what Mr Tedeschi asserted in his statements and in his evidence justifying the approach he took to the prosecution of the plaintiff, or to refer to the expansive explanation he gives for maintaining the belief that he was entitled to structure the Crown case and to put his closing submissions concerning the probative force of the evidence in the Crown case as he did in seeking to persuade the jury to return a verdict of guilty. In the concluding paragraph of the second February statement, he said as follows:

15. [1015]

    That contention was under direct challenge by the plaintiff.

16. [1016]

    At the outset, it is necessary to restate a number of findings made earlier in this judgment, in particular the consideration I have given to whether A/Prof Cross should be regarded as a prosecutor.

17. [1017]

    Despite the full complement of throw tests conducted by A/Prof Cross extending from October 2003, when Hole B was thought to be the landing point through to June 2004 when further throw tests were conducted after Hole A was designated, and then again in October 2004 when the question of a correlation between a thrower’s bench press ability and throwing strength was under consideration, A/Prof Cross conducted no throw tests where a volunteer resisted being “spear thrown”. In fact, he conducted no tests at all where the thrower was required to accommodate any movement of the volunteer which might have impeded or restricted his execution of the “spear throw”.

18. [1018]

    It follows that A/Prof Cross had no information upon which he could make any assessment of the impact on launch speed were Ms Byrne to have resisted being lifted to the plaintiff’s shoulder height, or were she to have struggled against his hold under her chest and between her legs before she was thrown to her death over the edge of the cliff. It also follows that there was no objective evidence available to Mr Tedeschi when he furnished his advice to Mr Cowdery; when he led A/Prof Cross at committal and when he opened the Crown case to the jury referable to which he could invite A/Prof Cross to consider whether his conclusion that Ms Byrne must have been spear thrown from the cliff at 4.5 metres per second to have landed at Hole A should be qualified by the potential for her to have been conscious and struggling at that time. In addition, there was no evidence upon which Mr Tedeschi could have invited A/Prof Cross to offer any opinion as to whether, were Ms Byrne to have offered resistance to being lifted and thrown, that might have had a material impact on the speed at which she was launched and thrown to her death.

19. [1019]

    Although Mr Tedeschi’s advice to Mr Cowdery was not tendered in the proceedings, his opening address, the questions he asked A/Prof Cross in chief and in re-examination and his closing address were in evidence. It is this material that the plaintiff relies upon as the primary source of what he submitted are the exposed flaws in the Crown’s reliance on the evidence of A/Prof Cross to support a charge of murder, and the tendentious approach taken by Mr Tedeschi to adducing his evidence and making submissions about it.

20. [1020]

    It is difficult to conceive that the lack of objective evidence of the kind referred to above was not obvious to Mr Tedeschi when he advised Mr Cowdery in February 2006 that a charge of murder should be laid (or very close to the date that he furnished that advice), given that one of the rhetorical questions A/Prof Cross posed and answered in his fifth report was: “Was Caroline Byrne conscious when she was thrown?”. He answered that question as follows:

21. [1021]

    Mr Tedeschi gave evidence in the proceedings that A/Prof Cross’s identification of the “difficulties and dangers” of throwing an unconscious woman did not concern him. He said that in his advice to the Director and in his preparation for trial, he simply ignored the fact that Ms Byrne may have been unconscious when she was thrown. He said he took that approach because he regarded that aspect of A/Prof Cross’s fifth report as conjecture and that he could and should ignore it. He gave evidence that he made the assessment that A/Prof Cross’s “core findings” remained valid despite him venturing unsolicited views about the “difficulties and dangers” of throwing an unconscious woman, as one amongst many unsolicited views he volunteered about a range of factual matters as to which he had no knowledge and which did not call for the expression of expert opinion in any event.

22. [1022]

    A/Prof Cross’s “core findings” was a term that did not find expression in A/Prof Cross’s reports, or in his evidence at trial. It was a term utilised by Mr Tedeschi for the first time in these proceedings to describe what he considered as findings core or fundamental to A/Prof Cross’s ultimate opinion that Ms Byrne must have been thrown from the cliff, namely that she could not have landed where she was found unless she was thrown. Mr Tedeschi regarded this conclusion as a conclusion A/Prof Cross described as based on a “simple high school calculation”. [697] These “core findings” were repeatedly referred to by Mr Tedeschi’s evidence to justify the criticisms levelled at him by Mr McClintock for failing to adequately or, as the plaintiff would submit, failing altogether to ensure that all and any qualifying assumptions were led from A/Prof Cross consistent with a prosecutor’s obligations when adducing evidence from an expert witness.

23. [1023]

    Mr Tedeschi gave evidence that it was these “core findings” that he intended to rely upon in proof of the Crown case at trial, both when he furnished his advice to Mr Cowdery and when he conducted the trial on behalf of the Crown. He gave the following evidence in cross-examination:

24. [1024]

    In his statement of 13 October 2016, Mr Tedeschi said of A/Prof Cross’s evidence the following:

25. [1025]

    It does not seem to me to be to the point that A/Prof Cross was not specifically asked by Det Insp Jacob or Mr Tedeschi to address the question of Ms Byrne’s state of consciousness or capacity at the time she was thrown when he furnished his fifth report, or that he had no qualifications to answer that question, or any of the other five questions he posed and answered in that report even were he asked to consider them.

26. [1026]

    Neither does it seem to me to be to the point that at least part of the answer to the first question extracted above was based upon conjecture or surmise, since A/Prof Cross made it clear that he had not conducted any experiments to enable him to offer any reasoned analysis of the impact of a struggling, non-compliant volunteer on the successful execution of the “spear throw”, including, most importantly, the potential for movement or resistance to impact on the speed at which the volunteer was launched.

27. [1027]

    What is to the point is that A/Prof Cross identified in his fifth report that it would be “more difficult and more dangerous” [699] to throw Ms Byrne over the cliff were she conscious and resisting at that time, and that Mr Tedeschi was aware of his views in that regard. What is also to the point is that the obligation to make an assessment of whether those difficulties and dangers operated to qualify A/Prof Cross’s ultimate opinion as to the mechanism by which Ms Byrne descended from the cliff top at the Gap to her death rested exclusively on Mr Tedeschi as the Crown Prosecutor.

28. [1028]

    In A/Prof Cross’s sixth report of 8 March 2006 (prepared after a conference with Mr Tedeschi on 15 February 2006 in which he requested that A/Prof Cross prepare a report, in the form of a summary of his experiments and the findings generated from them) there is no reference at all to the results of his “spear throw” tests having no application where the subject is struggling, and only a passing reference to the so called “limp throw test”.

29. [1029]

    Mr McClintock put to both A/Prof Cross and Mr Tedeschi in cross-examination that A/Prof Cross’s reported views concerning the difficulty in throwing a struggling person in his fifth report was removed from the further summary (sixth) report from which the Court was invited to make the following related findings: Firstly, that A/Prof Cross was disinterested in ensuring that his summary report was expressed in appropriately qualified terms (inclusive of the fact that the test results had no application to a struggling woman). Secondly, because Mr Tedeschi knew that A/Prof Cross’s conclusions must have been qualified by the test results having no application to a struggling woman, and because he also knew there might have been no adequate foundation for their application to an unconscious (limp) woman, A/Prof Cross’s evidence should have been adduced by him subject to those qualifications. From that the Court was invited to find that Mr Tedeschi intentionally omitted any reference to either qualification when he called A/Prof Cross as an expert witness at committal and at trial, conscious that the Crown could not prove manner of death without his evidence and that the Crown’s obligation to disprove suicide beyond reasonable doubt was also made much more difficult.

30. [1030]

    The further question is whether the inference can safely be drawn that Mr Tedeschi knew, at the latest as the trial progressed, that the expert evidence from A/Prof Cross and Prof Elliott was insufficient to invite the jury to return a verdict of guilty, and that he maintained the prosecution through to verdict with that knowledge. If that finding is open, then the plaintiff’s case may be even further advanced since a finding that Mr Tedeschi knowingly maintained the proceedings without reasonable and probable cause may support the further finding that he did so maliciously.

31. [1031]

    In reviewing the way Mr Tedeschi adduced evidence from A/Prof Cross as to the method of throwing he had concluded was the only method that would achieve the launch speed necessary for Ms Byrne to land in Hole A, it is clear no questions were asked inviting him to comment on the significance of the volunteer having been directed to cooperate with the thrower in order to facilitate the best execution of the “spear throw”, or whether that had the potential to influence launch speed.

32. [1032]

    Despite a raft of criticisms concerning the approach A/Prof Cross took to his role as an expert forensic consultant, and what I am satisfied was an abject failure on his part to meet his independent obligations as an expert witness, the plaintiff failed to establish that A/Prof Cross is a prosecutor to whom liability for the tort of malicious prosecution might attach. What is laid bare by that finding is that it is for the plaintiff to establish that the obligation to ensure that A/Prof Cross’s evidence was adduced in such a way so as to make it clear to the jury that his conclusion that Ms Byrne was “spear thrown” to her death was qualified by his assumption that she did not struggle against the plaintiff as her attacker, rested on Mr Tedeschi as the Crown prosecutor at the plaintiff’s trial and that his failure to make that clear evidences, in whole or in part, his tortious conduct as a prosecutor.

33. [1033]

    It is worth extracting in full the way in which A/Prof Cross described the throw technique when he was invited by Mr Tedeschi to describe the “spear throw” to the jury and demonstrate it.

34. [1034]

    In the questions that followed Mr Tedeschi asked A/Prof Cross to confirm that the “spear throw” tests undertaken to measure launch speed involved, primarily, two throwers, being Male A and Male B, and that the test results generated from their test throws were as reported by him in his second report. When asked about those tests, A/Prof Cross gave the following evidence:

35. [1035]

    Although it is implicit in what A/Prof Cross described as “a reasonable technique” that it did not involve the throwers stumbling (by a feigned trip) on the approach to the edge of the pool, and that the person thrown was not twisted as she was held at shoulder height and projected forward, nothing was led from A/Prof Cross (and he did not make it clear in his evidence) that all remaining tests (save for the single “limp throw test”) involved the volunteer allowing herself to be lifted at the thrower’s shoulder height before bracing herself to be thrown and then orienting her body as she was launched with her arms forward of her shoulders to achieve a head first dive into the water. Neither was there any evidence led from A/Prof Cross to make it clear that the single volunteer who was lifted to the above shoulder position of the thrower in the so-called “limp throw test”, although simulating a certain limpness in her arms and legs, nonetheless cooperated with being lifted from a standing position to the thrower’s shoulder and that she also braced herself so as to dive into the water head first when she was thrown. The “limp throw test” involved only a single throw, third in a sequence of four throws by Male A on 24 June 2004, the result of which was reported in A/Prof Cross’s second report of 26 July 2004 (see summary at [1067]). It was the only “spear throw” test of any kind undertaken by A/Prof Cross that might have simulated the throwing of an unconscious subject.

36. [1036]

    The adequacy of the single “limp throw test” to assess the impact of a wholly non-compliant subject on launch speed, and the Crown’s entitlement to rely on A/Prof Cross’s evidence that the single test was sufficient to allow for the conclusion expressed by A/Prof Cross that it had no impact on launch speed, was the subject of critical review in the proceedings on appeal and the subject of further interrogation in these proceedings.

37. [1037]

    In response to the allegation that he led evidence from A/Prof Cross selectively, Mr Tedeschi maintained that at the time of rendering his advice to the Director (that is, after conferring with A/Prof Cross and after having read and considered all his reports including, in particular, his fifth report of 8 February 2006) he did not appreciate that the “spear throw” technique (which he accepted was foundational to the Crown case theory as the mechanism by which Ms Byrne was thrown from the northern ledge to her death) had no application if Ms Byrne were conscious and resisted being raised to the plaintiff’s shoulder height and thrown from the cliff after a 4-metre run-up. The plaintiff submitted that I would reject Mr Tedeschi’s evidence that he did not appreciate that fact as untenable.

38. [1038]

    It is important to set that part of Mr McClintock’s lengthy cross-examination of Mr Tedeschi where he dealt with this issue in full:

39. [1039]

    Dealing with the reference in A/Prof Cross’s fifth report to the “struggling woman”, he went on to say:

40. [1040]

    Mr Tedeschi was later asked whether, accepting that he was under a duty to present the Crown’s evidence accurately and fairly, and that serving the full complement of A/Prof Cross’s reports did not alter that obligation, it occurred to him that a significant qualification to A/Prof Cross’s conclusions was that no experiments had been undertaken where a volunteer resisted, or simulated any resistance to being thrown. Mr Tedeschi again rejected any suggestion that that did occur to him and that he deliberately failed to adduce that evidence. He denied that he saw it as essential that he do so. The plaintiff invites the Court to find that as untenable.

41. [1041]

    Before considering whether the plaintiff has established that Mr Tedeschi’s approach to adducing evidence from A/Prof Cross was not one that was reasonably open to him, and before considering whether the plaintiff has also proved that Mr Tedeschi knew that A/Prof Cross’s evidence was an insufficient basis upon which to invite the jury to conclude that Ms Byrne was murdered, what cannot be overlooked is that in his opening address Mr Tedeschi alerted the jury to an issue which he expressed in terms very similar both to the rhetorical question A/Prof Cross posed for himself in his fifth report and his answer.

42. [1042]

    Mr Tedeschi posed the question to the jury in the following way, “Was Caroline conscious or unconscious when she was thrown to her death?” which he answered by saying, “[w]ell we don’t know”. [704]

43. [1043]

    Mr Tedeschi went on to submit:

44. [1044]

    That submission bears a marked similarity to the consideration A/Prof Cross gave to the impact of a “struggling woman” on the successful execution of a “spear throw” in his fifth report (extracted above). Mr Tedeschi’s opening submission to the jury is also difficult to square with his evidence in these the proceedings that he completely ignored A/Prof Cross’s reference in his fifth report to the “dangers and difficulties” associated with throwing a struggling woman from a cliff altogether, and did not consider himself obligated to ask A/Prof Cross any questions about it.

45. [1045]

    That raises the question whether his evidence that he ignored the fact that A/Prof Cross had not conducted any tests where a volunteer was instructed to resist being thrown was truthful. It also raises the question whether he gave truthful evidence when he said he did not see any need to lead that evidence in order that the jury would understand that the experimental environment and the results generated from it necessarily qualified the conclusions A/Prof Cross reached.

46. [1046]

    In Mr Tedeschi’s closing address the position he articulated on behalf of the Crown had changed. In his closing submission he invited the jury to proceed to consider their verdict on the basis that Ms Byrne was unconscious, or at least incapacitated (or likely to have been), when she was thrown from the cliff edge. In inviting the jury to proceed on that basis, Mr Tedeschi referred to a number of aspects of the evidence, or inferences which he invited the jury to draw from the evidence, which, he submitted, compelled the conclusion that Ms Byrne was likely to have been in that physiological state at that time.

47. [1047]

    In answering the plaintiff’s case in these proceedings that he changed the Crown case in this respect because of what he was always aware were the difficulties and dangers of “spear throwing” an unconscious and non-compliant woman (a particular of professional misconduct in par 16.64 of the FASC), Mr Tedeschi gave evidence that in advancing that submission to the jury in closing he was merely “putting the submission” that the Crown did not know whether Ms Byrne was conscious or unconscious more directly.

48. [1048]

    In his October 2016 statement, in defence of the position he took, he said as follows:

49. [1049]

    In inviting the jury to accept the evidence of Dr Duflou (a witness called by the defence) Mr Tedeschi must be taken to have impliedly acknowledged that if a person were conscious when thrown from a height off a cliff, they would instinctively extend their arms, and, if they were falling head first, massive injuries to the arms and hands would be inevitable. Since it remained the Crown case at the end of the trial that Ms Byrne landed head first in Hole A, and that she could only have been spear thrown to that position, because she could not have jumped (the so-called “core finding” of A/Prof Cross), Mr Tedeschi submitted that the inevitable conclusion the jury would reach (accepting Dr Duflou’s evidence) was that Ms Byrne was unconscious when she was lifted and thrown to her death. Mr Tedeschi also submitted that the jury would be satisfied that Ms Byrne would not have voluntarily allowed herself to be ushered or steered over the safety fence onto the northern rock platform at night, in the cold and during the violent argument. That, he submitted to the jury, “defies rationality”. Instead, he urged the jury to accept that Ms Byrne must have been lifted over the fence (incidentally the view A/Prof Cross expressed in his fifth report) and, were she fully conscious at that time, she would have been screaming for longer than the duration of the single short scream heard by the fishermen and Mr Doherty. To the contrary. Mr Tedeschi submitted:

50. [1050]

    Mr Tedeschi went further and submitted that the short scream that was heard by the fishermen and Mr Doherty was not as Ms Byrne was thrown, but a scream in the course of the plaintiff rendering her incapacitated or unconscious.

51. [1051]

    Save for Dr Duflou’s evidence (which it might be said was obvious in any event), the balance of what Mr Tedeschi relied upon in support of the positive proposition in his closing address that, in all probability, Ms Byrne was unconscious when she was thrown to her death was available when he advised Mr Cowdery in February 2006 that criminal proceedings should be commenced and when he opened the Crown case to the jury.

52. [1052]

    The further question that necessarily presents for the purpose of these proceedings is what evidence the Crown had available to it when Mr Tedeschi closed his case to the jury to make good the proposition that an unconscious person in the condition he invited the jury to accept was likely to be Ms Byrne’s condition before she was thrown from the cliff, could not only be lifted and held at shoulder height in the way described by A/Prof Cross in his evidence (namely, under the chest and between the legs), but that her limp and unresponsive body could have been propelled at sufficient speed to have landed head first in Hole A.

53. [1053]

    I regard Mr Tedeschi’s evidence that the absence of any evidence bearing on that scenario did not concern him because Ms Byrne must have been thrown because she could not have jumped the distance to Hole A or Hole B as unpersuasive. For the Crown case to be based on the bald assertion that Ms Byrne was “thrown” to her death was never an adequate basis to make good the Crown case that the plaintiff, acting alone, threw her. A/Prof Cross’s evidence was critical to the Crown being able to prove the precise manner or the mechanism of the act that caused her death. Were it the Crown case simply that she was thrown off the cliff, A/Prof Cross’s evidence that the “spear throw” by a single strong man was the only technique that could replicate her landing in Hole A by experimentation would have been otiose.

54. [1054]

    Leaving to one side consideration of the plaintiff’s submission that Mr Tedeschi changed the Crown case when he invited the jury to accept that Ms Byrne was unconscious when she was lifted and thrown to her death, and leaving to one side consideration of the plaintiff’s further submission that Mr Tedeschi changed the Crown case still further by implicitly abandoning the “spear throw” technique and renaming the throw as a “shotput throw” (see par 16.61 of the FASC as to which see later at [1072]), it is clear that Mr Tedeschi did not refer in his closing address to the effect of Mr Terracini’s cross-examination of A/Prof Cross or the cross-examination of Prof Elliot.

55. [1055]

    Although Mr Tedeschi did not invite A/Prof Cross to address whether the ultimate conclusions he derived from his poolside tests should be qualified by inviting him to assume, as a working hypothesis, that Ms Byrne may have been conscious and struggling at the time she was raised to shoulder height and “spear thrown” to her death, or, conversely, that she was unconscious and limp at that time, Mr Terracini took up the issue in cross-examination. In fact, it was not until cross-examination that A/Prof Cross was asked and openly acknowledged that whilst there would likely be a difference to the throw speed were a person struggling or resisting being thrown, he was not able to resolve the extent of the difference; nor was he qualified to resolve it:

56. [1056]

    Later in cross-examination when he was asked what attempt he made in the poolside throw tests to account for the fact that Ms Byrne may not have wanted to be picked up and thrown (that is, that there was a struggle even before she was raised to shoulder height) he referred counsel (in an unresponsive way) to the “limp throw test”, as to which he said that the volunteer’s body in that configuration “made no significant difference to the throw speed”. He said:

57. [1057]

    In re-examination, the impact of a struggling person was addressed:

58. [1058]

    A/Prof Cross was also asked in re-examination:

59. [1059]

    That issue was not further examined, neither were the jury enlightened as to the nature or extent of the “major impact” on running speed were the plaintiff running towards the edge of the northern ledge 30 metres above the rock floor holding Ms Byrne aloft at shoulder height in complete darkness preparing to “spear throw” her to her death.

60. [1060]

    In his evidence, Prof Elliott confirmed what A/Prof Cross made clear in re-examination: in effect, that the ideal poolside conditions were in no way comparable to the reduced light and the unevenness of surface that was assumed to obtain on the cliff top on 7 June 1995. After taking those environmental factors into account, Prof Elliott concluded that both the running and diving results (and it must be assumed the throw speed after a run-up) would be different in the actual circumstances of Ms Byrne’s descent, if for no other reason than an uneven surface would make the approach to the edge more difficult. In cross-examination, Prof Elliott was asked (hardly surprisingly) what effect, in his view, a struggling person would have on the ability of another to throw that person at speed, to which he said:

61. [1061]

    Mr Tedeschi’s evidence in these proceedings concerning this aspect of Prof Elliott’s evidence is telling. After confirming that Mr Tedeschi did not re-examine Prof Elliott, Mr McClintock asked the following questions preparatory to that issue:

62. [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.

63. [1063]

    The plaintiff further submitted that A/Prof Cross’s single “limp throw test” did nothing to support the proposition that an unconscious person could be thrown the distance to either Hole A or Hole B, and that the Crown case could not be maintained through to verdict for that reason.

64. [1064]

    As noted, the logical corollary to the recast Crown case in Mr Tedeschi’s closing address is that her body would have been limp and unresponsive when she was raised to the plaintiff’s shoulder height in preparation for the “spear throw”; when she was carried by him at shoulder height over the 4-metre run-up to the edge of the cliff and as she was thrown over it.

65. [1065]

    A/Prof Cross was cross-examined at length in these proceedings about the sufficiency of the single test to support his concluded view that the “limpness” of the female volunteer did not have any material impact on the speed at which she was launched. The following lengthy extract exemplifies his approach and what I consider its obvious flaws. After confirming that, despite the request from Mr Tedeschi in November 2004 he conducted no further tests to simulate an unconscious woman, he gave the following evidence:

66. [1066]

    Mr Tedeschi was also cross-examined about the extent to which he considered, and apparently accepted, that the single “limp throw test” did not derogate from the integrity of the conclusion A/Prof Cross expressed in his second report (and in each of the reports that followed) that the only explanation for Ms Byrne’s descent to her death (irrespective of whether she landed at Hole A or Hole B) was that she was thrown head first in a “spear throw” by a strong man.

67. [1067]

    It was put to Mr Tedeschi in cross-examination that after having read and considered A/Prof Cross’s second report, he was fully aware that the single “limp throw test” was an unsatisfactory basis upon which to support the proposition that an unconscious woman could be thrown to Hole A or Hole B. He denied recognising there was any deficiency. He gave the following evidence:

68. [1068]

    It is useful in considering Mr Tedeschi’s attitude to the adequacy of the “limp throw test” to use as a starting point, when the hypothesis that Ms Byrne might have been thrown limp and unconscious from the cliff was apparently first raised with A/Prof Cross. Reference has already been made to the issue being of obvious concern to Mr Tedeschi given the requisitions (extracted above). The defendant submitted that a requisition sent by Ms Turner should not be taken to reflect anything about the knowledge or state of mind of Mr Tedeschi as the Senior Crown Prosecutor. Whilst that might be true as a general proposition, the terms of the requisitions, their timing and the clarification Mr Tedeschi insisted be made to them leaves no reason to doubt Mr Tedeschi knew that the requisitions had been sent and had endorsed their terms.

69. [1069]

    Even when invited in the proceedings to review the video recording of the “spear throw” tests, Mr Tedeschi again repeated what he claimed was his view at the time of advising Mr Cowdery that a charge of murder should be brought (and, it must be inferred, at the time of adducing the evidence from A/Prof Cross at committal and trial), namely that the “limp throw test”, and the throw speed that was generated in that single test, bore a sufficient relationship to throwing Ms Byrne unconscious or disabled to her death and that it was unnecessary to seek any further elaboration of the test, or to draw the jury’s attention to the fact that it was a single test and one in which the volunteer had actively braced herself as she was launched. In short, Mr Tedeschi maintained in cross-examination the position attested to in his statement of October 2016 that he considered Ms Byrne’s state of consciousness or capacity (whether she was conscious, unconscious, or some state in between) no impediment to advancing the Crown case theory that she was “spear thrown” to her death.

70. [1070]

    In furnishing his second report through to his evidence at trial, and in his evidence in these proceedings, A/Prof Cross held trenchantly to his opinion that the single “limp throw test” he undertook at poolside in June 2004 was an adequate basis for him to conclude that were Ms Byrne unconscious at the time that she was lifted and thrown from the cliff top, the launch speed necessary for her head to reach Hole A could nonetheless be achieved. As A/Prof Cross expressed it, from that single test he determined there was no reason to suppose that if Ms Byrne were unconscious, her physiological state or comportment would have any bearing at all on the speed at which she could be launched by the putative strong man from shoulder height in the “spear throw” he described, despite only one test, the third of four throws, purporting to simulate that scenario.

71. [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.

72. [1072]

    In addition to what the plaintiff contends was the inappropriate and unfair use Mr Tedeschi made of his closing submissions to change the Crown case by inviting the jury to accept the likelihood that Ms Byrne was unconscious at the time she was thrown to her death, the plaintiff submitted Mr Tedeschi also changed the presentation of the “spear throw” to a “shotput throw” to overcome difficulties he knew had been revealed in the spear throw mechanism.

73. [1073]

    The plaintiff contended that the “spear throw” was represented by Mr Tedeschi in closing submissions, not only in a different light, but referable to a technique that was nothing like the “spear throw” technique that A/Prof Cross had demonstrated in his evidence, and nothing like the throw technique that A/Prof Cross had utilised in the various poolside throw tests.

74. [1074]

    After inviting the jury to accept that the evidence had established that Ms Byrne impacted on the rocks headfirst into Hole A, Mr Tedeschi reminded the jury that A/Prof Cross’s evidence was that Ms Byrne would not have been able to dive that distance, even from the closest launch point on the northern ledge, but that he had also been at a loss for some time as to how anyone could have thrown Ms Byrne that distance. The submission was then put in the following way:

75. [1075]

    In his evidence in the proceedings, Mr Tedeschi was invited to accept the proposition that the action he described in the extract above has “absolutely nothing to do with any test done by A/Prof Cross”. Mr Tedeschi gave the following explanation:

76. [1076]

    Mr McClintock put to Mr Tedeschi that by utilising the concept of a “shotput throw” technique he misrepresented A/Prof Cross’s tests to overcome the problem that had been revealed with the “spear throw” technique. He rejected that proposition and said, in response:

77. [1077]

    Mr Tedeschi accepted (as is self-evident from the video evidence of the poolside tests exhibited in the trial) that it was no part of the Crown case, and was no part of the experiments conducted by A/Prof Cross, that Ms Byrne was thrown with one hand – the conventional technique for throwing a shotput. As Mr Tedeschi made clear in his evidence, and again as is self-evident, A/Prof Cross’s evidence and his submissions to the jury about it, referred to a technique that required the thrower to use both hands.

78. [1078]

    In defence of the proposition, implicit in Mr McClintock’s cross-examination, that he was the source of the asserted similarity between the “shotput throw” and the “spear throw”, Mr Tedeschi gave evidence that he recalled that analogy being used by A/Prof Cross himself, although, understandably, Mr Tedeschi had no immediate recall of where in A/Prof Cross’s reports that reference was made.

79. [1079]

    On my interrogating the parties as to whether that was evidence led from A/Prof Cross at trial or referred to in one or more of his furnished reports, it became clear that the evidence was first led from A/Prof Cross at committal. His evidence at committal was read onto the record by Mr McClintock and the following questions asked about it.

80. [1080]

    Further, in his evidence-in-chief at trial Mr Tedeschi asked the following questions:

81. [1081]

    I am not persuaded that Mr Tedeschi’s incorporation of the shotput throw in his closing submissions constituted a change in the throwing action or technique that was fundamental to the Crown case theory that Ms Byrne was thrown to her death. That said, it was a submission that technically strayed beyond the evidence led at trial, since none of the expert witness called by the Crown or the defence were invited to align the physical action of a shotput throw, or the muscle groups that are engaged in executing that throw technique, with the “spear throw” that A/Prof Cross had designated as the only throw that could achieve the required distance. It must fairly be said, however, that on reading the transcript of Prof Elliott’s evidence, he was permitted to demonstrate such an action.

82. [1082]

    In the plaintiff’s final submissions, it was not suggested that Mr Tedeschi’s invocation of a change in technique from a “spear throw” to a “shotput throw” was responsive to the evidence Prof Elliott had given in cross-examination where, in drawing an association (cf an actual correlation) between bench press ability and throw strength, he said:

83. [1083]

    I note that although Mr Tedeschi was asked in cross-examination to justify his utilisation of an analogy between the throw by which Ms Byrne was launched to her death and a child being launched skyward in a swimming pool by a parent, that was ultimately not the subject of any criticism in the plaintiff’s final submissions. Mr Tedeschi gave evidence that he utilised that analogy in order to convey to the jury why it is that a person using shoulder and upper chest muscles, would be able to throw a person a great distance by reference to something with which they might be assumed to be familiar. Again as is clear from Mr Tedeschi’s evidence, he maintained the position that despite his elaborated description of a shotput thrower and the necessary engagement of all muscle groups to execute that throw, he only ever intended that the analogy be deployed to emphasise the shoulder and upper chest strength in the thrower, which he maintained was properly sourced in A/Prof Cross’s association between bench press ability and throw strength.

84. [1084]

    It is the plaintiff’s case in these proceedings (as it was when he appealed his conviction) that the asserted correlation between the strength of a male thrower referable to his capacity to bench press a given weight, and the ability of a man with that capacity to throw a given distance (relevantly from the northern ledge to reach Hole A), was without any scientific foundation and that A/Prof Cross knew that any conclusion based upon bench press test results he had available to him would need to be heavily qualified by reason of the quantity and quality of the relevant data. It is the plaintiff’s case that Mr Tedeschi was also aware of the caution that needed to be applied when inviting the jury to utilise the so-called correlation between the ability to bench press 100kg and to throw 57kg at 4.5 m/s (the so-called “bench press test results”) as a source of extrapolating to a person’s throw strength, and that he deliberately did not adduce that evidence through A/Prof Cross, or through Prof Elliott, as evidence of his malice.

85. [1085]

    Mr Tedeschi opened the Crown case to the jury on the basis that the only explanation for Ms Byrne’s body being found nine metres from the base of the cliff was that she was “deliberately and very forcefully thrown out by a very strong man”. [720] The concept of a “strong man” [721] or “very strong man” [722] was used consistently in Mr Tedeschi’s opening address in the context of both alerting the jury to the Crown’s reliance upon A/Prof Cross to establish that proposition, and to the various experiments he performed which the jury were invited to accept provided a scientifically sound basis for the Crown’s primary submission that the plaintiff was the “strong man” that murdered Ms Byrne.

86. [1086]

    In alerting the jury in his opening to the throwing manoeuvre that A/Prof Cross had considered was the only mechanism by which Ms Byrne could have been thrown to her death (being the “spear throw”) Mr Tedeschi described the technique as involving “the use of the [thrower’s] shoulder and upper body muscles to assist in the throw”. [723] He said:

87. [1087]

    In elaborating upon the tests undertaken by A/Prof Cross to simulate the “spear throw”, Mr Tedeschi said:

88. [1088]

    He went on to say the second strongest officer was able to bench press 95 kilograms:

89. [1089]

    Mr Tedeschi then went on to submit as follows:

90. [1090]

    In leading A/Prof Cross in examination-in-chief, Mr Tedeschi invited his attention to his report of 8 March 2006 (the sixth Cross report) and what he described in that report as a tabulated set of data referable to the age, height and weight of Male A and Male B (the throwers), and the age, height and weight of the plaintiff, in turn associated with their ability to bench press nominated weights on one repetition and sets of six repetitions. Male A’s single bench press was tabulated at 95 kilograms and Male B’s at 120 kilograms. (Sets of six presses for Male A were tabulated at 85 kilograms and 100 kilograms for Male B.) The plaintiff’s ability to bench press (as tabulated) was limited to one lift at 100 kilograms. There was no weight ascribed to the plaintiff’s ability to repeatedly bench press 100 kilograms or any kilogram weight. In respect of Male A and Male B there was also a column designated for their maximum throw speed measured at metres per second, those speeds having been derived from throw tests in June and October 2004. Obviously, no throw speed was ascribed to the plaintiff.

91. [1091]

    Mr Tedeschi asked A/Prof Cross the following questions about that data:

92. [1092]

    That evidence was led from the jury without the tabulated results being exhibited. After adducing the data referable to Male B, what was then led from A/Prof Cross was that on every “spear throw” of a female volunteer, in the tests undertaken in June 2004 and again six months later, he was able to exceed a launch speed of 4.5 m/s. Mr Tedeschi then led the same information as it related to Male A. Male A, who was older, 20 kilograms lighter but 10 centimetres taller than Male B, but a reduced ability to bench press, achieved a maximum throw speed of 4.3 m/s.

93. [1093]

    A/Prof Cross was then invited by Mr Tedeschi to tell the jury about the data that he had been provided with as it related to the plaintiff. It is clear that for the purposes of preparing the report of 8 March 2006, A/Prof Cross was provided with information specific to the plaintiff (namely, his age, height and weight) and that he had the capacity to bench press 100 kilograms on a single lift. I have already noted in summary the effect of the sixth report at [547] that the information concerning the plaintiff’s bench press ability was entirely reliant upon a statement obtained from Mr Stephen Duval dated 25 November 2004. There is nothing in Mr Duval’s statement or the evidence adduced from him by Mr Tedeschi at trial to suggest that the plaintiff could bench press more than 100 kilograms on more than one repetition, or that he could deadlift 100 kilograms. He asked the following questions:

94. [1094]

    Mr Tedeschi then adduced, in a series of leading questions, the experiments that A/Prof Cross designed to test the relationship between bench pressing ability and “spear throwing” ability, the object of which, Mr Tedeschi agreed in his evidence in these proceedings, was to invite A/Prof Cross to express an opinion as to whether increased bench pressing ability correlated with increased throwing ability. He asked A/Prof Cross the following non-leading question:

95. [1095]

    In his closing address, Mr Tedeschi advanced the following submission to the jury:

96. [1096]

    He went on to submit that the plaintiff could “easily” [732] bench press 100 kilograms.

97. [1097]

    In its submissions, the defendant conceded that there was no basis in Mr Duval’s evidence for Mr Tedeschi’s submission that the plaintiff was able to bench press 100 kilograms on successive presses. The defendant submitted, however, that submission should be understood as an unintentional overstatement of the evidence by Mr Tedeschi, as distinct from a deliberate misstatement. The defendant relies for that submission on Mr Neil’s re-examination of Mr Tedeschi where, in a leading question, he put the following proposition:

98. [1098]

    In the plaintiff’s submission, for Mr Tedeschi to resort in his evidence to a misunderstanding as to what “spotting” involves (namely where one person is supervising multiple bench presses by a person who is lying down) was not open. Rather, it is the plaintiff’s submission that Mr Tedeschi intentionally misrepresented Mr Duval’s evidence to support the Crown’s ultimate submission that the plaintiff had the capacity to spear throw at a launch speed equivalent to Male B, the only thrower to reach a speed equivalent to 4.5 m/s or greater. I accept that Mr Tedeschi’s intention was to invite the jury to draw a parallel between the plaintiff and Male B based on what he said in his submission to the jury was the plaintiff’s ability to bench press 100kg a significant number of times, he did qualify that submission by the interpolation of the word “presumably”, although he did not make it clear on what basis that presumption was made.

99. [1099]

    In circumstances where he explained in his evidence in these proceedings what underpinned that assumption, I am not able to reach the positive conclusion that his misrepresentation of the evidence was intentional, neither am I able to conclude, as the plaintiff submitted I would, that it was a deliberate overstatement responsive to what Mr Tedeschi knew was Prof Elliott’s unwillingness to confirm any correlation between bench press ability and throw strength.

100. [1100]

     A separate but related question arises in the context of the plaintiff’s further submission that it was not open or proper for Mr Tedeschi to endeavour to meet what the jury would inevitably have concluded was a lack of scientific rigour in A/Prof Cross’s alignment between bench press ability and throw speed by advancing the following submission:

101. [1101]

     It is instructive to trace the provenance of what Mr Tedeschi submitted the jury would conclude (as a matter of common sense), namely that a person with superior bench press ability “would be better than average” at throwing a large weight (a submission which I note was a departure from the way he opened the Crown case on the issue where reliance was placed on A/Prof Cross’s tests).

102. [1102]

     In A/Prof Cross’s third report of 17 February 2005 (a report which addressed a series of requisitions Det Insp Jacob forwarded for his consideration following a conference between A/Prof Cross and officers of the DPP, including Mr Tedeschi on 15 February 2005), he referred to what he described as “a rough guide” [735] to the strength of the male throwers referable to their capacity to bench press both a single repetition and six repetitions, emphasising that “no claim is made as to the exact relation if any between throw speed and bench press figures”. [736] A/Prof Cross went on to say in that report:

103. [1103]

     It was not until A/Prof Cross furnished his sixth report of 8 March 2006 that there is any reference to the plaintiff’s physical characteristics and his capacity to bench press 100 kilograms, albeit only in a single repetition. From the analysis of that data, the conclusion A/Prof Cross reported was:

104. [1104]

     A/Prof Cross gave evidence in these proceedings that he included that opinion responsive to a request from Mr Tedeschi.

105. [1105]

     The evidence concerning the purported correlation between bench press ability and throwing ability (including throwing utilising a “spear throw”), emerging as it did for the first time in A/Prof Cross’s sixth report, was also responsive to a requesting letter of 12 February 2008 forwarded by Det Insp Jacob following a conference with Mr Tedeschi and others within the ODPP. The very first requisition in that requesting letter was:

106. [1106]

     A/Prof Cross was cross-examined as to the circumstances in which he was asked, and answered, that requisition when he furnished his sixth report. He confirmed that when he described, in his third report, an association between upper body strength and throw capacity as a “rough guide only”, he was not asserting that there was any precise relationship between throw speed and capacity to bench press. A/Prof Cross was also taken to his book, published in 2009, where he said that whilst he used the collected data to calculate “that a throw speed of 4.5 m/s would require a bench press ability of 100 kilograms” [740] he did not include that calculation in his third report “since it was not a convincing enough result”. [741] He explained what he meant by using that phrase. He said he had only what he described as “two data points” [742] (namely, the bench press ability of males A and B) and that was an unreliable basis upon which to predict the performance of a third person. He readily conceded that one cannot validly “interpolate or extrapolate from those two data points, you need more data”. [743]

107. [1107]

     In an email A/Prof Cross sent to Det Insp Jacob on 16 February 2005 after the conference the previous day with Mr Tedeschi in which the requisition (extracted above) concerning the potential relation between bench press and throw speed was raised, A/Prof Cross referred back to his third report where the tabulated data concerning bench press and throw speeds was referred to, albeit in the qualified terms. He said in that email:

108. [1108]

     He then inserted the tabulated summary and said:

109. [1109]

     He agreed in his evidence that when he referred to the table not being “very reliable or meaningful”, [746] that was consistent with what he had later reported in his book, namely that the results were “unconvincing”, [747] that is to say, having only two data points from which to extrapolate, the results were “not particularly scientific”, that it is “not particularly meaningful in a scientific sense”. [748]

110. [1110]

     Mr McClintock went further and directed A/Prof Cross to an email he sent to Mr Tedeschi on 8 March 2006 (the date of his sixth report) where, under a subheading that read “Issue 2: Throw speed vs bench press ability”, he said:

111. [1111]

     After including the tabulated results of the bench press ability of Male A, Male B and the plaintiff in a draft of his sixth report which he sent to Mr Tedeschi for his consideration, Mr Tedeschi inquired, by return email of 21 February 2006, as to whether the very extrapolation between bench press ability and throw strength that A/Prof Cross was concerned should not be made could be made. Mr Tedeschi said in his email as follows:

112. [1112]

     A/Prof Cross agreed in his evidence in the proceedings that he read the email as:

113. [1113]

     When asked whether he responded to that request by making it clear to Mr Tedeschi that he could not provide that opinion, based as it was on either pure speculation or an unreliable extrapolation from insufficient data, he said:

114. [1114]

     It was clear that he gave that answer having no immediate recall of that being precisely what he did not say in his sixth report. When he was taken to that report where he gave the opinion that “that a maximum throw speed of about 4.5 m/s could be expected for a person of [the plaintiff’s] strength, more than sufficient for a landing at [Hole A], [753] he said he expressed himself that way because Mr Tedeschi asked him to.

115. [1115]

     Mr McClintock, perhaps understandably, did not leave the issue there but sought and obtained the following concessions from A/Prof Cross in cross-examination.

116. [1116]

     It is important for present purposes that when A/Prof Cross gave his evidence at trial, he volunteered no qualification of any kind on the relationship between bench press ability and throw speed, and Mr Tedeschi led none from him which would have made it clear to the jury that no reliable conclusion could be drawn from the experiments that he had undertaken using Male A and Male B, and that his assumption about bench press strength and throw speed was no basis for drawing any reliable conclusion as to the plaintiff’s capacity to throw a 57kg weight at a sufficient launch speed to reach Hole A or Hole B, given the impact of other factors. Those factors included, as A/Prof Cross had made clear himself in the third report, throw technique and, equally importantly because he well knew the raw data was an insufficient base upon which to base any scientific conclusion.

117. [1117]

     Equally as importantly, if not tellingly, Mr Tedeschi put this submission to the jury in closing (some aspects of which I have already extracted, but which warrants being extracted in full):

118. [1118]

     In cross-examination, Mr Tedeschi was taken first to A/Prof Cross’s email to Det Insp Jacob of 16 February 2006. It was put to Mr Tedeschi that he asked A/Prof Cross in that conference whether he could provide a correlation between the tabulated results of bench press ability and throw strength of the male volunteers and that of the plaintiff. Mr Tedeschi said:

119. [1119]

     Mr McClintock then put the following questions:

120. [1120]

     Mr Tedeschi was then taken to his email to A/Prof Cross of 21 February 2006 set out at [549] above.

121. [1121]

     He agreed in cross-examination that he used the word “speculate” but he said he intended to convey a request of A/Prof Cross to “estimate” [758] the throw speed the plaintiff may have been able to achieve referable to the information A/Prof Cross had about the plaintiff’s bench press ability. He denied that he was deliberately inviting A/Prof Cross to guess or engage in speculation beyond inviting him to express an opinion based upon verifiable facts or inferences that might be drawn from the available information. He disagreed with the proposition. While it might be thought unwise for Mr Tedeschi to have expressed himself as he did, I am not persuaded that in so doing he was in fact inviting A/Prof Cross to engage in speculation if for no other reason that he did so in writing. The plaintiff also put it to Mr Tedeschi that when he closed the Crown case to the jury on the basis that “[Gordon Wood] had the physical capacity to spear throw a 57 kilogram woman at 4.5 metres per second”, [759] that submission was based on nothing but “mere speculation” [760] on his part. He disagreed and said:

122. [1122]

     The plaintiff submitted that the Court would readily find that Mr Tedeschi well knew by the time of the committal in June 2007 that A/Prof Cross’s evidence as to the correlation between bench press ability and throw speed was heavily qualified and that it had neither been confirmed by Prof Elliott when he considered the A/Prof Cross report of 8 March 2006, nor referred to in the published articles to which he referred. The plaintiff submitted that Mr Tedeschi’s answer reveals “his preparedness to give the convenient rather than the truthful answer in cross-examination”. [762]

123. [1123]

     Insofar as the plaintiff asked the Court to find that Mr Tedeschi’s evidence on this issue showed an inclination to dissemble, the defendant submitted that this was not squarely put to Mr Tedeschi in cross-examination in breach of the rule in Browne v Dunn. I do not regard that submission as well found founded. The challenge to Mr Tedeschi’s honesty was, in my view, sufficiently put to comply with the plaintiff’s obligation under the rule.

124. [1124]

     I cannot see, for my part, how Mr Tedeschi’s claim that his submission to the jury was “solidly based” [763] on the evidence of A/Prof Cross, and “confirmed by Professor Elliott”, [764] or that the evidence “amply justified” [765] the submission he advanced. I have those doubts based upon my analysis of the evidence and what I consider flows from that analysis. Ultimately of course, the submission Mr Tedeschi advanced, when pared back to its essence, was that the jury would be satisfied that the plaintiff “had the physical capacity to spear throw Caroline Byrne to end up where her body was found” and that A/Prof Cross’s evidence, at the most general level, was one source of evidence upon which that submission was based.

125. [1125]

     In addition, while I have some concerns that Mr Tedeschi either wittingly or unwittingly influenced A/Prof Cross to render his opinion on the plaintiff’s throw strength in accordance with what he thought Mr Tedeschi wanted to hear, I am not able to give A/Prof Cross’s evidence that he “told” Mr Tedeschi that he could not draw a correlation between bench press ability and throw strength any weight, given the concerns I have expressed about A/Prof Cross’s reliability and honesty as a witness in these proceedings in a range of related respects.

126. [1126]

     In the result, I am not satisfied that the bench press issue, as a standalone issue, advances the plaintiff’s case in proof of either of the elements of the tort.

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

1. [1127]

   Having found, for the reasons set out at length above, that at least by the time Prof Elliott gave evidence the Crown was without evidence sufficient to enable a jury to find that a totally unresponsive limp body (the comportment of an unconscious person) could be “spear thrown” under sufficient speed to reach Hole A, and no evidence upon which they could find that a struggling woman could be thrown the distance, I am satisfied that by application of the objective test in proof of the fourth element of the tort of malicious prosecution, the plaintiff’s trial was maintained to verdict without reasonable and probable cause.

2. [1128]

   Since A/Prof Cross’s evidence was fundamental to proving the precise manner of Ms Byrne’s death (namely a “spear throw” by a strong man) and part of the evidence relied upon to disprove suicide beyond reasonable doubt, and because his findings were flawed in multiple respects rendering proof of the interrelated facts underlying that scenario deficient, I am also satisfied that the proceedings were initiated without reasonable and probable cause. I should emphasis, however, that I am not of the opinion that the prosecution was initiated without reasonable and probable cause because the possibility of suicide per se was not able to be excluded beyond reasonable doubt. As I made clear earlier, there was, in my view, a sound basis in the evidence assembled by Strike Force Irondale and reported upon by Det Insp Jacob in the Sufficiency of Evidence Report (including A/Prof Cross’s first report that the point of recovery rendered a trip or a step or drop off the cliff edge unfeasible) to justify Det Insp Jacob’s opinion that suicide could be excluded as an explanation for Ms Byrne’s death. I am also satisfied that nothing emerged in the two years before Mr Tedeschi advised the charge should be laid which warranted him coming to a different view.

3. [1129]

   With the plaintiff having established his prosecution for murder was initiated and maintained in the absence of reasonable and probable cause by application of the objective test for proof of that element, the remaining question is whether the plaintiff has also established that Mr Tedeschi’s approach to adducing the evidence from A/Prof Cross in the ways discussed (including in breach of his obligations as prosecuting counsel) reveals that he had a lack of subjective belief in the sufficiency of the evidence to support a charge of murder, such as might provide a basis for inferring that he prosecuted the plaintiff maliciously.

4. [1130]

   In closing submissions, the defendant sought to defend Mr Tedeschi’s approach to the way in which he adduced A/Prof Cross’s evidence at trial on the basis that Mr Tedeschi was entitled to expect that his evidence would be fully tested in cross-examination, including, it must be assumed, an expectation that the adequacy of the tests A/Prof Cross conducted to support the conclusions he reached, and the integrity of the experimental environment in which those tests were conducted, would also be tested. Whatever expectations a Crown Prosecutor in Mr Tedeschi’s position might or might not expect will be the position taken by cross-examining counsel, it is for the Crown Prosecutor to fully and fairly adduce evidence from an expert witness in order to ensure that any assumptions, experiments or assumed facts upon which the opinion is based are identified and proved. I do not understand the defendant to submit otherwise.

5. [1131]

   The defendant further submitted that Mr Tedeschi’s approach to adducing evidence from A/Prof Cross was defensible since the evidence was never presented nor relied upon by the Crown on the basis that the “spear throw” test results had any necessary application to a struggling woman. Further still, the defendant queried whether a prosecutor is obligated to spell out that a particular piece of evidence does not relate to topics that it does not purport to relate to. If those submissions are to have any traction (and, in my view, in this case they do not), I would need to be satisfied that despite A/Prof Cross accepting in these proceedings that his ultimate conclusion that Ms Byrne was “spear thrown” to her death was necessarily qualified by the fact that she offered no resistance to being lifted, and that she was unconscious when she was thrown, Mr Tedeschi had no corresponding obligation to ensure that qualification, and any additional matters of fact or any underlying assumptions that qualified his opinion or conclusion were patent and express before inviting the jury to rely on his evidence. That is clearly not the law.

6. [1132]

   The plaintiff submitted that Mr Tedeschi could not have misread or failed to appreciate that the dangers and difficulties that A/Prof Cross identified in his fifth report in throwing a struggling woman from height off a cliff in the dark. The plaintiff submitted that for Mr Tedeschi to advise Mr Cowdery that a prosecution of the plaintiff for murder should be initiated based in part on A/Prof Cross’s fifth report, and then to take the approach at the plaintiff’s trial that he was not obliged to adduce the qualifications to A/Prof Cross’s ultimate conclusion (that they did not apply if a woman was conscious and struggling), was evidence both that he had no honest belief in the sufficiency of the available evidence to support the plaintiff’s indictment on the murder charge and his determination to urge a jury to convict him of murder despite that belief as evidence of malice.

7. [1133]

   The plaintiff went further in closing submissions contending that it would have been apparent to any competent lawyer that A/Prof Cross’s evidence did not apply were Ms Byrne conscious and resisting the attack on the cliff edge, further supporting his case that Mr Tedeschi could not have honestly concluded that A/Prof Cross’s evidence sufficiently grounded a prosecution of the plaintiff for her murder. In the plaintiff’s submission, that conclusion is not only the result of the application of simple forensic logic, it is also a matter of common sense when it was obvious that all of the poolside experiments conducted by A/Prof Cross involved compliant and conscious human subjects in conditions in no sense comparable to the conditions that prevailed on the night of 7 June 1995.

8. [1134]

   Were the issue of the “struggling woman” the only qualification that the plaintiff submitted was not fully and fairly adduced by Mr Tedeschi (as I consider it was not), it may have been open to find the explanation for Mr Tedeschi’s failure to adduce that evidence in oversight or incompetence; or perhaps a failure to appreciate the need for him to be astute to the obligations of an expert witness to comply with the Expert Witness Code of Conduct when giving evidence. If this were the explanation for the approach Mr Tedeschi took to adducing A/Prof Cross’s evidence, it would not support a finding of malice in the legal sense.

9. [1135]

   On the analysis I have applied to the evidence, however, the matter does not rest there. There is also the question whether Mr Tedeschi was obliged to ensure that the poolside “spear throw” tests applied with appropriate scientific rigour to account for the possibility that Ms Byrne was unconscious and therefore wholly incapacitated when she was thrown. There is also the further question whether he was also obliged to ensure that A/Prof Cross was led in such a way that the jury were aware that he was not suggesting that there was a demonstrable and scientifically verifiable correlation between a man’s bench press ability and throw speed, only an association between the two, and even then heavily qualified. The defendant was at pains to point out that no objection was taken to the admissibility of A/Prof Cross’s evidence on the basis that his tests were deficient in this respect or otherwise. While that is the case, neither did it permit Mr Tedeschi to disregard or dilute his independent obligation as a prosecutor to adduce A/Prof Cross’s evidence fully and fairly.

10. [1136]

    Although I am driven to conclude that Mr Tedeschi breached his duties as a prosecutor by failing, in multiple respects, to adduce A/Prof Cross’s evidence fully and fairly, the further question is whether I am able to comfortably conclude, to a level of reasonable satisfaction, that he did so deliberately. That is, that he did so knowingly. It is accepted by the defendant that were that shown to be the case it would strongly suggest Mr Tedeschi lacked an honest belief in the cogency of A/Prof Cross’s evidence to support the Crown case that the plaintiff murdered Ms Byrne which may also operate to provide proof of malice by inference.

11. [1137]

    There is nothing in Mr Tedeschi’s evidence to leave open the possibility that that when he adduced A/Prof Cross’s evidence he simply overlooked ensuring that all necessary qualifications to his opinions and conclusions were adduced. Neither did he suggest that he had failed to appreciate that it was essential that he adduce A/Prof Cross’s evidence in that way. To the contrary. Mr Tedeschi maintained the position throughout his evidence that he understood his obligations as a Crown Prosecutor when leading an expert witness, and that he had fully complied with those obligations.

12. [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.

13. [1139]

    That leaves open three conclusions, either:

14. [1140]

    A further question is whether, once the flaws in A/Prof Cross’s evidence and the Crown case theory were exposed (in particular after Prof Elliott gave evidence), Mr Tedeschi’s default position was to change the Crown case to accommodate them.

15. [1141]

    From the various findings I have already made, the question posed in (a) above must be answered in the negative. The plaintiff has persuaded me, however, that whatever Mr Tedeschi’s motivations might have been in recalibrating the Crown case in his closing address, there was no support in the evidence which allowed him to maintain the Crown case to verdict on the basis that Ms Byrne could have been thrown with sufficient velocity to reach Hole A or Hole B if she were conscious and struggling, and insufficient support in the evidence to maintain the same case to verdict were she limp and unconscious when she was thrown.

16. [1142]

    I also find it difficult to accept Mr Tedeschi’s evidence that he considered himself justified in advising Mr Cowdery in 2006 that a prosecution should be commenced upon A/Prof Cross’s “core findings” or that the case he opened to the jury in 2008 was sufficiently based on those findings. Although the concept of a “core finding” might have been a convenient and shorthand way for Mr Tedeschi to endorse what he considered to be the forensic utility of A/Prof Cross’s evidence in his evidence in these proceedings, in my view, to have taken the approach at trial that the core findings (so-called) were sufficient to make out the Crown case, necessarily obscured the underlying complexities in the issues A/Prof Cross was retained to report upon and the fundamental flaws that were ultimately revealed in his analysis of those issues. For that reason alone, Mr Tedeschi’s approach to adducing A/Prof Cross’s evidence belies what is expected of a competent Senior Crown Prosecutor conscientiously applying himself to the conduct of a murder trial. It is, for that reason amongst others, that the explanation for his conduct in (b) above is not available.

17. [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.

Has the plaintiff proved Mr Tedeschi prosecuted the plaintiff maliciously?

1. [1144]

   Having established that in his role as a prosecutor Mr Tedeschi initiated and maintained the criminal proceedings against the plaintiff for murder without reasonable and probable cause (in this case, by the application of the objective test for proof of that element), the related but separate question is whether the plaintiff has discharged the onus of demonstrating that in doing so Mr Tedeschi prosecuted him maliciously. Proof of malice in this case requires the plaintiff to discharge the onus of proving that Mr Tedeschi’s sole or dominant purpose in prosecuting him for Ms Byrne's murder (without reasonable and probable cause) was for a purpose other than for the legitimate purposes of the criminal law.

2. [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.

3. [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.

4. [1147]

   The precise nomination of a prosecutor’s ulterior purpose in initiating and maintaining a prosecution without reasonable and probable cause might not be susceptible to precise appointment, perhaps because it is so arcane as to not be capable of discernment. Such may be the case here. However, that does not relieve the plaintiff of the obligation of persuading the Court that he was prosecuted maliciously by Mr Tedeschi, in the legal sense.

5. [1148]

   Nothing was put to Mr Tedeschi in cross-examination to suggest some particular ulterior purpose (personal or professional) in prosecuting the plaintiff, whether it be self-aggrandisement or a determination to be shown to be the prosecutor to successfully prosecute the plaintiff for a hitherto unsolved homicide, or for some other motive. Neither was it suggested to Mr Tedeschi that the criticism that this Court has levelled at him as a prosecutor in other trials, including by understating the weakness in the Crown case and overstating its strength contrary to the evidence in order to secure a conviction, exhibits a tendency to prosecute unfairly (see Anderson v R (1991) 53 A Crim R 421). Mr McClintock rested his case on proof of malice on what he submitted I would be satisfied were multiple and deliberate instances of prosecutorial misconduct. Mr McClintock submitted that I would also be satisfied that Mr Tedeschi lied in the answers he gave to the questions asked of him in cross-examination about that conduct, lies which he submitted I would find were deliberately told to conceal the fact that Mr Tedeschi knew at the time of the trial, and knows now, that the carefully constructed Crown case he advanced at trial allowed him to impermissibly press for a conviction, and that in achieving that objective he knew he was acting in breach of his ethical obligations.

6. [1149]

   Paragraph 16 of the FASC is the source of the plaintiff’s pleaded case on malice. It alleges that Mr Tedeschi acted maliciously by seeking to convict the plaintiff of murder regardless of his guilt or innocence, contrary to the evidence and by employing means contrary to his obligation of fairness to achieve that objective, encapsulating what were alleged to be particular instances of prosecutorial misconduct in pars 16.59-68, 16.70-72. Those particulars are set out in full below (altered for syntax):

7. [1150]

   Subparagraphs (f) and (h) above concern Mr Tedeschi’s approach to adducing evidence from A/Prof Cross. I have already dealt with them at length and do not need to revisit my analysis of them. Subparagraph (j) was not the subject of any submissions on the issue of malice. Subparagraphs (k) and (l) will be dealt with here under the subheading “The significance of DJ”. “The killer point” and “50 questions”, respectively subparagraphs (i) and (m), will also be dealt with as separate questions. Subparagraphs (a) and (g) concern the question whether Mr Tedeschi’s closing address exceeded proper bounds and, finally, subparagraph (p) concerns the evidence of Mr Doherty.

8. [1151]

   In final submissions, the plaintiff also put that to (n) above (the “killer point” issue) should be added the contention that for Mr Tedeschi to assert that the plaintiff “knew exactly what clothing Caroline was wearing”, [766] despite Sgt Powderly not having “seen a thing”, [767] was a deliberate misstatement of the evidence, and knowingly so, as further evidence of malice. The plaintiff also submitted that Mr Tedeschi’s assertion that the plaintiff had “insider trader information” [768] to further advance the Crown’s speculative submission on motive was also evidence of malice, as was his deliberate failure to adduce evidence that he perceived as contrary to the Crown case, as shown in the way he dealt with “the carpark issue” and “Ms Byrne’s medical records”, neither of which were pleaded as particulars of malice but which were relied upon in submissions as relevant to proof of that element of the tort. I have already dealt with the issue of Ms Byrne’s 1992 hospital records. The “carpark issue” will be dealt with below.

9. [1152]

   Mr Tedeschi was cross-examined at length about his conduct as the Crown Prosecutor in the plaintiff's trial, with a view to establishing some or all of the particulars of prosecutorial misconduct set out above. He was also cross-examined at length as to his state of persuasion as to the sufficiency of the evidence to institute and maintain the prosecution of the plaintiff for murder, with a view to the plaintiff discharging the onus of establishing that he had no subjective belief in the sufficiency of the evidence to support a verdict of guilty, in further support of the plaintiff’s submission that his prosecution of the plaintiff was actuated by malice.

10. [1153]

    Before turning to a consideration of the particulars of malice, it is necessary to deal with the plaintiff’s further submission that I would be satisfied that Mr Tedeschi’s failure to make an informed assessment of A/Prof Cross’s credibility and reliability at the time that the proceedings were initiated, compounded by his reliance on A/Prof Cross’s evidence to support the Crown case that Ms Byrne was thrown to her death without leading the evidence that operated to qualify A/Prof Cross’s conclusions, is evidence of malice, even if his state of awareness had not crystallised to the point where he had actually formed the view (or reached the positive state of belief or persuasion) that the available evidence did not justify a prosecution of the plaintiff for murder.

11. [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.

12. [1155]

    The defendant further submitted that even were Mr Tedeschi’s conduct in his dealings with A/Prof Cross an expert witness found to be reckless, that is, even were I satisfied that he considered the risk that A/Prof Cross’s involvement in the police investigation had influenced his approach to the question of how Ms Byrne descended to her death and that his evidence lacked the essential objectivity and impartiality, but that Mr Tedeschi determined to prosecute the plaintiff for murder based upon A/Prof Cross’s evidence notwithstanding, that would also not amount to proof of malice. The plaintiff did not seek to make a case that Mr Tedeschi was reckless in his treatment of A/Prof Cross as a Crown witness or, for that matter, that he was reckless in the approach he took in his conduct of the Crown case generally by, for example, considering the risk that he may be exceeding the legitimate limits of his entitlement as a Crown Prosecutor to urge the jury in his closing submissions to return a verdict of guilty but that he took that risk notwithstanding in order to secure a conviction. Rather, it was the plaintiff’s case that Mr Tedeschi acted in deliberate disregard of his legal and ethical obligations in “straining for a conviction” and that he did so consciously against the weight of the available evidence.

13. [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 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.

14. [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.

15. [1158]

    The defendant did accept, however, that were I to conclude that in the transactional phase of the trial Mr Tedeschi exceeded the legitimate reach of his discretion as a prosecutor, either by deliberately not calling some evidence and/or by deliberately misrepresenting other aspects of the evidence and what it was capable of proving about the facts in issue at trial in order to secure a conviction, that would be evidence of malice. Unsurprisingly, the defendant also accepted that were I to conclude that Mr Tedeschi knew that the Crown case on motive was based upon “speculation, smear and innuendo” (or otherwise without a sufficient foundation in the evidence to support the legitimate drawing of an inference as to motive), and that he advanced the submission that the plaintiff was motivated to kill Ms Byrne to protect the relationship with Mr Rivkin with that knowledge, that would also be evidence of malice. Similarly, were I to conclude that Mr Tedeschi sought to bolster the evidence of identification by deliberately misstating the weight or worth of the evidence of Mr Doherty, the defendant accepted malice may also be proved.

16. [1159]

    The question is whether I am satisfied that malice has been proved by any one or more of these approaches referable to the plaintiff’s legal and evidential obligation of proof.

17. [1160]

    In discharging his legal and ethical obligations as prosecuting counsel it is self-evident that Mr Tedeschi was obliged to tender any evidence that was relevant to the issues at trial, and from a credible witness or source, even were it to run counter to the Crown case. It is also self-evident that he was obliged to diligently present the Crown case with objectivity and detachment, including in his closing address. While it is not in every case that a prosecutor’s failure to meet those standards will constitute malice, were I satisfied that Mr Tedeschi deliberately abandoned those responsibilities in order to secure a conviction, a finding of malice would follow.

18. [1161]

    In considering whether the plaintiff has satisfied me on the basis of proof of one or more of the particulars of malice, or perhaps by a combination of them, that the more probable inference is that Mr Tedeschi’s sole or dominant purpose in prosecuting the plaintiff for murder was for a dominant purpose ulterior to the criminal law, I would also need to consider at least two competing hypotheses or explanations for what the plaintiff submitted I would find established about Mr Tedeschi’s conduct as a prosecutor. While neither was advanced by the defendant, I am satisfied that they arise on the evidence and the way in which these proceedings have been conducted by the parties, including in their final submissions. They also arise in the assessment I am obliged to make of Mr Tedeschi as a witness in the proceedings. I will return to consider, those explanations after addressing the plaintiff’s case on malice as pleaded and as further particularised in his closing submissions.

19. [1162]

    This Court has also recognised that inviting juries to determine factual issues on the basis of “how they would feel, how they would react, or what they would do” [769] has been described as a “dangerously wrong approach”.

20. [1163]

    As Simpson J noted in GDD v R [2010] NSWCCA 62, both defence counsel and/or prosecuting counsel need to exercise caution when inviting juries to examine evidence from a particular point of view, and to be careful of the way in which that invitation is made. It is the plaintiff’s submission that Mr Tedeschi failed to apply any caution, or any appropriate caution, on multiple occasions in the course of his closing submissions, one example being his invitation to the jury to put themselves in the position of Ms Byrne at the top of the Gap and the fear that would have accompanied her decision to commit suicide, in support of the Crown case that she did not. The submission was put in the following terms:

21. [1164]

    The plaintiff submitted that in making that submission, Mr Tedeschi was fighting or straining for a conviction contrary to his obligation as a Crown Prosecutor. Mr Tedeschi denied that he was appealing to the jury’s emotions and maintained the position that it was perfectly legitimate for him to advance the submission in those terms. In my view, although that is the type of submission cautioned against in GDD and, for that reason, should not have been put in precisely those terms, I do not regard the submission as so egregious in the context of the closing submissions as a whole that it amounted to an impermissible urging of the jury to apply emotion rather than reason in their deliberations.

22. [1165]

    I am not satisfied that the particular of malice in par 16.62 of the FASC is made out.

23. [1166]

    Mr Tedeschi also rejected the suggestion put to him in cross-examination that there was anything improper in commenting upon Ms Byrne’s self-report to Dr Pan by the submission that:

24. [1167]

    Despite the fact that Dr Pan did not give evidence that Ms Byrne identified her relationship with the plaintiff as the source of her feeling depressed, or for that matter that she was able to appoint any particular reason for feeling that way, Mr Tedeschi rejected the suggestion that he was applying “a speculative smear” [772] to prejudice the jury against the plaintiff. He gave the following evidence to justify what he claimed was a legitimate inference that the plaintiff was the primary source of her disturbed feelings, an inference that it was open to the jury to draw from all of the evidence. He said:

25. [1168]

    I am not satisfied that the plaintiff has established that this aspect of Mr Tedeschi’s closing submissions exceeded the legitimate reach of a submission he was entitled to advance for the consideration of the jury having regard to the full complement of the evidence bearing upon Ms Byrne’s actual, or presumed state of mind, at the time of her consultation with Dr Pan. It might have been otherwise if Mr Tedeschi had sought to attribute a clinical cause for her depression as sourcing in the relationship with the plaintiff. I accept that was not what Mr Tedeschi intended to convey.

26. [1169]

    The particular of malice in 16.60 of the FASC is not made out.

27. [1170]

    Further examples of what are said by the plaintiff to be instances of Mr Tedeschi’s prosecutorial misconduct, some but not all of which were pleaded as evidence of his malice, are as follows:

    1. (1)

       The significance of Ex DJ (pars 16.69 and 16.70 of the FASC);

    2. (2)

       The “carpark issue” (not pleaded as a particular of malice);

    3. (3)

       The tender of Ex DO (not pleaded as a particular of malice);

    4. (4)

       The “50 Questions” (par 16.65);

    5. (5)

       The “killer point” (par 16.71);

28. [1171]

    Leaving to one side, for the moment, the particulars of misconduct in (1)-(5) above, each of which the plaintiff submitted demonstrates Mr Tedeschi’s preparedness to breach his fundamental obligations as a prosecutor to obtain a conviction at all costs, the plaintiff placed considerable reliance on what was said to be a particularly egregious example of Mr Tedeschi’s deliberate and repeated misstatement of the evidence in his closing address designed by him to deliberately and improperly bolster the Crown case. This concerned the evidence of Mr Doherty upon whose evidence the Crown relied to make out a central component of the Crown case, namely that it was Ms Byrne who was being shouted at by the plaintiff in Military Road at Watsons Bay at 8pm of 7 June 1995, an argument that continued in the region of the cliff top at the Gap before her body was discovered at the base of the cliffs the next morning.

29. [1172]

    I have already set out Mr Doherty’s evidence at the trial which was largely consistent with the account he gave to police in a number of statements between 1998 and 2004 (see [804]-[820]).

30. [1173]

    I have also stated my reasons for concluding that Det Insp Jacob and Mr Tedeschi were entitled to take into account his evidence as supporting a prosecution of the plaintiff for Ms Byrne’s murder. It is not necessary to restate that evidence for present purposes, other than to emphasise that Mr Doherty’s consistent description of the girl he saw on Military Road on the evening of 7 June 1995 was that she was “slurring her words and moaning”, [774] “talking and slurring and moaning at the same time … sort of being combative, but I thought she was just too drunk and she wasn’t making sense”. [775] In cross-examination, Mr Doherty agreed that he told police in his first statement that the girl “seemed drunk or stoned or both”, her voice was “slurring but was aggressive”, her words were “all slurred. It was like a rant”. [776] Mr Doherty was also emphatic in his evidence that he was unable to describe the girl, and he could not hear any of the words she used or words that the man directed at her, save as to describe the tone of their voices as indicating to him that they were engaged in a heated argument.

31. [1174]

    Before considering the plaintiff’s complaint that Mr Tedeschi deliberately misstated the effect of Mr Doherty’s evidence in his closing address in derogation of his duties as a prosecutor, it is necessary to place Mr Tedeschi’s submissions on that subject in the wider context of the Crown case on motive.

32. [1175]

    As I have noted earlier, the Crown case on motive was two-fold, with each of the two motives interrelated factually. The first was said to be sourced in the plaintiff’s concern about Ms Byrne’s knowledge of Mr Rivkin’s involvement with Offset Alpine Printing Company, as to which there were said by the Crown to be suspicions of dishonest share dealings, and in respect of which an enquiry had been initiated by the Australian Securities Commission, resulting in compulsory notices being served on the plaintiff and Mr Rivkin upon their return from overseas in May 1995. Mr Tedeschi submitted further that Ms Byrne could, as he expressed it, “do untold harm” [777] to the relationship between the plaintiff and Mr Rivkin as his employer, thus putting that working relationship in jeopardy and the plaintiff’s financial security in jeopardy. The second motive was said to source from what the Crown submitted was the relationship between the plaintiff and Ms Byrne having deteriorated to such an extent that the jury would infer that by 7 June 1995 Ms Byrne wanted to terminate it, and that the plaintiff’s distress at the thought of losing her, compounded by fears that Ms Byrne would jeopardise his relationship with Mr Rivkin, motivated him to kill her.

33. [1176]

    I should emphasise at this juncture that for the purposes of these proceedings, it is irrelevant that it was the view of the Court of Criminal Appeal that the trial judge was in error in permitting the Crown to advance the submission that Ms Byrne’s presumed knowledge of information relating to Offset Alpine or Mr Rivkin’s business dealings generally was capable of constituting a motive to kill. It does bear noting, however, that the Court was of the opinion that the trial judge failed to properly assess, and to rule accordingly, that the evidence in support of the first limb of the Crown case on motive was so thin that it amounted to unsubstantiated speculation, occasioning unfair prejudice to the plaintiff that no jury direction could eliminate.

34. [1177]

    Neither is it to the point for present purposes that the Court also observed that Mr Tedeschi’s closing submissions confirmed the speculative nature of the implication that Ms Byrne had information which could have damaged Mr Rivkin, although the Court did acknowledge that Mr Tedeschi made it clear that the Crown did not allege that Mr Rivkin was in any way directly implicated in the murder. That said, the Court went on to find that because of Mr Rivkin’s relationship with the plaintiff, Mr Tedeschi intended the jury to draw the inference that the plaintiff was assisted in killing of Ms Byrne by Mr Redding (one of his associates and work colleagues) in order that Mr Rivkin’s commercial and other interests would be protected and the plaintiff’s relationship with Mr Rivkin secured, despite being under direction from the trial judge (with which he complied) that he was not to advance the positive case that Mr Redding was the second man seen in the company of Ms Byrne and the plaintiff at Watsons Bay on 7 June 1995.

35. [1178]

    What is to the point is that the plaintiff pleads in pars 16.52, 16.53 and 16.66 of the FASC set out at paragraphs (b)-(d) above, the findings of the Court of Criminal Appeal that Mr Tedeschi misconducted himself in this way as a particular of malice:

36. [1179]

    It will be necessary to return to consider whether that aspect of the plaintiff’s case on malice is established after giving consideration to Mr Tedeschi’s evidence where he details the basis for his continued belief that he had an adequate foundation in the evidence to maintain the submission that the plaintiff’s motive to kill Ms Byrne was linked to his employment with Mr Rivkin; his knowledge of Mr Rivkin’s affairs and Mr Rivkin’s alleged “paranoia” [778] about information Ms Byrne had about his business and personal affairs. It is, of course, implicit in Mr Tedeschi’s evidence on this issue, as it is with the way he dealt with other criticisms the Court of Criminal Appeal made of him, that he contests the Court’s explicit findings that he misconducted himself in advancing the Crown case on motive and, in particular, that he invoked “speculation, smear and innuendo” in doing so.

37. [1180]

    Whatever Mr Tedeschi’s evidence may ultimately reveal about his insight (or the lack of it) into his role and responsibility as a Crown Prosecutor, and even were I to conclude that he did misconduct himself in the way he constructed the Crown case on motive as the plaintiff alleges, that does not necessarily establish that in adducing evidence in the Crown case going to that issue and putting his closing submissions referable to the evidence, consistently with the ruling of the trial judge, that he acted maliciously in the legal sense. For reasons which I will develop later, a close analysis of Mr Tedeschi’s attitude to the issue of motive and what that reveals now about his attitude at the time of trial in 2008, is crucial to determining whether the plaintiff has proved that he acted maliciously. On the approach I regard as correct as a matter of law (an approach implicit in the approach of the parties in their final submissions), I would need to reject Mr Tedeschi’s evidence that he believed he had an adequate foundation to advance the Crown case on motive as linked to Mr Rivkin either as either untrue, or to be so untenable as to be unworthy of any weight, before I could find malice proved.

38. [1181]

    The second but interrelated aspect of the Crown case on motive was that Ms Byrne had resolved to terminate the relationship with the plaintiff, and that the plaintiff was panicked at the prospect of losing her, even if her intentions had not been unequivocally communicated to him. In this context, Mr Tedeschi also advanced the closing submission that the evidence well supported the jury finding that the plaintiff was a very “domineering, controlling person”, and that he sought to dominate and control Ms Byrne to the extent that, as Mr Tedeschi expressed it in his evidence:

39. [1182]

    In defence of the submission that the plaintiff was “abusive, possessive, and a control freak” (a particular of malice pleaded in par 16.59 of the FASC), in his second February statement Mr Tedeschi said:

40. [1183]

    Despite the somewhat crude use of the vernacular Mr Tedeschi elected to use in describing the plaintiff and his relationship with Ms Byrne, including that he was a “control freak”, [780] I do not regard that submission, or the related submission that the plaintiff was “possessive and controlling”, [781] as unsupported by the evidence, even accepting that there was other evidence in the trial reflecting rather more favourably on the plaintiff’s treatment of Ms Byrne as his girlfriend. I note in that regard the material referred to in par 203 of the plaintiff’s submissions which I have read and considered.

41. [1184]

    The particular of malice pleaded in par 16.59 of the FASC is not made out.

42. [1185]

    Mr Tedeschi continued by addressing the jury on the so-called “gym fight” as further evidence of the deterioration of the relationship between the plaintiff and Ms Byrne:

43. [1186]

    The “gym fight” witnessed by Ms McVeigh, involving what was said by Mr Tedeschi to be the plaintiff aggressively confronting Ms Byrne before her death and publicly abusing her in a loud and aggressive way, was what was said by Mr Tedeschi in his closing address to be behaviour the plaintiff repeated the night before Ms Byrne was killed. That submission was based solely on Mr Doherty’s evidence.

44. [1187]

    The plaintiff submitted that to rely on Mr Doherty’s evidence for this purpose was only possible if Mr Tedeschi incorporated multiple and deliberate misstatements of the effect of Mr Doherty’s evidence. The plaintiff submitted that the Court would also find Mr Tedeschi’s evidence in these proceedings, where he justified the submission he advanced as fairly arising on the evidence of Mr Doherty, as so wholly untenable as to warrant it being rejected as untrue. A finding to that effect is said by the plaintiff to lead inexorably to a finding of prosecutorial misconduct, eloquent of malice.

45. [1188]

    In advancing the submission that what Mr Doherty witnessed was a confrontation between the plaintiff and Ms Byrne which extended over some hours (a confrontation which Mr Tedeschi submitted was ample evidence of the relationship having deteriorated to such an extent that they were loudly and publicly arguing) Mr Tedeschi drew the jury’s attention to the evidence of two people, including Ms McVeigh, who had witnessed what he referred to in his closing submissions as “the most awful argument in the gym late at night” (on the Crown case, the Thursday or Friday before Ms Byrne’s death) where, as he described it:

46. [1189]

    Mr Tedeschi went on to say:

47. [1190]

    It is not suggested by the plaintiff that this submission was an overreach or overstatement of the effect of Ms McVeigh’s evidence (an extract of which is set out above). What the plaintiff does submit (as defence counsel submitted at the plaintiff’s trial) is that Ms McVeigh’s evidence was necessarily compromised by extensive media coverage of the plaintiff’s arrest in May 2006, her statement having been volunteered for the first time after that date. The plaintiff also submits that her evidence was contradicted by Mr Redding’s evidence that he had not been to the gym since 1994. I do not regard those matters as relevant to the issue of malice. Neither do I regard the plaintiff’s further submission that Kylie Watson, a close friend of Ms Byrne’s, gave evidence that she saw Ms Byrne outside the June Dally-Watkins school on the Friday afternoon on 2 June 1995 and that aside from seeming to her “quite flat and fluey”, she said “she couldn’t get to the gym so she was feeling a bit down” as relevant to the issue of malice.

48. [1191]

    On the plaintiff’s case, there is further significance attaching to the events of Friday 2 June 1995 by way of pager message, Ms Byrne left for the plaintiff at 5:37pm that day, which read:

49. [1192]

    That text message was not adduced as evidence in the Crown case. Mr Tedeschi accepted in his evidence that he would likely have had a printout of that message sent on pager service, together with other pager messages. He did not accept that the text was inconsistent with the Crown case theory that the relationship between Ms Byrne and the plaintiff was unravelling and that he did not tender it for that reason. Mr Tedeschi gave evidence that whilst he did not specifically recall the pager message, he accepted that one way of reading it was that Ms Byrne was not at the Gym but at home sick, which would in turn tend against her being at the gym at all that day. Mr Tedeschi’s ultimate justification was not only was “the gym fight” some hours later on a Friday (namely at 8:30pm), but Ms McVeigh was not absolutely certain it was the Friday before she died. He said:

50. [1193]

    I do not regard the decision not to tender the pager message as evidence of misconduct, even if it was a decision made after deliberation (as to which I have some doubts). I am not persuaded the Crown was obliged to tender it. There was no suggested it was not disclosed.

51. [1194]

    In support of the submission that the relationship was in decline, Mr Tedeschi also referred in his closing submissions to the evidence of Ms Georgiou, emphasising the number of conversations Mr Georgiou had with Ms Byrne where she expressed grave concerns for how the plaintiff might react were she to have announced the end of the relationship. Mr Tedeschi also invited consideration to what he described as “the evidence of Caroline Byrne’s many friends” [787] that:

52. [1195]

    The plaintiff’s ultimate submission, as it relates to the evidence of Mr Georgiou and Ms McVeigh, coupled with the evidence of those who gave their insights into the nature of the relationship between the plaintiff and Ms Byrne’s proximate to her death, was that it was incapable of establishing that Ms Byrne was in fact going to terminate the relationship. The plaintiff went on to submit:

53. [1196]

    The plaintiff went further and submitted for that reason the second aspect of the Crown’s case on motive was also entirely speculative and improper. I do not accept either submission. The fact that there might have been no direct evidence that Ms Byrne told the plaintiff she no longer wanted to be in a relationship with him is not inconsistent with her having intimated that she wanted to end the relationship, either to him or to others. I see nothing in the way the Crown put its case on the second aspect of motive that warrants it being described as “entirely speculative” [790] or that there was any impropriety in Mr Tedeschi advancing it.

54. [1197]

    Although not advanced at this particular point in the developing Crown submission that the relationship between the plaintiff and Ms Byrne was rapidly and irretrievably deteriorating, and that Ms Byrne was in fear of the plaintiff’s reaction to her unilateral decision to terminate the relationship were she to have announced it, the Crown also relied upon the evidence of Mr Georgiou (also set out in summary above) in which he recounted conversations with Ms Byrne in which she told him not only that the relationship with the plaintiff had deteriorated and she “wanted out”, [791] but that she was so fearful of the plaintiff’s reaction were she to announce it that at times she felt fearful for her life. The plaintiff identified what he contended were “significant issues with Mr Georgiou’s evidence and his credibility” (again all matters in issue in the trial).

55. [1198]

    At pars 189 to 191 of his submissions, the plaintiff details the circumstances in which Mr Georgiou contributed to the ongoing investigation after the Sufficiency of Evidence Report had been provided to the DPP, referable to multiple citations in the court book. It would appear that the complaint is that Mr Georgiou’s evidence was also “corrupted” having emerged nine and a half years after the events he described and involving (what the plaintiff contended were) conversations with Ms Byrne which were of limited reliability and probative value. It was also submitted that concerns about Mr Georgiou’s credibility and reliability would have been known to Mr Tedeschi not only because of Mr Georgiou’s statement, but because of a letter of assistance that had been provided by Det Insp Jacob after the plaintiff’s trial. It is not clear to me what the plaintiff would invite the Court to conclude from the recitation of that material, save as to advance the submission that there was some unspecified “unfairness” in the evidence from Mr Georgiou being adduced at the plaintiff’s trial. For my part, these were issues that were clearly ventilated at trial and, save for the complaint in par 16.51 of the FASC that “the defendant did not disclose to the plaintiff’s lawyers the criminal history of Mr Georgiou’s criminal history before or during the trial” (an allegation not developed in final submissions), there is no suggestion that reflects adversely against Mr Tedeschi as prosecutor.

56. [1199]

    Mr Georgiou’s evidence, coupled with the argument at the gym, was ultimately relied upon by Mr Tedeschi to encourage the jury to accept that it was Ms Byrne and the plaintiff arguing outside Mr Doherty’s window on the night before her death. In reasoning to that conclusion, Mr Tedeschi invited the jury to “work back” from Ms Byrne’s body being found at the bottom of the cliff; to the scream heard by Mr Doherty and the fishermen; to the argument that preceded the scream; and then to the argument Mr Doherty witnessed involving three people. In inviting the jury to find as a fact that it was Ms Byrne who was involved in that public display, and the plaintiff was the man who was aggressively arguing with her, Mr Tedeschi also invited the jury to conclude that she was not drunk, as Mr Doherty had thought, but distressed and overwhelmed by the plaintiff’s aggression.

57. [1200]

    The plaintiff does not advance the submission that was an impermissible line of reasoning per se (albeit it was the plaintiff’s case at trial that it was not compelling for a variety of reasons). What the plaintiff does complain about is the way in which Mr Tedeschi sought to align the argument at the gym (where Ms Byrne was sobbing uncontrollably with her head in her hands) with what Mr Doherty saw and heard from his window, by attributing to Mr Doherty that he saw the girl “sobbing” when this was not his evidence and not an inference available to be drawn from his evidence.

58. [1201]

    In referring to Mr Doherty’s evidence, Mr Tedeschi submitted to the jury as follows:

59. [1202]

    That submission was endorsed in Question 21 of “the 50 Questions” which Mr Tedeschi impermissibly invited the jury to consider in advance of hearing defence counsel’s closing address. Question 21 was in the following terms:

60. [1203]

    The fact that Mr Tedeschi crafted and read “the 50 Questions” (without intervention by the trial judge) was also the subject of complaint under the sixth ground of appeal upheld by the Court of Criminal Appeal. His use of “the 50 Questions” is, as I have noted, a further particular of what the plaintiff submitted in these proceedings is evidence of Mr Tedeschi’s malice. It will need to be separately considered.

61. [1204]

    Mr Tedeschi was cross-examined and, in my view, to considerable effect in the proceedings, as to how he could justify attributing to Mr Doherty hearing the girl “sobbing” when there was no evidence at all to support that submission. After reminding Mr Tedeschi of Mr Doherty’s evidence at trial (the evidence I have summarised above), Mr McClintock asked the following questions:

62. [1205]

    Mr McClintock then took Mr Tedeschi to the second occasion in his closing submissions when he had used the word “sobbing” in describing what Mr Doherty saw of the girl, as to which Mr Tedeschi again advanced the following justification:

63. [1206]

    Finally, it was put to Mr Tedeschi that, given that Mr Doherty could not decipher what was being said in the argument, there was nothing in his evidence to support the proposition that it was allied with Mr Georgio’s evidence that Ms Byrne told him she wanted “out of the relationship” but did not know how to do it. The cross-examination continued:

64. [1207]

    In his February statement Mr Tedeschi appealed to the governing Bar Rules and Director’s Guidelines in maintaining the position that he was entitled to advance the submissions the subject of detailed challenge above.

65. [1208]

    In short, the plaintiff submitted that Mr Tedeschi’s closing submissions as they related to the “sobbing girl” that Mr Doherty saw, being Ms Byrne, and the context in which those submissions were put, were without evidential foundation, such that his ultimate submission that the jury could draw a link between Ms McVeigh’s evidence and Mr Doherty’s evidence to conclude that it was the plaintiff and Ms Byrne who were engaged in both incidents was evidence of malice. The defendant did not address this aspect of the plaintiff’s submissions in its closing submissions.

66. [1209]

    Mr Tedeschi’s evidence that he was satisfied that there was a sufficient connection between Ms Byrne “sobbing” in the gym fight (with her head in her hands) when being berated by the plaintiff, and the girl on Military Road “moaning” (with her head in her hands) whilst being berated by a man, so as to allow for the submission that the girl on Military Road was Ms Byrne and the man shouting at her was the plaintiff involved, in my view, an extremely strained rendering of the evidence. While I seriously question the propriety of a Crown Prosecutor going to the lengths Mr Tedeschi went to in advancing that submission, in particular by not doing so transparently by reminding the jury that Mr Doherty did not say the girl was “sobbing” but that they might find “moaning and “sobbing” to be the same display of distress, the justification he advanced in his evidence. I am not persuaded the approach he took so far exceeded the legitimate reach of his duties as a prosecutor that I can arrive at the firm conclusion that it amounted to prosecutorial misconduct.

67. [1210]

    A further example of what the plaintiff submitted was a submission advanced by Mr Tedeschi without a sufficient evidential basis concerned the gym fight. In reference to the evidence of Ms McVeigh, who identified Mr Redding with the plaintiff at the time of his argument with Ms Byrne, Mr Tedeschi advanced the following submission:

68. [1211]

    The plaintiff submitted that this was a further improper attempt to link Mr Rivkin to Ms Byrne’s death. The plaintiff submitted that Mr Tedeschi’s submission amounted to “speculation verging on fabrication”.

69. [1212]

    In cross-examination, Mr Tedeschi defended his right to advance that submission, consistent with the explanation he gave in his second February statement by denying that the submission was speculative and unsupported by the available evidence. He again invited consideration to what he referred to as the totality of submissions on motive and the evidence in the proceedings that he considered grounded that submission. In his February statement he extracted that part of his closing submission extracted above. He went on to advance the basis for his rationale for advancing that submission as follows:

70. [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.

71. [1214]

    After advancing the submission that the jury would find that the argument at the gym “must have been something very serious, and it must have had something to do with the accused’s employment with Rene Rivkin”, [798] Mr Tedeschi then led into a submission of the significance of Mr Rivkin’s proprietorship of Offset Alpine Ltd, which included the following submissions in summary:

72. [1215]

    Mr Tedeschi then made the following submission to the jury:

73. [1216]

    Finally, Mr Tedeschi made the following submission to the jury:

74. [1217]

    Each of these submissions were then effectively repeated in Questions 4 to 9 of the “50 Questions” Mr Tedeschi posed for the jury.

75. [1218]

    The plaintiff submitted that there was no evidentiary basis to put the submission that the plaintiff had “insider trading information”, a proposition which the plaintiff submitted must have been intended by Mr Tedeschi to relate to the notorious and serious offence of insider trading comprehended by s 1002G of the Corporations Act. That submission was endorsed in Question 7 of the “50 Questions” as extracted above.

76. [1219]

    In his evidence Mr Tedeschi sought to defend both his submissions to the jury referable to “insider trading information” and its inclusion in Questions 4 to 9 of the “50 Questions” on the basis that what the plaintiff had was “inside information” or “insider trading information”, since there was evidence that he was telling people that the shares in Offset Alpine were going to go up in value and they should buy them. Mr Tedeschi claimed that he was not alleging that the plaintiff was improperly trading in that information, or that the information was not generally available.

77. [1220]

    The plaintiff’s detailed submissions to the effect that the Crown had no trading records to show when people associated with the plaintiff purchased shares, or any announcements from the Australian Securities Commission to show the company had either released or not released information at any time relevant to the acquisition of shares is plainly correct. The question is whether I am satisfied Mr Tedeschi intended by his submission to prejudice the jury in an improper way by alleging collateral criminal conduct on the part of the plaintiff. For my part, I do not read the submission that way. That, however, is not the end of the matter since Mr Tedeschi continued in his closing submissions to suggest that Ms Byrne had information about Mr Rivkin that would concern him in some unidentified way. In circumstances where I am satisfied there was no evidence that Ms Byrne had any information, confidential or otherwise, such as might have supported the submission that the plaintiff was motivated to kill her to ensure that information did not become public, the submission should not have been advanced.

78. [1221]

    As the plaintiff submitted, it was inherent in Mr Tedeschi’s submissions on motive, and what was said to be the relationship between Mr Rivkin, the plaintiff and Ms Byrne upon which the Crown case on motive was based, that the plaintiff was compelled to kill Ms Byrne to both protect Mr Rivkin and to secure his relationship with Mr Rivkin for the perceived status and financial security it afforded him. The plaintiff’s ultimate submission is that the evidence available to Mr Tedeschi at the commencement of proceedings and throughout the maintenance of proceedings to verdict could never sustain that proposition. The plaintiff submitted that, on a proper interrogation of the available evidence and the inferences that might legitimately be drawn from that evidence, the Court would conclude that Mr Tedeschi must have realised that his attribution of motive was unsustainable and that because he knew the Crown case was seriously weakened without evidence of motive, he created a fiction to supply one, including by the exploitation of public rumour and innuendo. The plaintiff submitted that in taking that approach Mr Tedeschi acted maliciously and contrary to his obligations as a prosecutor.

79. [1222]

    I have already found that the allied and interrelated secondary motive that the relationship between the plaintiff and Ms Byrne had progressively deteriorated to the extent that, although she did not make it known in the days immediately preceding her death, she had in fact determined to terminate the relationship did have some evidential support (albeit other evidence was available to contradict it). However, in the way the Crown advanced the issue of motive, the two motives were necessarily allied. Again, Mr Tedeschi in his comprehensive answer to the case that he knew would be mounted against him by the plaintiff in these proceedings (namely, that the Crown was without evidence of motive sufficient to support a prosecution for murder and that his mounting of such a case evidenced malice), refers at length to the evidence, and the legitimate inferences which he contends were available to be drawn from the evidence, and what he believed then and continues to believe now was his entitlement to put the submission on motive in his closing address.

80. [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.

81. [1224]

    It was accepted in these proceedings that Ex DJ at the plaintiff’s trial was an enlargement of a section of an aerial photograph of the Gap, taken on an unspecified date but no earlier than 28 May 2003. That was established as a fact for the first time in the plaintiff’s conviction appeal. At the plaintiff’s trial, it was exhibited as a photograph taken in about 1996, being both tendered and admitted into evidence on that basis and captioned in that way when distributed to the jury.

82. [1225]

    It was the plaintiff’s case on appeal – a position maintained in these proceedings – that Ex DJ was an exhibit of crucial significance to the Crown case given the Crown’s reliance on the evidence of A/Prof Cross as to the availability of a 4-metre run-up from the northern ledge in his calculation of the capacity of a person to “spear throw” Ms Byrne to Hole A, and the experts who gave consideration to A/Prof Cross’s calculations and opinions were also invited to take into account a run-up of that length as part of their assessment of the validity of A/Prof Cross’s analysis and conclusions. It was A/Prof Cross’s evidence at trial (as to which the other experts offered their comments) that with a 4-metre run-up, it would only have been possible for Ms Byrne to have jumped from the northern ledge and landed in Hole A if she were well above average athletic ability, possibly a high school champion, but with a 5-metre run-up the top 25 per cent of females of average athletic ability could jump the distance.

83. [1226]

    In these proceedings the defendant sought to counter the plaintiff’s submission as to the significance of the 4-metre run-up, inter alia, on the basis that the Crown at trial was entitled, under a ruling from the trial judge, to also invite A/Prof Cross’s consideration to Hole B as the landing place as an alternative to Hole A, a position which was necessarily associated with a different launch point on the cliff top (being the southern ledge) as to which Ex DJ was irrelevant. The defendant also relied upon A/Prof Cross’s evidence in these proceedings that he did not regard the 4-metre run-up on the northern ledge as crucial because he had measured launch speed with both a 4-metre run-up and a 5-metre run-up.

84. [1227]

    The photograph which became Ex DJ was first referred to in A/Prof Cross’s second report in June 2004, where it was annexed as Figure 17. It was produced by him cropping an aerial photograph of the Gap. The aerial photograph was included in the report as Figure 4. Figure 17 was captioned by A/Prof Cross as a photograph taken in “about 1996”. In the caption, he drew attention to what he described as “bush growing up against the safety fence limiting the run-up distance across the ledge to 4 metres”. (The ledge there referred to was the northern ledge, being that section of the cliff top A/Prof Cross appointed as the launch site associated with Hole A.) A/Prof Cross attributed that information to what he said he had been told by Det Sgt Quigg, presumably when the larger aerial photograph was supplied to him in preparation for his use in the second report.

85. [1228]

    At the time of giving his evidence at trial A/Prof Cross knew the photograph was not taken in 1996 but in 2003. He gave evidence on the appeal that he came to learn of that state of affairs in September 2006. He did not give that evidence in the trial.

86. [1229]

    At trial Mr Tedeschi asked the following questions of A/Prof Cross concerning the photograph (Ex G) [803] :

87. [1230]

    Mr Tedeschi accepted in his evidence in these proceedings that he had Ex DJ in his mind when he addressed A/Prof Cross’s attention to the photograph in this aspect of his evidence and that it was Ex DJ he was intending to tender. Once admitted, Ex DJ was described as “some photographs of the northern rock platform, taken in about 1996, showing the bush growing against the safety fence”. [805] It was distributed to the jury bearing this caption.

88. [1231]

    A/Prof Cross confirmed in his evidence in these proceedings that he knew that the jury was being provided with a wrongly dated photograph of the environs of the northern ledge. A/Prof Cross claimed that he said nothing at that time because he was told by the Crown Prosecutor at the time of tender there would be evidence that the photograph did in fact represent the situation in 1995 or 1996. The defendant submitted that is borne out by A/Prof Cross’s further evidence in these proceedings that when he was told in 2006 that the photograph annexed as Figure 17 to his report was wrongly captioned, he regarded it as significant that the wrong captioning be corrected and new photographic evidence be obtained to ensure the objective facts upon which he based his conclusions about a 4-metre run-up were accurate, particularly if it became clear that the available run-up exceeded 4 metres.

89. [1232]

    There are a number of issues, however, that arise from the fact that the photograph was admitted into evidence with the wrong date affixed to the photograph by its caption, and that at the point of tender Mr Tedeschi made express reference to the fact that the photograph was taken in about 1996.

90. [1233]

    In these proceedings a deal of continuing confusion persists as to the precise circumstances in which the photograph was first of all wrongly captioned and then, when that error surfaced, what was done by A/Prof Cross and the investigators who knew of the error to deal with the question of how the northern ledge actually presented in June 1995 and how that information should be assembled for the purposes of the trial.

91. [1234]

    The defendant submitted, and I accept, that A/Prof Cross’s evidence and the evidence of various police officers is difficult to disentangle many years after the event as they each sought to reconstruct the course of events relating to the provenance of the photograph (Ex DJ) and what was done, and when, and by whom, to obtain other photographic evidence of the condition of the cliff top on the northern ledge or oral evidence from officers of the Parks and Wildlife Service who have responsibility to maintain the bushes on the cliff edge, and the condition of the environs at the Gap, more generally. The defendant also accepted that there is a clear conflict between the evidence of A/Prof Cross and Det Sgt Quigg in these proceedings which does not admit of ready resolution. A/Prof Cross gave evidence that Det Sgt Quigg told him in about September 2006 that the date on Figure 17 was wrong, a proposition Det Sgt Quigg denied, asserting that were he to have learnt in 2006 that the date on the photograph was wrong, he would have alerted Det Insp Jacob immediately to that fact, well in advance of the trial.

92. [1235]

    It appears that the plaintiff accepts that A/Prof Cross’s conduct with respect to the photograph does not have any relevant bearing on whether he is a prosecutor for the purposes of the tort, even were I to reject his evidence and prefer the evidence of Det Sgt Quigg on that issue. Of course, were he to have been attributed the status of prosecutor, and were I to find that he facilitated the admission into evidence at the plaintiff’s trial of a photograph he knew was not just misleading but completely wrong, that would be powerful evidence of his mala fides supporting a finding of malice, given at least the prima facie significance of the photograph in the Crown case for the reasons discussed.

93. [1236]

    The high water mark of the plaintiff’s submission that A/Prof Cross knew at some time prior to Mr Tedeschi’s advice to Mr Cowdery in February 2006 that the prosecution should be initiated, that the photograph (then Figure 17) was wrongly captioned, and with that knowledge he deliberately sought to mislead Det Insp Jacob and Mr Tedeschi as to the extent of the available run-up on the northern ledge to exclude the possibility of Ms Byrne running five metres and diving to her death, is that I would reject A/Prof Cross’s evidence that he was misled by Det Sgt Quigg into believing the photograph was an accurate representation of the presentation was a lie.

94. [1237]

    The defendant submitted that that is not a conclusion the Court could reasonably make. The defendant submitted that it is clear beyond doubt that A/Prof Cross was mistaken about the reliability of the photographic evidence and that, as a result, he made a series of incorrect assumptions as to what that evidence was capable of showing as to the actual presentation of vegetation on the ledge at the relevant date, but, the defendant submitted, to attribute to him a determination to lie about it strains credulity.

95. [1238]

    In the plaintiff’s final submissions he also sought to make the case that, irrespective of A/Prof Cross’s confusion as to what was being said about the photograph at the point of tender (a benign explanation for his failure to make it clear in his evidence at trial that the photograph was wrongly captioned), Mr Tedeschi deliberately, that is, knowingly and consciously, tendered Ex DJ through A/Prof Cross with the full knowledge that he had no evidence that the photograph was taken “in about 1996”, having been told by A/Prof Cross in his evidence at the point of tender that the earliest photographs he had were taken in 1999. The proposition advanced by the plaintiff is that Mr Tedeschi’s conduct in tendering the photograph uncorrected, or at the very least not seeking clarification that the photograph was correctly dated before he tendered it, was a serious breach of his prosecutorial duties and further evidence of malice.

96. [1239]

    The plaintiff submitted that in his supervisory role as senior Crown counsel, Mr Tedeschi also failed (deliberately so, it must be assumed) to permit Mr McKay to show Mr Bird Ex DJ with a reference to the photograph being taken in 1996, because he knew that that photograph was wrongly dated, undermining any probity in Mr Bird’s evidence as to other upgrading work on the fence.

97. [1240]

    For the plaintiff to make good that aspect of his case, I would need to be persuaded that the evidence was deliberately structured by Mr Tedeschi to advance the prosecution case as to the availability of the 4-metre run-up and the related impact on launch speed. I am not persuaded the plaintiff has made good that case.

98. [1241]

    Mr Tedeschi did tender the photograph captioned as taken in “about 1996” despite accepting that he believed that A/Prof Cross’s evidence was that the photograph had been taken in 1999. Mr Tedeschi claimed that he thought the reason why he asked A/Prof Cross to assume that there would be contrary evidence was because he thought that A/Prof Cross might be wrong about the date of the photograph. Mr Tedeschi gave an explanation that he thought that the source of that evidence was Mr Bird and the police officer who prepared the photogrammetry plan, Det Streatfield. There are only two inferences available; either Mr Tedeschi did not have that police officer or Mr Bird in mind when he led the evidence from A/Prof Cross or he did have that belief but did not lead evidence from him when he discovered the photograph was not taken in around 1996. I am unable to resolve that issue one way or the other.

99. [1242]

    It is no part of the plaintiff’s case that there was some arcane conspiracy on the part of A/Prof Cross, Mr Tedeschi and the police to conceal the manner in which the photograph came to be incorrectly captioned and then later to conceal the knowledge that various people had of that matter. In the result, I am satisfied that the incorrect caption on Ex DJ came to be applied to the photograph erroneously but innocently, and that by reason of inadvertence, particularly on the part of A/Prof Cross who ought to have ensured Mr Tedeschi was aware that the photograph was incorrectly captioned, his knowledge that the photograph was incorrectly captioned was neither clearly communicated to police and not communicated to Mr Tedeschi at all. That being the case, the particulars of malice referable to (k) and (l) above are not established.

100. [1243]

     One aspect of the plaintiff’s account to police which Mr Tedeschi submitted supported the Crown case that he was at Watsons Bay at 11:30pm on 7 June 1995 when (on the Crown case) Ms Byrne descended from the cliffs to her death, was his assertion that he walked nine city blocks to collect the red Ford utility from The Sanctuary carpark, rather than access one of Mr Rivkin’s vehicles in one of two carparks closer to where he lived - either the Kings Cross carpark, where the Suzuki Vitara was customarily parked, or the ABC carpark.

101. [1244]

     The assumption underpinning that analysis was that a large number of Mr Rivkin’s vehicles were stored at both carparks, and if the plaintiff were genuinely intent on searching for Ms Byrne in a state of high anxiety and concern for her welfare, he had access to any number of them, having keys to all of them.

102. [1245]

     In his opening submissions, Mr Tedeschi submitted that the plaintiff did not take any of the available vehicles because he did not want to leave an electronic record of when he had left his apartment, ostensibly to search for Ms Byrne, both carparks having an electronic security system which would have left an electronic trace of his movements. Mr Tedeschi then alerted the jury to the fact that they would hear evidence from Mr Freris who was the only person in Mr Rivkin’s employ who used the red utility and who would tell the jury he had no explanation for why the plaintiff would have gone to the Sanctuary building in Crown Street to get the red Ford utility when other vehicles were available to him.

103. [1246]

     Mr Tedeschi went on to say that the jury could also expect to hear evidence from an attendant at the Kings Cross carpark that the plaintiff spoke to him on the morning of 8 June 1995, asking for a printout showing the movements of Ms Byrne’s white Suzuki to provide to the Coroner. It was the Crown case that was a lie. The coronial inquiry had not been initiated at that time, and no request had been made from the Coroner’s Court or anyone else for that document. There was evidence that the document was provided to the plaintiff at his request but he has never produced it. As at the time of Strike Force Irondale that information was no longer retrievable from the business records of the carpark. The electronic information which would have shown Ms Byrne’s movements on 7 June 1995 referable to the movement of the Suzuki Vitara was therefore not available to investigators. It is the Crown case that the plaintiff wanted access to the records in order to create “a story” about Ms Byrne’s movements, coincident with the recorded movements of her vehicle, to enable him to fabricate an account that she had committed suicide.

104. [1247]

     To illustrate the fact that, on the Crown case, the plaintiff walked a considerable distance to obtain access to a vehicle to go in search of Ms Byrne, an exhibit was prepared which designated the plaintiff’s apartment relative to the Kings Cross carpark, the ABC carpark, and the carpark under The Sanctuary where the red utility was accessed by coloured markers.

105. [1248]

     When giving his evidence, Mr Freris had his attention directed, via that exhibit, to the Kings Cross carpark. He gave evidence that in June 1995 there were six or eight sports cars from Mr Rivkin’s collection that the plaintiff used regularly, including the Bentley and the Rolls Royce, and less used collectible vehicles. Mr Freris was then taken by Mr Tedeschi to the carpark marked as the ABC Carpark where he said there were probably another ten collectable or expensive everyday vehicles parked.

106. [1249]

     In these proceedings, the plaintiff complains that within the brief of evidence there was a statement from Mr Macmillan dated 26 June 1997, prepared in his capacity as the proprietor of both the ABC and Kings Cross carparks, in which he stated, unequivocally, that no motor vehicles belonging to Mr Rivkin were housed in the Kings Cross carpark in June 1995, and that, knowing that to be the case, Mr Tedeschi deliberately did not lead that evidence from him. The plaintiff submitted that Mr Tedeschi made a tactical decision not to adduce that evidence, a further example of the impermissible approach he took to his prosecutorial duties as the Crown Prosecutor which evidences his malice.

107. [1250]

     In closing submissions, Mr Tedeschi in effect repeated what he had opened on to the jury by posing a number of rhetorical questions, including:

108. [1251]

     Mr Tedeschi went on to submit that by taking the red utility from The Sanctuary – a vehicle that was regularly driven by Mr Freris and only by Mr Freris – he was depriving him of the use of the vehicle were he to have needed it. Mr Freris had given evidence that the plaintiff never used the red pickup “except to move stuff”, [807] a position which was contradicted by the plaintiff in his first statement to Cst Woods where he said:

109. [1252]

     Mr Tedeschi submitted to the jury that that was a lie as the red utility was not a car that the plaintiff normally used.

110. [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.

111. [1254]

     The Court then intervened to afford Mr Tedeschi the opportunity to review Mr Macmillan’s evidence and to reflect upon why he was called, and also to have Mr Tedeschi reflect upon Mr Terracini’s cross-examination of Mr Macmillan on the issue of the Rivkin vehicles being housed in the Kings Cross carpark, and any re-examination by him. A short adjournment was then taken.

112. [1255]

     On resumption, Mr Tedeschi maintained the explanation that, in his examination in chief and his re-examination of Mr Macmillan, he must have been confusing the Kings Cross carpark and the ABC carpark. Mr Tedeschi’s explanation was based in part upon him having apparently attempted in re-examination to enquire as to whether the plaintiff would park Mr Rivkin’s vehicles that he might be using from time to time as part of his chauffeuring duties in the Kings Cross carpark, as distinct from that being a carpark where Mr Rivkin’s vehicles were customarily or permanently housed. When asked those questions in re-examination Mr Macmillan gave evidence that he had no recollection of seeing or being told that the plaintiff was driving any vehicle parked in the Kings Cross carpark other than the Suzuki Vitara. Mr Tedeschi also agreed that in cross-examination Mr Macmillan said that Mr Rivkin did not park any cars in the Kings Cross carpark before 1997; a matter, incidentally, which Mr Macmillan confirmed in re-examination.

113. [1256]

     Mr McClintock put to Mr Tedeschi that his claim to a state of confusion was untrue, and knowingly so. Mr McClintock also put the proposition to Mr Tedeschi that there was no reasonable possibility of confusion between the three carparks given the clearly marked Crown exhibit and Mr Freris’ evidence as to the location of the three carparks in the evidence that was led from him. Mr McClintock suggested that even if confusion had infected Mr Tedeschi’s understanding at the time that Mr Macmillan was called to give evidence, after his cross-examination there could have been no doubt in Mr Tedeschi’s mind that Mr Macmillan’s evidence as to the availability of Mr Rivkin’s vehicles in the Kings Cross carpark at the relevant time was contrary to that of Mr Freris and, that being the case, his closing submissions ought to have reflected that fact. When taken to his closing address, Mr Tedeschi continued to maintain the proposition that confusion still reigned.

114. [1257]

     In final submissions, the plaintiff contended that Mr Tedeschi’s evidence was entirely unsatisfactory, noting that it was not until the Court’s intervention in the course of cross-examination by Mr McClintock, where Mr Tedeschi was invited to reflect upon his evidence, that he accepted that there could have been no confusion or mistake operating on his thinking since, as the extract from his closing submissions above makes plain, he had not only differentiated between the two carparks at Kings Cross but he differentiated between them by reference to the different number of Mr Rivkin’s vehicles housed in them and their makes and types. Mr Tedeschi then proffered the explanation that his failure to refer to Mr Macmillan’s evidence was through oversight, but not by deliberate admission. The plaintiff invited me to reject that explanation as untrue.

115. [1258]

     Clearly enough, the Crown case as opened and the subject of Mr Tedeschi’s closing submissions (that the applicant walked nine blocks to get a car when there were any number of cars closer) could not be maintained since the ABC carpark (where cars were available) entailed a much shorter walking distance to The Sanctuary. However, the plaintiff’s submission that Mr Tedeschi’s approach to Mr Macmillan’s evidence was evidence of his malice depends upon a positive finding that, knowing the content of Mr Macmillan’s statement, Mr Tedeschi deliberately chose not to elicit that evidence-in-chief and, once it was elicited in cross-examination, deliberately omitted any reference to it in his closing submissions so as to maintain the integrity of the submission he has advanced that the plaintiff’s version of events as to how he came to pick up the red Ford utility should be rejected by the jury as untrue and, in turn, to seek to persuade them that the plaintiff’s account of his movements generally on 7 June 1995 was a fabrication designed to conceal his involvement in Ms Byrne’s death.

116. [1259]

     Were I satisfied there was deliberation in Mr Tedeschi’s approach, it would follow, as Mr Tedeschi ultimately accepted, that that would be a breach of his prosecutorial duties. The defendant submitted that is not a conclusion I would reach. The defendant also submitted that Mr Tedeschi’s failure to refer to Mr Macmillan’s evidence in closing could have no ultimate bearing on the issue of malice when the significance of the evidence relating to the carparks generally was that, irrespective of the availability of cars in the Kings Cross carpark, the plaintiff did walk directly passed the ABC Carpark (which was incidentally closer to his home) to obtain the red utility to avoid leaving an electronic record of his movements. The defendant submitted that on a fair reading of Mr Tedeschi’s evidence on this issue, upon which he was comprehensively tested and retested in cross-examination, I could not reach a finding that his claim to confusion and/or error was a lie told to conceal his manipulation of the evidence at the plaintiff’s trial.

117. [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 McMillian’s evidence was a lie or so untenable as to justify it being rejected as unworthy of any weight. The related finding that he was probably being dishonest in attempting to proffer an explanation for his deliberate misstatement of the evidence is also not a finding I can confidently make.

118. [1261]

     Exhibit DO at the trial (Ex 96(DO) in these proceedings) is a series of five photographs taken on 15 April 2004 during a site visit to the Gap, the last two of which depict mannequins placed head first into Hole A. The photographs were extracted from A/Prof Cross’s second report.

119. [1262]

     Exhibit X at the trial (Ex 96(X) in these proceedings) is a photograph also taken on 15 April 2004. It depicts a mannequin (apparently the same mannequin as that depicted in Ex DO) inserted into Hole A, oriented in the same direction as in Ex DO with the same man present in the foreground of both photographs.

120. [1263]

     Mr Tedeschi led evidence from Sgt Powderly at trial to the effect that the mannequin in Ex DO was oriented differently to the orientation of Ms Byrne’s body when it was recovered. Sgt Powderly gave the following evidence:

121. [1264]

     Following this exchange, Sgt Powderly was invited by Mr Tedeschi to mark the orientation of the mannequin’s head and feet. This photograph became Ex X.

122. [1265]

     The significance of the orientation of Ms Byrne’s body, including her legs and feet, became apparent when Sgt Powderly gave the following evidence (over objection) in cross-examination:

123. [1266]

     In cross-examination, Sgt Powderly was asked whether he thought it more likely Ms Byrne descended to her death from the northern rock ledge or the corner fence post, as to which he gave the following evidence:

124. [1267]

     The plaintiff submitted that the single feature of Sgt Powderly’s evidence that was consistent from his committal evidence through to his evidence at trial was that Ms Byrne’s feet were pointing “straight up at the corner fence post”, [812] something A/Prof Cross was well aware of as reflected in his email of 6 December 2003 to Det Insp Jacob where he said:

125. [1268]

     In the course of Mr Tedeschi leading evidence from A/Prof Cross, the following questions were asked:

126. [1269]

     It was put to A/Prof Cross during cross-examination in these proceedings that the orientation of the mannequin in Hole A in Ex DO was inconsistent with what Sgt Powderly had told him was the orientation of Ms Byrne’s body when he recovered it. In response, he said:

127. [1270]

     The plaintiff submitted that A/Prof Cross knew that Ex DO did not reflect the position and orientation that Sgt Powderly had indicated Ms Byrne’s body occupied at the time her body was retrieved, and that his evidence that Sgt Powderly had told him “that is how he found her” was “patently false”.

128. [1271]

     Given that I have found that A/Prof Cross is not a prosecutor for the purposes of the tort, the only remaining relevance to the tender of Ex DO in these proceedings is the plaintiff’s allied submission that Mr Tedeschi knew Ex DO was misleading when compared to the evidence of Sgt Powderly, but that he tendered the photographs through A/Prof Cross notwithstanding, in order to present a more compelling account as to how Ms Byrne descended from the northern ledge to Hole A. This was said by the plaintiff to be motivated by a desire to overcome Sgt Powderly’s evidence that the corner fence post was the more likely launch site. The defendant complains that the ulterior purpose the plaintiff attributes to Mr Tedeschi was not put to him in breach of the rule in Browne v Dunn. The plaintiff submitted that in doing so Mr Tedeschi breached his obligations to present the Crown case objectively, fairly and honestly. [816] Mr Tedeschi rejected the proposition that he knew A/Prof Cross was not telling the truth about the orientation of the body.

129. [1272]

     The apparently misleading purpose for which Ex DO was tendered was said by the plaintiff to be evidenced by Mr Tedeschi tendering the exhibit, and the questions of A/Prof Cross immediately thereafter as to the trajectory Ms Byrne took in her descent from the northern ledge to Hole A. The plaintiff submitted these questions would have been significantly less effective if Ms Byrne’s legs and head had been orientated 90 degrees away from the northern ledge, as described by Sgt Powderly.

130. [1273]

     During cross-examination, Mr Tedeschi rejected the proposition that he had tendered Ex DO with the objective of misleading the jury:

131. [1274]

     I am satisfied that Ex DO did not reflect the precise orientation of Ms Byrne’s body as described (and marked on Ex X) by Sgt Powderly because, as Sgt Powderly said in his evidence, the mannequin “needs to be rotated 90 degrees around so that the feet are actually pointing towards where the camera shot is taken from”, [818] a matter Mr Tedeschi ought to have known (and apparently did know) given he led that evidence from Sgt Powderly to that effect. Notwithstanding, I am not satisfied that the tender or use to which Ex DO was put was ultimately intended by Mr Tedeschi to mislead the jury, nor was the tender or the use of the photographs in breach of his obligations as a prosecutor to put the case objective, fairly and honestly. That being so, the question as to whether there was a breach of the rule in Browne v Dunn does not arise.

132. [1275]

     I am also not satisfied that the tender and provision of Ex DO to the jury, rather than the use of Ex X as marked by Sgt Powderly showing the correct orientation of Ms Byrne’s body, unfairly detracted from Sgt Powderly’s oral evidence as to the orientation of Ms Byrne’s body, or that it was intended by Mr Tedeschi to do so. It was Mr Tedeschi who invited Sgt Powderly to mark the proper orientation of Ms Byrne’s body (thus creating Ex X which was then tendered). Mr Tedeschi also led from Sgt Powderly his opinion as to the point from which Ms Byrne left the cliff top, as to which Sgt Powderly said:

133. [1276]

     I am not satisfied that this particular of malice is made out.

134. [1277]

     During Mr Tedeschi’s closing address he provided to the trial judge a list of 50 questions which he identified as “the salient questions in order to decide the outcome of the case”. He indicated his intention to hand to the jury the 50 questions in writing. Defence counsel objected to that proposal in its entirety. His Honour observed as follows:

135. [1278]

     Without objection from defence counsel, however, Mr Tedeschi was permitted by the trial judge to refer to each of the 50 questions in turn and in the form in which they had been framed in writing as part of his closing submissions. They are set out in full as follows:

136. [1279]

     In drawing attention to “the 50 Questions”, he invited the jury to consider any answers Mr Terracini might volunteer to the questions he had posed.

137. [1280]

     In his evidence in these proceedings Mr Tedeschi admitted that he read the questions slowly so the jury could take down notes of each of the questions for their consideration. Mr Tedeschi commenced his recitation of the list of questions with the exhortation that while it was not for the accused to prove anything, he said:

138. [1281]

     In these proceedings Mr Tedeschi acknowledged that having regard to the judgment of the Court of Criminal Appeal, it is not now permissible to ask rhetorical questions because of the risk of reversing the onus of proof. He claimed that he was not aware of that risk in framing “the 50 Questions” and citing them as part of his address. He rejected the proposition that in taking that approach he was complying with the “letter” of the trial judge’s direction but not its spirit. He gave evidence that he understood he was prohibited from circulating a document for the jury to take with them into the jury room, but that he was permitted to have the questions he wished to pose for the jury delivered orally and for the jury to note them down.

139. [1282]

     In final submissions the plaintiff submitted that contrary to Mr Tedeschi’s evidence, the Court would be satisfied that he was in fact aware of the risk that he was reversing the onus of proof by posing “the 50 Questions” and, notwithstanding, he proceeded to read slowly and carefully through the questions with the objective of obtaining an illegitimate tactical advantage in order to secure a conviction. The plaintiff submitted that no prosecutor intending to present his or her case in a balanced or fair way would ever have put the “50 rhetorical questions” in the form recited in Mr Tedeschi’s closing address.

140. [1283]

     It was the plaintiff’s submission that long-standing authority, of which Mr Tedeschi must be taken to be aware, established that many, if not most, of the questions were objectionable and improper by their terms. The plaintiff further submitted that Mr Tedeschi ought to have been aware that the form of the questions also involved a breach of s 20(2) of the Evidence Act, consistent with the seminal principle that an accused person has a right to silence.

141. [1284]

     In short, it is the plaintiff’s submission that the questions were designed as an advocacy technique to ensure a conviction, that objective being contrary to the primary duty of a prosecutor not to fight for a conviction. Put another way, the plaintiff submitted that for Mr Tedeschi to believe that it was acceptable to ask the 50 questions is highly suggestive, if not confirmatory, of his impermissible approach as a prosecutor and a wholly impermissible objective in straining for a conviction.

142. [1285]

     Despite there being no objection from Mr Terracini to the course Mr Tedeschi signalled he intended to take, as a Crown Prosecutor, the defendant accepted that Mr Tedeschi had an independent responsibility to abide by his ethical and legal obligations. The defendant submitted, however, that the fact that Mr Tedeschi determined to proceed as he did does not establish that he set out to deliberately take an improper course with the intention of unfairly prejudicing the plaintiff. The defendant invited the Court to accept Mr Tedeschi’s evidence in these proceedings that he had no appreciation at the time of trial that he was doing anything other than making a perfectly proper and legitimate submission based on the evidence, and that, for his part, he saw nothing unfair in the form of the questions or the process he adopted in bringing them to the jury’s attention.

143. [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.

144. [1287]

     The particular of malice in par 16.65 of the FASC is not made out.

145. [1288]

     The Crown case was opened to the jury on the basis that part of the composite of evidence upon which they would ultimately find that the plaintiff was at the Gap when Ms Byrne descended to her death was what Mr Tedeschi described as “the accused’s extraordinary knowledge of where Caroline’s body was”. [823] That submission was developed at length in the evidence adduced at trial from a number of people to whom the plaintiff spoke before the search for Ms Byrne commenced, during the course of the search and after Ms Byrne’s body was located. That evidence was, in turn, derived from statements obtained from a large contingent of civilian and police witnesses during the course of Strike Force Irondale and Det Insp Jacob’s analysis of that evidence, in combination with a range of other features of the plaintiff’s behaviour on 7 and 8 June 1995 (and the days and weeks which followed) which were relied upon as highly suggestive of guilt.

146. [1289]

     Given the significance of this evidence to the way Mr Tedeschi opened the Crown case to the jury, and the way the case was left to them in closing, it is necessary to set out the evidence in some detail.

147. [1290]

     In his opening remarks, Mr Tedeschi made the following statement (T33 at trial, Ex 71 in these proceedings) about what would become the “killer point”:

148. [1291]

     In his closing, Mr Tedeschi emphasised this point at the beginning of his argument. Towards the end of his closing, the first two of the Crown Prosecutor’s “50 Questions” were:

149. [1292]

     The plaintiff contends that the evidence before the Senior Crown Prosecutor, in the form of the police brief and evidence before the jury, did not support his submission that the only rational explanation for the plaintiff’s supposed knowledge of the location of Ms Byrne’s body at the base of the Gap was that he was present when she left the cliff top. The defendant’s submission is to the contrary. That evidence warrants being set out in some detail.

150. [1293]

     In pars 12 and 13 of the plaintiff’s statement on 12 June 1995, he said:

151. [1294]

     In the plaintiff’s record of interview with Det Insp Wyver on 14 June 1996, at Q40, he said:

152. [1295]

     The plaintiff participated in an interview with Det Sgt Jubelin in the United Kingdom on 23 July 2001. In response to a statement by Ms Natalie McCamley of 3 April 2000 in which she said he told her he saw shoes and directed the police to the area where the body was found the interview, the plaintiff stated:

153. [1296]

     Later in the same interview, after the plaintiff was read par 13 of his statement of 12 June 1995, in which he said he “showed a policeman where [he] thought [he] saw the shoes”, [829] he responded:

154. [1297]

     After discussing what he thought he had seen and the location where the body was found, in response to Q1061 the plaintiff said:

155. [1298]

     Peter Byrne gave the following evidence at trial:

156. [1299]

     Exhibit P at trial marked the location Peter Byrne and the plaintiff were standing as this interaction occurred.

157. [1300]

     Peter Byrne also gave the following evidence:

158. [1301]

     In recollecting the events later in the morning, he gave the following evidence:

159. [1302]

     On 7 August 2003, Peter Byrne participated in a walkthrough interview with Det Sgt Quigg. Upon reaching the point marked in Ex P the following interaction occurred:

160. [1303]

     In relation to the power of the torch the plaintiff was using to look down onto the rocks, he said:

161. [1304]

     Sgt Powderly gave the following evidence at trial:

162. [1305]

     In his walkthrough re-enactment of the early hours of 8 June 1995, also tendered at the trial, Sgt Powderly outlined the process of the search with the Mitrolux light. At approximately the southern end of the southern rock platform he stated:

163. [1306]

     After describing the recovery of the body, he stated (at 36:20):

164. [1307]

     Snr Cst Camwell gave evidence at trial that it was not possible to see the base of the gap with the police issue Magnalite torches and that the Mitrolux light was then used by Sgt Powderly to search the area beneath the cliffs and the walls of the cliffs.

165. [1308]

     In describing the search process she gave the following evidence:

166. [1309]

     On 10 June 1995 the plaintiff went to The Gap with Brett Cochrane and Peter Cameron. In his record of interview of 23 May 2001, Mr Cameron said that:

167. [1310]

     In her statement of 13 June 1996, Narelle Cook, a friend of Ms Byrne, gave evidence that:

168. [1311]

     In her statement of 3 April 2000 (included in Police Brief of Evidence, Ex 2 in these proceedings), Natalie McCamley, recounted the plaintiff describing his search for Ms Byrne in the following way:

169. [1312]

     On 12 April 1998 the Channel 7 “Witness” program was aired. It included Paul Barry separately interviewing Mr Byrne and the plaintiff in relation to their account of the events of 7 and 8 June 1995. Some of the relevant extracts are as follows:

170. [1313]

     In the preparatory remarks to his closing address, Mr Tedeschi said:

171. [1314]

     Mr Tedeschi then reviewed the evidence from a number of people, including Peter Byrne, Cst Griffith, and Narelle Cook, Natalie Butler, Kylie Watson (friends of Ms Byrne), where to each of them in a number of ways, the plaintiff made statements the net effect of which was, according to the Crown, that he was claiming to have seen the location where Ms Byrne’s body was ultimately found before it was found and to others, principally Ms Byrne’s friends, that he saw her shoes, part of her ankle skin and leg, and the lower leg of her tights. That body of evidence was comprehensively adduced and tested in the course of the trial. It was the Crown case, and Mr Tedeschi put it firmly, that the plaintiff could only have known where Ms Byrne’s body was, including its orientation and the clothes she was wearing, if he was with her when she descended from the cliff top.

172. [1315]

     After analysing that evidence, and after attributing to the plaintiff a motive for making the claim to have been able to see her feet (namely, part of his determination to convince everybody that Ms Byrne had committed suicide), Mr Tedeschi advanced the following submission:

173. [1316]

     This submission was repeated as Questions 1, 2 and 45 of the “50 Questions” as part of Mr Tedeschi’s closing address:

174. [1317]

     In these proceedings, the complaint the plaintiff makes is that the way in which the “bottom line” submission was presented to the jury was that the plaintiff knew “exactly” or “precisely” where the body was when there was no evidence that the plaintiff did anything other than to appoint “the approximate or general area” where the body was located (that is, towards Pyramid Rock). In his evidence Mr Tedeschi said that all he intended to suggest in the “killer point” submission was that the plaintiff knew the location where her body would ultimately be recovered, and with some precision, relative to the expanse of the cliff top around the Gap. As the defendant points out in its submissions (and with some force), the plaintiff’s concession through his counsel that he in fact pointed towards Pyramid Rock when he was with Peter Byrne cannot stand with the preceding submission that this aspect of the Crown case was “worthless” (which I take to mean evidence of no probative weight).

175. [1318]

     This is another example of what the defendant submitted is a highly selective analysis of Mr Tedeschi’s closing submissions and one which takes the plaintiff’s complaint about his use of the words “exact” and “precise” out of context. What the defendant emphasises as an unequivocal proposition is that in the early morning of 8 June 1995 it was too dark and overhung with mist to see the base of the Gap, such that any suggestion that the plaintiff knew the exact hole (being Hole A), which Ms Byrne had entered in a head first descent, would have been unpersuasive in any event. That (as the defendant submitted) was not the Crown case and was never suggested to be. Rather, it was the Crown case that the plaintiff was able to point toward Pyramid Rock, before being told about the fishermen having heard a scream orienting from that direction, and that he claimed to see her footwear, an assertion only capable of rational explanation if he knew she descended from the cliff edge from a position proximate to the northern ledge and that she was wearing white joggers at the time.

176. [1319]

     Whilst it would appear on first reading to be a complaint well-made that Mr Tedeschi claimed in his closing submissions that Sgt Gale gave evidence that before anybody could see a body the plaintiff said “that’s her” (given that one part of Sgt Gale’s evidence was that it was after the body had been located that he recalled the plaintiff saying “that’s her, I want to see her”), the plaintiff’s submission that that was a deliberate misstatement of the evidence cannot be accepted, given a further passage of Sgt Gale’s evidence (not quoted by the plaintiff in his final submissions) which reads:

177. [1320]

     So far as Mr Tedeschi’s emphasis on the plaintiff being able to comment upon Ms Byrne’s shoes as revealing his knowledge of what she was wearing, his evidence in these proceedings was that what he was seeking to advance by way of submission (and a submission he sought to clarify in a discussion with the trial judge) was that it showed:

178. [1321]

     In its submissions, the defendant emphasised that the evidence led at trial from Sgt Powderly and Snr Cst Woods was that the plaintiff asserted a knowledge of what Ms Byrne was wearing on the day of her death, although on his own account he had not seen her dressed at any time on 7 June 1995. The defendant submitted that the readily available inference, and an inference upon which the Crown was entitled to place significant reliance, was that he knew what she was wearing because he was with her when she died. The defendant went further and submitted as follows:

179. [1322]

     There is force in that analysis.

180. [1323]

     The plaintiff also submitted that Mr Tedeschi deliberately misstated Sgt Powderly’s evidence (a submission which the plaintiff contends he knew was false at the time he made it) when he advanced the following submission:

181. [1324]

     In advancing that submission Mr Tedeschi attributed to Sgt Powderly the fact that when he initially put the Mitrolux in the area where Caroline’s body was later found, the light “just went past there” when the accused said to him “that’s her. That’s the clothing that she was wearing”. Mr Tedeschi went on to submit:

182. [1325]

     Sergeant Powderly’s evidence, adduced from Mr Tedeschi consistently with what he said when participating in the video re-enactment, was that he was able to see legs illuminated in the Mitrolux light, and further that when he had directed the light “on the legs” he heard someone behind him say “that’s her. That’s the clothing she was wearing”.

183. [1326]

     His evidence was to a similar effect. He said:

184. [1327]

     Mr Tedeschi was invited in cross-examination to confirm that was his understanding of Sgt Powderly’s evidence and his narrative accompanying the video re-enactment. When he was invited by Mr McClintock to concede there was an inconsistency between Sgt Powderly’s evidence and his submission to the jury about Sgt Powderly’s evidence, he thought the inconsistency was “very minor”.

185. [1328]

     It is the plaintiff’s submission that this is not a minor inconsistency. In the plaintiff’s submission there was no evidence to support Mr Tedeschi’s submission to the jury that the plaintiff claimed “he had identified Ms Byrne by her clothing when the police hadn’t seen a thing”. The plaintiff submitted that the submission was a significant and deliberate misstatement made to enable Mr Tedeschi to make the “killer point” submission which the plaintiff submitted was not a submission that would otherwise have been open to him. The plaintiff submitted:

186. [1329]

     Mr Tedeschi gave evidence that when he attributed to Sgt Powderly that “he hadn’t seen a thing”, he was limiting the submission to Sgt Powderly having not seen any clothing. I invited Mr Tedeschi to read again the transcript of his closing submission and asked him the following questions:

187. [1330]

     Mr McClintock resumed his cross-examination and put the following:

188. [1331]

     In the defendant’s submission, I would not discount Mr Tedeschi’s explanation for his submission to the jury as unreasonable, and even less so find that he told a deliberate lie to conceal what he knew at the time he advanced the submission that he was deliberately misstating the evidence. I accept that submission. In the result, taking into account the competing submissions of the parties, I am not persuaded that the “killer point”, so-called, was not a submission sufficiently grounded in the evidence to allow Mr Tedeschi to advance it for the consideration of the jury or that, in doing so, he deliberately misstated any aspect of the evidence.

Conclusions on the issue of malice

1. [1332]

   In the result, I am satisfied that Mr Tedeschi failed to make an informed assessment of A/Prof Cross’s credibility and reliability and that he failed to adduce his evidence as an expert witness consistently with his obligations as a Crown Prosecutor. I am also satisfied that he changed the Crown case to accommodate the revealed flaws in the Crown case theory which was based on A/Prof Cross’s evidence. In circumstances where I am not persuaded that he knew of the flaws in the Crown case theory that the plaintiff spear threw Ms Byrne to her death, and that he was determined to prosecute him for murder notwithstanding by deliberately manipulating the evidence to conceal those flaws, as I said earlier, I would need to consider other explanations for his failure to comply with his prosecutorial obligations.

2. [1333]

   Those competing explanations or hypotheses for Mr Tedeschi’s proven misconduct include that it was or might have been incompetence or a gross state of carelessness that led him to conduct the prosecution as he did. However, given Mr Tedeschi’s seniority and experience as the Senior Crown Prosecutor of New South Wales at the time of the trial, neither carelessness nor inadvertence, and even less incompetence, presents as a credible explanation. It does not follow, however, that the only possible remaining explanation for taking that approach and for advancing the submissions on motive without a sufficient basis in the evidence for doing so, inclusive of the approach he took to advancing the Crown case that the plaintiff was with Ms Byrne at Watsons Bay on 7 June 1995 by reference to Mr Doherty’s evidence, and the allied submission as to what they must have been fighting about at the gym, is that he was straining for a conviction by improper means.

3. [1334]

   Another explanation may be that Mr Tedeschi honestly believed (albeit wrongly) that he was entitled to advance the submissions the plaintiff has identified and I have found as being without evidential foundation, the submission on motive being the most egregious. It may be that he honestly believed that his rendition of the evidence in support of those submissions was open to him in seeking to persuade the jury of the plaintiff's guilt, consistently with the Bar Rules and the Director’s Guidelines.

4. [1335]

   I would also need to consider whether another possible explanation for the multiple examples of what I am satisfied were instances of prosecutorial misconduct, might be what resonated in the text and tenor of Mr Tedeschi’s evidence in these proceedings. In summary, Mr Tedeschi’s evidence was that from the time he advised Mr Cowdery that the plaintiff should be prosecuted for Ms Byrne’s murder in February 2006, through to verdict on that charge in August 2008, he held an unerring belief in the probative value of the body of circumstantial evidence available to him as a prosecutor to prove the plaintiff’s guilt beyond reasonable doubt; a belief that he continued to hold at the time he gave evidence in these proceedings in May 2017. He also gave evidence that save only for accepting (albeit, in my view, begrudgingly) that he was wrong to pose “the 50 Questions” for the jury, he believed then and continues to believe now that he was justified, indeed obliged, to advocate for a guilty verdict in the way he conducted the trial on behalf of the Crown, including in the style and content of his closing submissions and his unqualified reliance on the evidence of A/Prof Cross to prove that Ms Byrne’s death was the result of murder at the plaintiff’s hand.

5. [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.

6. [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.

7. [1338]

   I am left in no doubt that it was Mr Tedeschi’s unerring belief in the rectitude of his own intellectual processes and prowess which dominated his decision to initiate and maintain the criminal prosecution of the plaintiff. I am also left in no doubt that those same attitudes underpin his refusal to accept, even now, that he was not entitled to prosecute the plaintiff in the way he did, including his refusal to even concede the risk that he may have been wrong to take the approach he took, preferring instead to take refuge in the trial judge’s somewhat permissive approach to the Crown case on motive (by way of example) or Mr Terracini’s failure to object to his prosecutorial excesses (by way of further example, in the way Mr Tedeschi addressed Mr Doherty’s evidence).

8. [1339]

   In my assessment, the fact that Mr Tedeschi continues to hold to those beliefs is not evidence of malice but powerful evidence of either a profound lack of insight into the errors in his approach to discharging his prosecutorial obligations at the plaintiff’s trial or a stubborn refusal to acknowledge his professional failings in doing so or both, coupled with a compulsion (even under oath) to continue to refuse to acknowledge them in order to defend himself against criticism of any kind.

9. [1340]

   Ironically, it is the fact that Mr Tedeschi continues to have no insight into his impropriety as a prosecutor in material respects, or to accept that the trial miscarried because of his misconduct, that reinforces the conclusion that I have reached that malice is not proved. Throughout his evidence, Mr Tedeschi remained committed to his assessment of the strength of the evidence against the plaintiff for murder, and persistently showed himself unwilling or unable to accept any of the criticisms of his conduct as a prosecutor at the plaintiff’s trial or to accept that his approach to the assessment of A/Prof Cross’s reliability as an expert witness, both in preparation for trial and the way his evidence was adduced at trial, was flawed.

10. [1341]

    In concluding that the plaintiff has failed to prove that he was prosecuted maliciously, I have taken into account that Mr Tedeschi denied any deliberate attempt to skew the evidence or to overstate its effect as put to him repeatedly by Mr McClintock in cross-examination. Put another way, in circumstances where Mr Tedeschi has maintained the belief that his approach as a prosecutor was consonant with his ethical obligations, I would need to be satisfied that the probabilities are that he was being deliberately dishonest in asserting that belief, or that the evidence he gave in defence of his conduct so wholly untenable that I must reject it and infer that malice has been proved by inference from his proven conduct as a result, and to reach that finding to a high level of satisfaction. Even when presented with what I consider to be glaring examples of his misstatement of some aspects of the evidence in his closing submissions, Mr Tedeschi’s explanation was to attribute this to a misunderstanding of the evidence (the carpark issue), or to inadvertence in making submissions about it (the calls placed by Ms Byrne on 6 June 1995), or to a restated belief in his right to put the submission (his justification for attributing to Mr Doherty the fact that the woman he saw on the street was “sobbing”, being one example, and the “green Bentley issue” another, and the Crown case on motive yet another). In order to be satisfied that Mr Tedeschi’s evidence in these proceedings exposes that his dominant purpose in prosecuting the plaintiff was malicious in the legal sense, I would need to be satisfied to a high level of confidence that he either gave deliberately dishonest evidence under cross-examination in order to conceal the fact that he knew at the time of the trial that the way he was conducting the proceedings as Crown Prosecutor was contrary to the standards of propriety by which he was bound (because he was self-consciously striving for a conviction at all costs), or that his evidence in these proceedings was so wholly untenable as to be unworthy of any credit, that his explanation should be disregarded, or given no weight for that reason.

11. [1342]

    Although I have found some of Mr Tedeschi’s explanations for his conduct as a prosecutor highly questionable, and some of the explanations he gave for his decisions about the evidence which was to be called, and then the way it was adduced and ultimately used in the submissions he made to the jury, also questionable and in some respects disingenuous, I am unable to find, to the standard required for proof of the element of malice, that he gave deliberately dishonest evidence in these proceedings when seeking to maintain his right to prosecute the plaintiff as he did. In short, while I regard his evidence in these proceedings in continuing to justify what he did as the Crown Prosecutor at the plaintiff’s trial as unacceptable in many respects, I have concluded that his evidence and his presentation as a witness in these proceedings does not demonstrate that he was dishonestly concealing that he had deliberately made the decision to prosecute the plaintiff at all costs and to impermissibly strain for a conviction for a purpose unrelated to the purposes of the criminal law but that he is unable or unwilling to reflect upon the revealed errors in his approach, or to accept and acknowledge that he has been revealed to have breached his obligations as a prosecutor.

12. [1343]

    Whatever else Mr Tedeschi’s attitude to the prosecution of the plaintiff may reveal about his competence as a barrister or his capacity generally to abide by the Bar Rules, I am not persuaded that his persisting lack of insight into the flawed approach he took to the prosecution of the plaintiff, or his lack of insight into the fact that those flaws were ultimately productive of gross unfairness in the plaintiff’s trial, is sufficient to prove that at the time he initiated and maintained the prosecution he did so for a sole or dominant purpose ulterior to the processes and purposes of the criminal law.

13. [1344]

    Despite what I am well satisfied are demonstrable failures of Mr Tedeschi’s forensic judgment and his persisting lack of insight into their impact on the course of the trial, and despite holding grave suspicions that some of Mr Tedeschi’s closing submissions to the jury might have been a deliberate attempt by him to unfairly influence the jury, or even to deliberately prejudice the plaintiff by the patently and grossly improper technique of utilising smear, innuendo or speculation, I am not persuaded that such suspicions as I do hold provide a sufficient basis upon which to find the element of malice proved to the applicable standard.

14. [1345]

    That being the case, it follows that the plaintiff has failed to establish that Mr Tedeschi prosecuted him maliciously for Ms Byrne's murder, although I am satisfied Mr Tedeschi prosecuted him without reasonable and probable cause.

Orders

1. [1346]

   I make the following orders:

   1. (1)

      Judgment for the defendant.

   2. (2)

      The plaintiff is to pay the defendant’s costs.