NSW bar forces senior crown prosecutor to backtrack on directive about the conduct of trials and sentencing hearings … Documents leaked … A prosecutor’s duty … Telegraph misreporting … Law n’ Order beat-up … Resignation
He’s been scouting around for new chambers but for now is still listed at the crown’s digs in Sydney’s Liverpool Street. His position has been advertised, along with some other vacancies at the office of the DPP.
Tedeschi’s departure after 20 years as SCP followed criticism by the bar council of his December 7 directive on how prosecutors should conduct trials.
His boss, DPP Lloyd Babb, followed-up with a statement on December 15 that supported the bar’s position and contradicted Tedeschi’s original claim that prosecutors were making too many “inappropriate concessions” to defence counsel during trials and at sentencing.
Babb said that, “It is only on a rare occasion that inappropriate concessions are made”.
As soon as the bar got wind of the Dec. 7 directive, president Arthur Moses wrote to Babb saying that Tedeschi’s email “displays a fundamental misunderstanding of the independent role of crown prosecutors”.
Tedeschi had asserted that the role of a prosecutor is to “act as a contradictor to the version put forward by an accused or an offender or by counsel …”
“Inappropriate concessions” should not be made to defence submissions and that offenders should be required for cross examination at sentencing hearings.
“Even if there is no material to contradict the offender’s evidence, it should be fully tested in cross examination as a matter of course,” he said.
Making concessions to the defence should not happen except in “extreme cases” where approval had been granted by the senior crown prosecutor, a deputy senior crown prosecutor or the director’s chambers.
Further, prosecutors had failed to press evidence which has been objected to by the defence on the basis of the judge’s discretion. Prosecutors should not make concessions about non-custodial sentences and offenders should be called to verify the facts contained in medical reports.
“In a criminal trial the crown prosecutor represents the community. Their role is to assist the court and the jury to arrive at the truth and to do justice between the community and the accused. They are required to lay before a jury all the credible evidence considered relevant to what is alleged to be a crime. Their role excludes any notion of winning or losing.”
Tedeschi’s directive suggested that prosecutors should run cases, not as independent advocates, but in accordance with instructions from their superiors. Tedeschi added that he had been asked by the DPP to “stress the importance” of these points.
Senior bar council nabobs were incandescent. In a strongly worded response Moses told Babb that that over and above the role of contradictor the uniform barristers rules requires counsel to exercise independent forensic judgment, even where it is contrary to the wishes of the client or the instructing solicitor.
The suggestion that prosecutors are mere “agents” of head office is “antithetical to this duty of independence”.
The bar president added that such an approach would undermine the early guilty pleas reform announced by the attorney general – a reform which the bar opposes.
Babb was summonsed to a meeting at Bar HQ in Phillip Street. Since the bar issues trading tickets it was pointed out in another missives on this topic that if prosecutors “wish to remain members of the bar” they are obliged to comply with a duty of independence and exercise their own judgment.
Straight after the meeting Tedeschi followed-up with a second email to prosecutors, dated December 8, effectively correcting the record and withdrawing the essence of his earlier directive. It emphasised that counsel have the discretion to make appropriate concessions and to exercise independent judgment during a trial or sentencing hearing.
Both emails were leaked to the Daily Telegraph whose law n’ order hacks leapt on the story with a huge front page beat-up about prosecutors getting tough on criminals, and this seemed to include those who hadn’t yet been convicted.
Commonwealth Crime Buster Peter Dutton was enthusiastically cited:
“Speaking to Ray Hadley this morning (December 14), the Immigration and Border Protection Minister said he backed calls from the state’s leading prosecutor Mark Tedeschi to stop doing soft-on-crime deals with crooks.”
Except that Babb was not a supporter. On December 15 the DPP issued a statement saying that he agreed with Moses that “without appropriate concessions, the length of sentence proceedings in criminal courts would be extended leading to further delays”.
The paper had misreported what had happened, giving full throttle to Tedeschi’s first email while not mentioning the fact that it had been withdrawn.
As Babb put it in his media release of December 15:
“The second email followed a letter from the bar association and a meeting between myself, the president of the bar, the senior crown prosecutor and other senior counsel. The bar association expressed serious concerns about the first email. We all agreed that the concerns raised by the bar association should be addressed and agreed that a second email would be sent withdrawing the first and emphasising the discretion of counsel to make appropriate concessions and exercise forensic judgment in the course of a criminal trial or sentence. The first email did not intend to suggest otherwise. That second email was sent and made it clear that the first email was withdrawn.”
Thank god that’s settled.
Tedeschi later announced he was quitting and there’s been no public release from Babb expressing regret at the loss of his most senior crown.
It would not surprise if Tedeschi felt that he had been left high and dry. At least a tiny corner of the world could enjoy the thrust and parry of the media releases, which unusually were made public by otherwise secretive organisations, except for the December 8 email, which remains out of sight – but we live in hope of more leaks.
Tedeschi has survived earlier criticism. In 1991 the Court of Criminal Appeal overturned the guilty verdict against Tim Anderson in the Ananda Marga case. Chief Justice Gleeson said:
“… There was one important respect in which, in my view, the proceedings miscarried … The crown was permitted, in an unfair manner, to obscure a major difficulty concerning the reliability of the evidence of its principal witness … by raising an hypothesis that was not reasonably open on the evidence …
A direction given by the learned trial judge to the jury relating to the ‘sanity’ of Pederick … constitutes an additional reason for treating the verdicts as unsafe and the process at the trial as unsatisfactory …
The trial of the appellant miscarried principally because of an error which resulted in large part from the failure of the prosecuting authorities adequately to check aspects of the Jayewardene theory. This was compounded by what I regard as an inappropriate and unfair attempt by the crown to persuade the jury to draw inferences of fact, and accept argumentative suggestions, that were not properly open on the evidence.
I do not consider that in those circumstances the crown should be given a further opportunity to patch up its case against the appellant. It has already made one attempt too many to do that, and I believe that, if that attempt had never been made, there is a strong likelihood that the appellant would have been acquitted.”
Following that the NSW Bar Association unsuccessfully took disciplinary proceedings against Tedeschi in the Administrative Decisions Tribunal.
In the 1980s, Paul Kenny, a former police officer and later a solicitor, was charged with perverting the course of justice. He was found not guilty. John Nader reviewed the case and found that Tedeschi had overstated the allegations against the accused but had not breached any ethical standard. He rejected allegations that one witness had been induced by Tedeschi and another prosecutor to give false evidence.
In the Gordon Wood murder case Justice Peter McClellan on appeal found the trial had miscarried because of Tedeschi’s closing address.
“Asking questions [of the jury], even in a rhetorical manner, and inviting the jury when considering its verdict to consider whether the applicant had provided satisfactory answers to the questions was an impermissible course for the prosecutor to follow.”
Further, McClellan added:
“The exploitation of public rumours and the use of mere innuendo to compensate for inadequate evidence of motive is not consistent with the obligations of a prosecutor to press the crown case.”
Justice Elizabeth Fullerton is reserved on the malicious prosecution case brought by Wood against Tedeschi.
Here are the key documents: