Kathleen Folbigg … Keli Lane … Tim Anderson … Gordon Wood … Convictions and quashes … Prisoners walk free … Speculations and winning ways … The line that is crossed … Where is the line? … Prosecutorial controversies 

Both the Kathleen Folbigg and Keli Lane murder cases have been been the subject of recent investigation by the ABC. Folbigg and the deaths of her four infant children were examined by Australian Story while Lane, and the disappearance of her baby Tegan, was the subject of a three-episode special from Caro Meldrum-Hanna. 

The Folbigg case has also been the subject of work by The Sydney Morning Herald on the medical causes of multiple infant deaths.  

The NSW attorney general Mark Speakman SC has directed that Reg Blanch QC, former chief judge of the District Court, enquire into Folbigg’s conviction, while the ABC investigation into Keli Lane’s case also raised issues as to whether there had been a miscarriage of justice. 

Mark Tedeschi QC was the crown prosecutor at these trials, both of which resulted in murder convictions. He was NSW’s senior crown prosecutor for over 20 years as well as being a photographer and an accomplished writer of crime histories. 

At the Folbigg trial Tedeschi was dismissive of the possibility that the children died of natural causes. According to one report of the trial, he said if they had died of natural causes, then piglets might sprout wings and fly as well. 

The Blanch inquiry will concentrate on the latest forensic pathology available. Gail Furness, counsel assisting, said that four new reports from medical experts suggest the deaths could be due to unidentified natural causes. 

The work of Professor Stephen Cordner from Monash University is expected to be one of the main elements in Blanch’s investigation. 

Tedeschi claimed at the trial that the children has been smothered and there had never been a case reported of four infants from the one family dying of natural causes, in the history of medicine. 

The Keli Lane case also is replete with fascinations. The third episode of the ABC series called Exposed gave rise to concerns whether justice had been done. Certainly, the trial judge Tony Whealy thought the verdict may have been unsafe.  

Keli Lane claimed that as she was leaving Auburn Hospital she gave her newborn baby Tegan to a man called Andrew Norris, or it may have been Morris. The child has not been located since, not has Andrew Norris or Morris. 

Keli had given birth “secretly” to two other children, which she had put up for adoption. 

She had lied about the birth and adoption of her first two children and the crown rolled up charges of perjury with the murder charge. 

Whealy invited the defence to make an application to sever the perjury charges, but this was not taken up. 

Sharon Rhodes, formerly a detective working on unsolved homicides and the Lane case, said that after extensive investigations the police didn’t have enough evidence and legal advice was sought from the DPP, Nicholas Cowdery QC. He advised there was sufficient material on which to commence a murder prosecution of Keli Lane. 

Tedeschi told the ABC’s Exposed that by the time the trial commenced “99.9 percent” of the evidence had been assembled. The prosecution was ready to go, “absolutely”. 

When Rhodes heard that she was incredulous. “Did he say that? … You’d have to pick me up off the floor. We weren’t ready.” 

Whealy agreed that the police evidence had not been completed and the case was prepared “on the run … there’s no doubt about that”. 

On Monday (Nov. 5) the ABC’s 7.30 program reported that the public servants who worked at the NSW Registry of Births Deaths and Marriages had not completed searches for Tegan by the time the trial commenced. At the time there were up to 8,000 children a year in NSW whose births were not registered.

There are some recent email exchanges between the ABC and Tedeschi about the searches and the prosecutor rebutting suggestions that the trial may be “going off the rails”.  

One of the submissions made by Tedeschi early in the trial was that Keli had dumped her baby Tegan at the Homebush Olympic site. Whealy said there was no evidence at all for that submission and he asked for it to be withdrawn. 

In the interview with the ABC, Tedeschi declined to talk about the Homebush dumping theory and the defence did not apply to discharge the jury. 

A key piece of evidence concerned the time Keli left Auburn hospital after giving birth. Nurse Anne Hanlon initially recorded that the patient and baby were discharged at 2pm (1400 hours). 

Because Keli went straight to a wedding after being discharged that would not have given her time to murder and dispose of the remains of Tegan. 

At the trial and without explanation Hanlon said that she was discharged between 11am and 12 noon. This was described as a “remarkable memory return”. Hanlon refused to be interviewed by the ABC. 

Dr Chen, the medical officer in charge at the hospital, told Exposed that Lane was discharged within an hour after 2pm. 

Tedeschi claimed in the interview that 1400 hours was when they “completed the hospital notes”. 

Tedeschi also told the jury that the accused hoped to represent Australia in water polo at the 2000 Olympic Games. She was “incredibly ambitions to represent Australia”. 

This was put forward as a motive for getting rid of Tegan, who would have impeded her Olympic preparations. 

However, water polo coach Les Kay told the program that this was nonsense – she never expressed a desire to go to the Olympics – and Phillip Bowen, the NSW women’s water polo coach, said she was not in line to make the team and that the Olympic Games was not on her radar. 

Another interesting twist at the trial was the “witness trade”. The crown and the defence each agreed to cancel out key witnesses – for Lane a woman called Natalie McCauley in whom Keli confided that she had been having an affair at the relevant time with a man called Andrew, and for the crown a man called Andrew Morris who said he a single sexual encounter with Lane near the beach at Manly. 

The crown thought this was important because here was a man called Morris who allegedly had sex with the accused and he didn’t keep the baby. 

Lane said she had never met this person and had no idea who he was. Morris admitted the photo of Lane showed to him by the police “just looked familiar”. Now he was was now not certain whether he had sex with Keli Lane. He said that he got locked into a situation and “couldn’t turn back”. 

Former detective Sharon Rhodes said that Morris had been coached and led by detectives. 

In any event, these two witnesses were traded out, to the dismay of Rhodes who said the jury should have heard all this evidence. 

At the end of the three part documentary, Keli Lane admitted that she could have made a mistake about the name of the man to who she gave baby Tegan. He may not have told her his true name. 

“I’m not a 100 percent sure … It could be the wrong name.” 

Rhodes told the program that she didn’t think Keli Lane got a fair trial. Another police officer involved in the case, Rebbecca Becroft, thought that there must be something “seriously wrong with Keli”. 

Justice Whealy, as he then was, said he had doubts about the crown case. He said that there was a doubt that the crown had proved beyond reasonable doubt that Tegan was not still alive. 

Rhodes said the case was sill unsolved. “It haunts me. it broke me.” Whealy said that it was such a harrowing experience that he no longer wished to preside over criminal trials. 

Tedeschi reminded everyone that the role of a prosecutor is “not to get a conviction, but to see justice done”. However, Justice Peter Hamill, a former criminal defence barrister, said Tedeschi is a “formidable opponent – he plays to win”. 

Some of Tedeschi’s important assertions have been contradicted by those closely involved with the case or by other independent witnesses. 

RMIT’s Innocence Initiative is continuing to investigate in the hope that, like Folbigg, there may be an inquiry into the worrisome aspects of Keli Lane’s conviction.  

Those close to the prosecution team contest many of the statements about the evidence made in the program but, while there are calls currently afoot for an enquiry, don’t want to be specific at this stage. 

On other well ventilated occasions judges have identified prosecutorial lines that have been crossed by Mark Tedeschi. 

In 1991 Smiler Gleeson CJ, sitting in the NSW Court of Criminal Appeal, delivered a blistering judgment in the Tim Anderson appeal, quashing the convictions for murder and entering a verdict of acquittal. 

The conviction arose out of the Hilton Hotel bombing in 1978 in which two garbage workers for the city council and a policeman were killed when a bomb went off in a garbage bin in George Street outside the Hilton Hotel. 

The aim of the alleged attack by the Ananda Marga sect was the assassination of the Indian Prime Minister Moraji Desai who was visiting Sydney to attend the Commonwealth Heads of Government Meeting. 

The first count in the indictment presented against Anderson alleged that as an accessory before the fact he attempted to murder Junius Jayawardene, the President of Sri Lanka, on February 12, 1978. The second, third and fourth counts in the indictment charged Anderson with the murder of two council garbage collectors and a policeman. 

Crown prosecutor Mark Tedeschi relied at Anderson’s trial on the evidence of Evan Pederick, who had earlier been convicted of the same murders. 

The case was a mess largely because most of what Pederick said was unreliable and inconsistent. Pederick wasn’t sure of the identity of his target, whether he was trying to assassinate the Prime Minister of India or the President of Sri Lanka, and the crown case shifted around accordingly. 

Desai arrived at the Pitt Street entrance of the hotel, while Pederick and the bomb were stationed near the George Street entrance. It was submitted he thought President Jayawardene was really Mr Desai, except that the Sri Lankan president arrived at the hotel at 8am on February 12, 1978 many hours before Pederick said he had attempted to explode the bomb. 

The crown then latched onto a new theory, that Pederick attempted to kill Desai when he was leaving the hotel at around 5pm on February 12 to go to a function at Kirribilli House. 

Tedeschi told the jury that a figure in a photograph on the other side of George Street at the time of Desai’s departure was Pederick. In fact, by that stage Pederick said he had left the scene and was somewhere near Newcastle. 

In any event, the crown did not recall Pederick to give evidence about this new version of the story. 

Gleeson CJ said: 

“The crown was permitted, in an unfair manner, to obscure a major difficulty concerning the reliability of the evidence of its principle witness. In particular, the crown was permitted to represent that the difficulty was one resulting from a mistake on the part of the prosecuting authorities rather than one inherent in the witness story, and it was also permitted to attempt to resolve that difficulty by resort to submissions that should not have been put, and by raising an hypothesis that was not reasonably open on the evidence.” 

In conclusion the CJ said:

“The trial of the appellant miscarried principally because of an error which resulted in large part from the failure of the prosecuting authorities to check aspects of the Jayawardene 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 and that were in some respects contrary to 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 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.” 

Conviction overturned. Verdict quashed. Anderson walks free. 

In 2003 the NSW Administrative Decisions Tribunal dismissed a professional misconduct case brought by the NSW Bar Association against Tedeschi, based on the way he conducted the Tim Anderson trial.  

The tribunal found that professional misconduct had not been proved. 

“The tribunal is also of the view that after taking into account the findings and conclusions … the barrister’s peers of good repute and competency would not reasonably regard as disgraceful or dishonourable the barrister’s failure to recall Mr Pederick to give evidence with respect to the Desai departure theory.” 

The Court of Criminal Appeal in the Gordon Wood case dealt with a number of shortcomings in the prosecution case run by Tedeschi – assumptions and assertions put to the jury for which the appeal court found there was no evidence.  

One of the issues was Wood’s motive in supposedly killing his girlfriend Caroline Byrne by throwing her off the Gap at Watson’s Bay. 

The prosecutor told the jury that Wood may have killed Byrne because she wanted to end of their relationship and this was intolerable to him because he was in love with his victim. 

It was also suggested by the crown that Wood believed Byrne knew details of the Offset Alpine printing fire and associated scandal, which she might disclose publicly. If this happened Wood’s employer, Rene Rivkin, would be upset and Wood would loose his job as chauffeur and gofer to the stockbroker. 

The CCA said this meant that Wood would choose to kill the girl he loved rather than lose his job. Peter McClellan CJ at CL described this situation as “entirely speculative and internal inconsistent”. 

“To my mind there nothing in the evidence which justified the prosecution’s speculation with respect to the applicant’s motive.” 

Tedeschi also speculated about an argument between Wood and Byrne and claimed “it must have had something to do with the accused’s employment with Rene Rivkin”. 

Justice McClellan said: 

“It is plain that the prosecutor introduced the prospect that the event was related to Rivkin in order to support his theory as to the applicant’s motive. It was a speculative smear.” 

There were also unsupported theories advanced for the manner in which Caroline Byrne was allegedly killed. It was submitted by the crown that she was thrown off the Gap in the sort of throw used by shot putters. 

“This submission was entirely unsupported by any evidence … The suggestion of a shot put action was an invention of the prosecutor during the course of submissions for which there was absolutely no supporting evidence.” 

It was also contended that Tedeschi impermissibly asked the jury to determine factual issues on the basis of how they would feel. Tedeschi asked the jury: 

“Think of the fear that a person would have before they threw themselves off the Gap. Do you really think that Ms Byrne in that condition would have been able to propel herself at such fast speed to get headfirst into Hole A [at the foot of the Gap]?” 

Inviting juries to determine factual issues on the basis of how they feel has long been regarded by appeal courts as a no-go zone. 

Then there was the submission about Ms Bryne’s depression, which the crown attributed to her wanting to break off the relationship and get away from Wood. 

Tedeschi told the jury: 

“She was fearful for her life; she was in a terrible situation. That’s what she was depressed about.” 

McClellan said: 

“This statement was also capable of seriously misleading the jury … There was no evidence that a relationship problem was linked to her depression in the week of her death.” 

He also suggested that people leave notes before they kill themselves – and this too was contrary to expert evidence. 

“The prosecutor’s remark should not have been made. It was a serious breach of the prosecutor’s duty to put the crown case fairly before the jury.” 

These breaches of fairness and detachment were sufficient to quash the conviction. Wood walked free. 

In August 2018 Justice Elizabeth Fullerton, after more than a year of deliberation, delivered her judgment in Gordon Wood’s malicious prosecution case against the State of New South Wales. 

The judge closely examined the conduct of members of the prosecution team which, of course, included senior crown prosecutor Mark Tedeschi. 

The judge found in favour of the State, although not before she was critical of Tedeschi’s conduct at the trial. 

For instance, there was Tedeschi’s suggestion that Wood had taken Ms Byrne’s phone to the Gap the night before her death to make a phone call to himself, so as reinforce the possible explanation that Byrne committed suicide. 

Fullerton said there was no evidence before her at all that Wood had gone to the Gap to make a phone call. 

Wood submitted that the crown “was maintaining the prosecution for a sole or dominant purpose other than the proper invocation of the criminal law, that is, maliciously”. 

The State complained that was not put to Tedeschi in breach of the rule in Browne v Dunn. However, Fullerton said that while it 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.” 

Tedeschi candidly accepted the submission should not have been made, which the judge said helped explain, “Mr Tedeschi’s unintended overreach in the course of developing closing arguments in a complex and factually detailed crown case”. 

In wrapping-up her reasons Fullerton said:

“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 …

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. 

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.” 

The conclusion was that Tedeschi did not initiate or maintain the prosecution for a sole or dominant purpose ulterior to the purposes and processes of the criminal law. 

“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.”  

At the time of the Wood trial the bar rules in relation to prosecutors’ duties contained both certain and vague duties: 

A former NSW senior crown prosecutor, R.R. Kidman, wrote in 1958 of the functions of a prosecutor: 

Mark Tedeschi resigned as senior crown prosecutor on February 23, 2018 and left the office of the DPP. 

He’s currently a barrister at Wardell Chambers in Elizabeth Street. 

He resigned following his directive of December 7, 2017 on how crowns should conduct trials, which gave the impression that prosecutors should strive to “win”: 

The NSW bar objected to these directions, with president Arthur Moses saying that Tedeschi’s email “displays a fundamental misunderstanding of the independent role of crown prosecutors”. 

He added that if prosecutors wished to remain members of the bar association they are obliged to exercise independent judgment and not be directed from head office. 

After hurried meetings with members of the bar council, the DPP, Lloyd Babb, conceded that the bar was correct and Tedeschi’s instructions were withdrawn. He accepted that “without appropriate concessions, the length of sentence proceedings in criminal courts would be extended leading to further delays”. 

Justinian sought comment from Mark Teseschi in relation to the recent developments in the Folbigg and Lane cases. He said that because there was an inquiry underway into Folbigg and calls for an enquiry into Lane’s conviction, it would not be appropriate to comment. 

NSW Department of Justice: Inquiry into the convictions of Kathleen Folbigg  

Putting a face to Andrew Norris/Morris 

NSW Court of Criminal Appeal: Timothy Edward Anderson 

Administrative Decisions Tribunal: NSW Bar Association v Tedeschi 

NSW Court of Criminal Appeal: Wood v R 

NSW Supreme Court malicious prosecution: Wood v State of New South Wales