Wood v The State of New South Wales [2020] HCATrans 114 (14 August 2020)

Last Updated: 18 August 2020

[2020] HCATrans 114

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
Sydney No S6 of 2020

B e t w e e n -

GORDON WOOD

Applicant

and

THE STATE OF NEW SOUTH WALES

Respondent

Application for special leave to appeal

NETTLE J
GORDON J

TRANSCRIPT OF PROCEEDINGS

AT MELBOURNE ON FRIDAY, 14 AUGUST 2020, AT 12.33 PM

Copyright in the High Court of Australia
MR G.O’L. REYNOLDS, SC: May it please the Court, I appear for the applicant, with my learned friend, MR R.W. HADDRICK. (instructed by Kalantzis Lawyers)

MR P.W. NEIL, SC: May it please your Honours, I appear with my learned friends, MR A.N. WILLIAMS and MR B. NARULA, for the respondent. (instructed by the Crown Solicitor’s Office (NSW))

NETTLE J: Yes, Mr Reynolds.

MR REYNOLDS: If the Court pleases. In this case the only issue on which Mr Wood failed was the question of malice. The judge found in his favour on the first objective, absence of reasonable and probable cause, and, secondly, that there were multiple serious acts of misconduct. However, the judge did not embrace his case on a third and fourth element, namely Mr Tedeschi’s knowledge of those evidential defects and Mr Tedeschi’s knowledge of his own misconduct. We submit that there were serious errors in the courts below on those latter two issues.

I would like to present, if I may, my submissions under three headings. The first is under this issue of knowledge by Tedeschi of his own acts of misconduct. Your Honours will have seen from our submissions, relevantly at page 570 at the bottom to 571, a summary of some of the findings of misconduct.

Your Honours, can I just draw your Honours’ attention to three matters there as examples - this is at line 8 on page 571 - as changing the Crown case to accommodate flaws revealed in that case; secondly, at line 2, some glaring misstatements in closing; and thirdly, this is at line 30 on page 571, failing to adduce the expert’s evidence consistently with his obligations as a Crown Prosecutor when it was clear, and this is at page 400 at line 18, that he knew what his obligations as a Crown Prosecutor were.

Now, we submit that my client’s case on this issue of knowledge by Tedeschi of his own misconduct was very strong, at least in relation to some acts of misconduct. As your Honours will have noted, some of the findings, such as those I just mentioned, implicitly incorporate findings of knowledge. He also, that is Mr Tedeschi, must have known - was held to know of his own legal obligations and there were multiple serious acts of misconduct and obviously he knew of his own actions and all of the evidence.

The problem is that the judge did not address this issue. What the judge needed to do was to focus on all of those headings of misconduct, to take each particular and review the evidence of knowledge by Tedeschi on each of those points. When the matter reached the Court of Appeal, my client submitted – and I am quoting from page 503, line 15 – that on the totality of the evidence, it was clear that Tedeschi had knowledge of all of his own acts of misconduct. I refer also to page 509, line 10.

The problem again is that the Court of Appeal fails to deal with this issue and there is, in effect, a complete absence of findings on these important points. So just pausing there, we submit that on that basis alone there is a miscarriage in this case. He had a strong case on this question and, if it had been found in his favour, then we submit the inference of malice is clear. That is the first thing I wanted to deal with.

The second thing is the question of subjective absence of reasonable and probable cause, in particular Tedeschi’s knowledge of the two evidential holes at the centre of a Crown case. Those two holes are set out in our submissions, conveniently at paragraph 14 of our submissions in‑chief, which is at page 569, at line 10.

The gist there is that there was no evidence at all that a struggling woman could have been thrown the relevant distance and, secondly, no evidence sufficient for a jury to find that an unresponsive woman could have been thrown the relevant distance. That was sufficient to establish objective absence of reasonable and probable cause.

My client also argued at the trial that there were subjective absences of reasonable and probable cause which meant knowledge of these two evidential defects – either when the prosecution was initiated or when it was maintained. I submit that his case was very strong on that. Obviously, the prosecutor knew the evidence in microscopic detail. He had been involved from the beginning in recommending the charges, preparing the evidence and running the lengthy trial.

However – and this is at paragraph 1143 – the primary judge did not find subjective absence of reasonable and probable cause. The difficulty – this is at paragraph 1143, particularly at page 402 – the difficulty is that twice the judge misstates the test. At page 402, at line 18, she says she is unable to conclude:

that he knew both when he initiated and maintained the prosecution –

that the case:

was flawed at a fundamental level –

Again, at line 29, refers to the case being:

initiated and maintained –

Can I jump ahead a little to page 482 of the book at line 55, where this same error is made under the heading of “malice” where the judge talks about the time the case was initiated and maintained. So what the judge does, having – if I can go to the top of page 402 – the judge was prepared to accept – this is the second line – that Tedeschi:

very likely realised that those problems had been exposed when he maintained the case to verdict.

Because this issue is dealt with in an ominous way, the judge finds that she is unable to conclude that he had that knowledge – both at the point of initiation and maintenance. There are also obvious differences in this case between those two points. Just leaving to one side the fact that any barrister knows a lot more about the case when he closes in address – or she does – than they know when the case is initially commenced. in this case there was a particular reason why the deficiencies in the case were more obvious at the trial and that was that the defects in the case were clearly revealed when Professor Elliott gave evidence contradicting what Professor Cross said.

That is clear, if I can take your Honours first of all to application book page 401 at line 10 where it is noted that:

once the flaws in A/Prof Cross’s evidence and the Crown case theory were exposed (in particular after Prof Elliott gave evidence) –

Again at page 396 at about line 30 where she says:

at least by the time Prof Elliott gave evidence the Crown was without evidence sufficient to enable a jury to find –

et cetera. This is the very point that the judge makes in this critical paragraph 1143 and if your Honours go to the bottom of page 401, she says:

it is possible that Mr Tedeschi considered that there were real problems with many aspects of the evidence of A/Prof Cross . . . when he initiated the prosecution and that he very likely realised that those problems had been exposed when he maintained the case to verdict.

We submit that this critical paragraph involves an error of law where there is a rollup and a consideration of this issue of knowledge requiring knowledge at both of these points of time and we submit it is incontestable that this erroneous. That was not a point that was raised by counsel for Mr Wood before the Court of Appeal, but we submit that it shows that these findings are fatally flawed. Counsel did, however, advance the argument that either – this is in the Court of Appeal at initiation or maintenance - Mr Tedeschi knew and must have known that the two evidential defects in the case were strong.

However, the analysis by the Court of Appeal does not address the question of this issue of knowledge of these two evidential defects. Obviously what they needed to do, with respect, is to look at each of these two defects and look at the evidence of knowledge, both at the point of initiation and the point of the trial. All they say in effect – and this is at, for example, paragraphs 88 to 89 – is that there was no error shown in the judge’s reasoning on malice.

GORDON J: Mr Reynolds, could I ask a question, please?

MR REYNOLDS: Of course, your Honour.

GORDON J: In this Court’s authority in A it recognises and requires that there be a focus upon a dominant purpose of a prosecutor and that that purpose must be, in a sense, identified and proved and that purpose must be one that is other than the invocation of the criminal law. What is said to be, either below or now, to be that dominant purpose that is other than the proper invocation of the criminal law?

MR REYNOLDS: Well, in this case, your Honour, this is what is sometimes called a Trobridge Case, and that is where – and this is referred to in the submissions, for example, at the beginning of our reply, which is page 591, at about line 5:

that a Court may legitimately make a finding of malice although unable precisely to identify a particular malicious motive.

So we say it may be inferred that, picking up the usual definition of “malice”, that there was a purpose other than the proper invocation of the criminal law. We are not able to indicate what it was, but we can say that whatever it was it was not a legitimate purpose that Mr Tedeschi had. So this is, we submit, a standard way of doing it. Whatever his purpose was, it was not that legitimate purpose.

So we submit, just going back to this second point, that there is a fundamental error of law here, that he also had a strong case – that is, my client - on subjective absence and reasonable and probable cause. I mean, particularly given that this is an extremely experienced Crown Prosecutor who had been in this case from before the proceedings were even commenced, there just has not been any adequate consideration of the issue by the courts below.

The third point is the question of malice or the third heading – we say there are three problems here. The first is that this issue that I have just been talking about – that is requiring malice at both the point that it was initiated and maintained – is also repeated more generally on the issue of malice. It crops up – I have already taken your Honours to this – at paragraph 1343, at page 482 at about line 55, so again the focus is on whether malice existed at the time that the proceedings were instituted and maintained yet again.

Now, that, again, is an error more broadly on the question of malice. It also reinforces the conclusion at paragraph 1143 the judge made a similar error in relation to knowledge of absence and reasonable and probable cause. Now, that point was not, as I said before, taken below.

The point, however, that was taken below and we submit that this is very significant is that there were very serious errors, we submit, in the way that the judge handled the question of whether malice had been proved. Now, in a case of this kind if a plaintiff is asking for an inference of malice, the plaintiff first needs to prove the primary facts relied upon to establish malice, that is, the facts from which the inference is to be drawn, for example, here misconduct, knowledge of misconduct, et cetera. The court then needs to determine if an inference of malice is to be drawn from those primary facts.

Now, in doing that the judge needed, in this case, to consider various explanations and responses that Mr Tedeschi gave to the various allegations that were put against him. However, that is not the way the judge proceeds at all. What the judge does, if I can take your Honours to paragraphs 1341 to 1342, which is at pages 481 to 482 – I am not going to read these paragraphs out but I will focus on three things. The first is that she there talks about being satisfied to a high level of confidence - that is at page 481, line 59 and line 40.

NETTLE J: Just pausing there, what is wrong with that, given ‑ ‑ ‑

MR REYNOLDS: Your Honour, of itself, perhaps that is not necessarily fatal but the difficulty is what is added on to that - and this is my focus rather than on the notion of high level of confidence - and that is that the judge says I have either got to be - vis-à-vis these explanations or responses, I have either got to be satisfied of one of two things - and this is where the problem comes in - either that Tedeschi’s evidence is deliberately dishonest in order to conceal his misconduct - now, that is found, for example, at page 481 at line 59, again on the same page at line 34, at page 482 at lines 24 and 34 - so this notion of finding, in effect, perjury, deliberate dishonesty in his evidence on this point in order to conceal misconduct.

The other alternative, and the best reference to this is at 482, line 10 is a sort of Wednesbury test that Tedeschi’s evidence was so:

unworthy of any credit, that his explanation . . . given no weight -

The way the judge approaches it is to say, well, if those tests are not satisfied, therefore, I cannot find malice, instead of approaching it, as I respectfully suggest should have been done in the usual way, that is, look at the evidence in favour of the various particulars of primary fact, see if the – analyse the explanations and responses and determine whether malice is proved. This is almost a criminal standard or that my client had to prove perjury in order to establish malice.

As a result, the judge does not descend to findings on these various matters but just says, in effect, I could not – those tests could not be satisfied, therefore, that is the end of the matter. This problem with these paragraphs was raised, unlike the earlier point that I mentioned. There are obvious other explanations for Mr Tedeschi’s evidence without finding perjury. It could be a mistaken recollection, inaccurate reconstruction, unwitting self‑delusion, et cetera, and all the usual things that would reflect on credit. When this is raised with the Court of Appeal they never addressed this point.

NETTLE J: Before you go to the Court of Appeal, could we just go back to paragraph 1341 at page 481, to which you directed our attention before, about six lines in:

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 –

then the next sentence:

Even when presented ‑ ‑ ‑

MR REYNOLDS: I am sorry to interrupt, your Honour, I cannot see where your Honour is reading.

NETTLE J: I am so sorry, just below line 30 on page 481:

I would need to be satisfied –

and then the next sentence:

Even when presented with what I consider to be glaring examples of his misstatement . . . Mr Tedeschi’s explanation was to attribute this to a misunderstanding . . . or . . . making submissions about it . . . or to a restated belief in his right to put the submission –

Now, I take that to be that Mr Tedeschi’s evidence was, well, I thought I was doing the right thing. That was his subjective belief and that what the judge is saying is, well, in order that I can draw the inferences that the plaintiff asked me to draw I have to reject that Tedeschi’s evidence on oath as to his subjective belief and although the inferences are strong I am not prepared to do that given the gravity of the issues that are involved. Is that right?

MR REYNOLDS: No, we submit if your Honour goes to the bottom of the page, she is there saying I have to find that he has given deliberately dishonest evidence in order to conceal a fact that he knew that at the time of the trial he was conducting a proceedings contrary to the standard of propriety, et cetera.

NETTLE J: It is true, is it not? It is either true he honestly believed that he was doing the right thing, albeit misguidedly, or he is telling lies?

MR REYNOLDS: No, your Honour, with respect, it is not a question of whether his evidence in the witness box is deliberately dishonest, it is whether what he says – his evidence is to be accepted as to what his state of mind was at the trial. Now, when he gives evidence like that ‑ ‑ ‑

GORDON J: Mr Reynolds, can I take up that point with you? If you go to 1342 and then 1343 of application book 482, is that not what exactly the trial judge does? In the middle of 1342 she says:

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 –

et cetera, and then 1343 concludes she is:

not persuaded that his persisting lack of insight –

gave rise to the finding of malice that was sought to be maintained.

MR REYNOLDS: The problem, we submit, one cannot just say, is he dishonestly concealing in the witness box before me. That puts the test way too high, particularly if one adds a high degree of confidence. There are any number of reasons why his evidence may not be accepted, including mistaken recollection, inaccurate reconstruction, or unwitting self‑delusion.
One does not have to find that he has perjured himself in giving that evidence in order for my client’s case to be accepted, or to find, and this at the bottom of 1341, that it is:

so wholly untenable as to be unworthy of any credit -

It raises the bar so high that virtually no plaintiff is going to be able to jump it, and it is also wrong in law, I submit. The third and final point about ‑ ‑ ‑

NETTLE J: Is that the question of principle for special leave, then?

MR REYNOLDS: That is one of them, along with the other issue about initiation and maintenance. But also the issue of - and we have put this in our submissions at paragraph 26 of our submissions in‑chief, which is at page 574. The correct test of malice is set out at line 23, that is:

“a purpose other than the proper invocation of the criminal law”.

There is also - we have listed in the lines above that, the alternative formulae the judge has adopted. We have submitted that those are wrong, and given that there is a measure of opacity, we respectfully submit, in the test we refer to from A v New South Wales, we submit that this is a matter that the Court may need to elucidate. If the Court pleases, those are my submissions.

NETTLE J: Thank you very much. Mr Neil.

MR NEIL: Your Honours, the Court will be familiar with what we have put in our written outline in volume 2 commencing at page 580 going through to page 588, so I will not repeat that, but of course I am happy to answer questions. I would like to point out some matters that do not really seem to have received the emphasis they deserve in terms, firstly, of what the primary judge did in her task, and then what the Court of Appeal did. This brings us, in part, to a consideration of the nature of such an appeal.

But to set the scene, just to give your Honours these references, in the Court of Appeal judgment, this is in volume 2, paragraph 24 at page 501, the court, which was unanimous, as your Honours know, noted that the issues before the primary judge, as described by her in her judgment, were not challenged on appeal. At paragraph 25, the Court of Appeal noted that the primary judge had summarised the relevant legal test she applied, and there was no criticism of that on the appeal. At paragraph 50, and this is important, at page 519, the Court of Appeal expressly pointed out that the case at trial and on appeal:

did not differentiate between Mr Tedeschi’s initiation and maintenance of the case –

and if one goes to page 519 in volume 2, the Court, having made that point, goes on to say, at about line 53:

That is, the appellant’s approach was all or nothing –

and there was no distinction at any time between initiation and maintenance. Now, that was the case put to the primary judge, that was the case that the Court of Appeal had to deal with.

Another matter that is put against us in the written submissions of our learned friends is that the Court of Appeal failed to undertake a full review of all of the evidence. It was a dysfunction to do that. It did a pretty good job, with great respect. We have set out in our written outline what the principles are and what the natural limitations are – and your Honours know well of these. There is a statement in Fox v Percy. Justice Gageler recently made a statement on it.

There are significant limitations of a court of appeal where there are credit issues, particularly of this seriousness. But one of the prime facts that was under challenge before the Court of Appeal was the primary judge’s finding about the so‑called 50 questions that Mr Tedeschi read out to the jury after the trial judge had declined to give leave for them to be handed to the members of the jury in writing.

Her Honour reviews that in detail and says it cannot be gainsaid – this is my paraphrase, your Honours – that what Mr Tedeschi did was done openly before a very experienced senior counsel for the defence and before a very experienced judge of the Supreme Court of New South Wales. The way he did that was not the subject of objection.

Now, her Honour is saying he acted so openly he has now accepted that it was inappropriate but at the time he did it no one else noticed, no one complained. I appreciate that is not the test. But that directly goes to his state of mind. He failed to realise that by so doing, unwittingly he risked reversing the onus of proof.

Then, in terms of malice, a very important passage appears at page 538. If I could just take your Honours to this. There are two passages, really, at paragraph 101 and paragraph 104. This is on malice. Your Honours see at 538, paragraph 100, the court says:

Having considered the evidence in detail we agree with her Honour that Mr Tedeschi’s explanation is not so obviously untenable that it must be rejected.

At 104, your Honours see the first sentence:

Having examined the evidence in the case, we are comfortably satisfied that her Honour did not err in failing to find that Mr Tedeschi’s explanations for his conduct were so untenable that they must be rejected.

One asks, rhetorically, what more could the Court of Appeal have done? They make it as clear as day, nothing. The attack on the Court of Appeal for somehow missing matters that validly were within the scope of the appeal before it, is insupportable, with great respect.

We have, in our written outline, put that the four points which the applicant frankly concedes were not raised on appeal but seeks to raise here for the first time, should not be allowed. It is contrary to all principle. They were not put to the primary judge. She had no chance to consider them. They were not put to the Court of Appeal – the same position. Your Honours would not have the benefit – particularly of the Court of Appeal’s reasoning on them. It is not enough to say, we for the applicant, say they are obvious. These are matters that also were not put to Tedeschi in a most lengthy cross‑examination. One might think an answer is, if they were put to Mr Tedeschi he would have denied them. We do not know – that is a matter of speculation.

But your Honours will know from the review of the evidence in the primary judgment which goes for hundreds of pages, that when propositions – and there were dozens, if not hundreds of propositions put against Mr Tedeschi by learned senior counsel then appearing at the trial – he did more than merely say, I deny that. He gave his explanations as to his state of mind, as to his process of reasoning, as to what was his position at the time.

Not only did he do that, your Honours, he made clear where he had some recollection, bearing in mind the events were 10 years or more previously, and he had done many trials in the meantime, and where he said, “Look, I have to rely on reconstruction”, he made it plain. So it was a combination. So on these other issues it cannot be said that there could be any fairness in allowing an appeal to go ahead on that footing when these were matters where he was accused of very grievous. unprofessional conduct and, on one view, conduct that could amount to criminal conduct in some respects.

So, your Honours, that is the background that we wish to put the balance of our submissions as concisely as we may. Here, as before the Court of Appeal, an undercurrent of the application is that, having regard to the facts the primary judge did find, a finding of malice was inevitable. But if her Honour had drawn the inferences, which are identified in volume 2 at page 510, paragraph 40, by the Court of Appeal, they were the matters which were relied on before the Court of Appeal, saying well, if the judge had drawn those inferences, a finding of malice was inevitable. Your Honours may see at the top of, I think, page 511, the inferences are identified at the bottom of page 510 of volume 2:

Her Honour declined to find Mr Tedeschi had actual knowledge of this fact.

That was a critical fact on the 50 questions, and her Honour felt unable to conclude she knew subjectively that Mr Tedeschi’s conduct of the prosecution was improper. Then, at paragraph 41 at the top of 511:

The appellant submitted that if her Honour had drawn these inferences, an ultimate finding that Mr Tedeschi initiated or maintained the prosecution maliciously was “inevitable”.

It was on that basis that the appeal was run. Now, it would be very unfair to allow this application on the basis on which two simple grounds of appeal are identified, but the argument in support of them goes very much beyond what was put to the primary judge or the Court of Appeal.

The fact is the learned primary judge was not obliged to draw those inferences and she did not draw them. But not only that she explained in detail why she did not draw them. This is not a case where there were inferences left in the air, so to speak. Our learned friends put submissions, “Well, she made no finding about knowledge.” We say she did. Before the Court of Appeal, it was put – and this is at volume 2, in pages 510 to 511, paragraphs 39 to 40 – there the court identified the applicant’s case before them was that Mr Tedeschi actually knew that the Crown case lacked reasonable or probable cause and that he actually knew that his conduct during the trial was improper. So they were crystal clear before the Court of Appeal.

The Court of Appeal pointed out that the appeal before it was brought on a narrow basis and, we submit, one which failed to recognise that the primary judge’s findings about Mr Tedeschi’s mental processes was an assessment of his state of mind – that is, his knowledge and belief at the time of the trial. Her Honour formed that assessment based on Mr Tedeschi’s lengthy cross-examination over four days, which meticulously explored myriad aspects of his state of mind, not only during the three months of the trial, but in the lengthy preparation beforehand.

Then, your Honours, at page 516 of volume 2, at lines 28 to 44 – I will not read them out other than one critically important remark – the court observed that the primary judge:

carefully weighed the explanations she saw and heard Mr Tedeschi give against all of the evidence and the probabilities as she assessed them.

Based on that, your Honours, there can be no doubt that the primary judge’s acceptance or otherwise of Mr Tedeschi’s evidence was inherent in her approach and in the obviously demeanour‑based findings summarised by the Court of Appeal in its judgment, particularly in volume 2 at page 516 from about line 50 through to page 519 at line 10. The Court of Appeal also said at paragraph 78 of the judgment – this is at page 530 – that the applicant’s prosecution was based on:

a vast number of circumstantial matters –

including, as the primary judge found, that there was a sound basis in the evidence upon which to exclude suicide as an explanation for Ms Byrne’s death. Now, one asks, what is the real criticism here when assessed against, firstly, what the primary judge did over 484 pages and what the Court of Appeal did in evaluating that. If I could refer your Honours, without reading it all out, to some important passages in the Court of Appeal judgment commencing in volume 2 at page 516 in paragraph 48, the introduction is important:

There was little attempt by the appellant to grapple with the evidently demeanour-based critical findings made about Mr Tedeschi relevant to the topic of malice. In particular –

Obviously, I am not going to read all those out, but when your Honour glances at them they are critical and they were not grappled with at the trial and they were not grappled with on appeal. But when their Honours considered what the primary judge did they point out that her Honour grappled with them, doing the best she could, and resolved them in the way that is set out. In paragraph 49 – and this is in response or may I just refer to this in the context of Justice Gordon’s question to my learned friend, Mr Reynolds:

The third matter to notice is that over the course of his four day cross‑examination, no particular ulterior motive was suggested to Mr Tedeschi as to why, on the appellant’s case, he had prosecuted the appellant for a purpose ulterior to the purposes associated –

and so on. Yes, it is on the applicant’s case a Trobridge v Hardy case, but the concluding words of that paragraph are well‑known:

Nevertheless, the burden of proving that a professional prosecutor acted with malice is a heavy one. In this regard, the appellant did not suggest that tendency reasoning applied in this case in relation to other cases where criticism has been made of Mr Tedeschi’s conduct.

Then at paragraph 50 I would refer to there is no differentiation at all between initiation of the prosecution and carrying it forward, and that is where the all or nothing part is to be seen, again, I hope without being tedious.

At paragraph 51, to set the scene her Honour set out two important paragraphs of the primary judgment at [1145] and [1146] and in summary what her Honour is saying is, “If I was satisfied in effect that he had actual knowledge but he knew he was acting contrary to his ethical obligations, he knew he was acting improperly, well, I’d have no difficulty finding that he acted maliciously or that there was a subjective absence of reasonable and probable cause. But I have to undertake an exercise of weighing up certain facts that I have found against him, against my assessment of Mr Tedeschi and his state of mind based on all of the evidence, but particularly my assessment of his creditworthiness”.

It was fundamental to her Honour’s findings that, however misguided he was, he was not malicious within the law. That does not mean he was not subject to appropriate criticism. Of course he was, and he got it. But in the numbered paragraphs at the bottom of 520, from (1) right through, their Honours go into the detail of why in their view there was no error in the primary judge’s approach, and in paragraph 57 they say:

An overzealous prosecution, in and of itself, does not necessarily demonstrate malice but may provide cogent evidence of malice.

Both the primary judge and the Court of Appeal were cognisant of that. The primary judge said as much clearly and repeatedly:

Her Honour’s ultimate conclusions expressly addressed this issue.

Then at 58 the court talks about the nuanced function of an appellate court, cites Anderson and some remarks of Justice Leeming in the New South Wales Court of Appeal. So, your Honours, if I might briefly deal with some matters that are put by the applicant in his reply in volume 2 from pages 591 to 595 – and these are addressed particularly to paragraphs 5 to 11 of the reply.

The applicant contends that the primary judge failed to make factual findings about knowledge in relation to two core defects in the Crown case. They were not put as such to the primary judge in that context, nor to the Court of Appeal. It is put there in writing:

that the CA conducted no review at all of the evidence in his favour which was very strong –

When the Court of Appeal says it has reviewed all of the evidence, that is evidence, however it falls, for or against the then plaintiff or not. But there is no doubt it was done. Those two propositions are incorrect. The error, we submit, in the applicant’s approach, is to confuse Mr Tedeschi’s evidence that he knew of his legal and ethical obligations as Crown Prosecutor with what the applicant had to prove, namely, that he actually knew that his acts were acts in breach of those obligations.

These two concepts are different. Her Honour’s reasons and conclusions on the issue, we submit, conclusively demonstrate that she recognised the difference and while she did not agree with Mr Tedeschi, she found the explanation lay in his psyche.

Your Honours, this is not a case of there being none so blind who will not see. It is a case where Mr Tedeschi did not see. He was utterly imbued by his case theory – he was utterly caught up in Professor Cross’ four core findings. Her Honour – as your Honours are no doubt aware – dealt with that exhaustively in her reasons. The fact is, he had tunnel vision. I have referred your Honours to the Court of Appeal’s correct statement of the law that a prosecutor who is blind is not malicious. As the Court said, findings that someone acted contrary to ethical obligations, when they do not see it, do not dictate a finding of malice.

The respondent in the reply deals with five so‑called legal issues – high level of confidence. The primary judge used the expression “high level of confidence”. She was simply encapsulating section 140(2) of the Evidence Act – no more, no less. She said herself she was applying section 140(2). The Court of Appeal expressly noted that.

NETTLE J: .....time, Mr Neil.

MR NEIL: Thank you, your Honours. I conclude merely by saying we rely on what we put in our written outline - it has not been addressed orally - on the Canadian case of Miazga v Kvello. We say it has no application to this case. May it please, your Honours.

NETTLE J: Thank you, Mr Neil. Mr Reynolds, is there any reply?

MR REYNOLDS: Yes, there is, your Honours.

NETTLE J: Yes.

MR REYNOLDS: My learned friend says very little in response to the actual points that I have made. Can I deal with them briefly? Our first point is about that neither the judge nor the Court of Appeal dealt at all with the issue of knowledge of misconduct. My learned friend cannot point to any passage in either judgment where that has been done.

It is not sufficient for my learned friend to point to a passage in the Court of Appeal, for example, where they say, we have reviewed the evidence and there is no error. You have to go on these issues, for example, of knowledge of misconduct, knowledge of evidential holes. One needs to go to the evidence, address the evidence and look at the issues in the arguments. You cannot just say, yes, we read the papers. It is not good enough, with respect. My learned friends, kind of, we have read the papers and looked at the evidence – particularly where it is this voluminous – just does not answer that point.

As far as the next point is concerned, that is the knowledge of the two evidential holes, or subjective absence and reasonable and probable cause, my learned friend effectively concedes that there is an error of law on my point about initiation and maintenance. All he says about it is well, that point was not taken. I said that. But it is still a critical error – a critical error that appears both under that heading and also under the issue of malice where the error is repeated.

On the factual issues of knowledge of two evidential holes, again, I make the same point. My learned friend cannot just say, well, the judges said they have looked at the evidence and they have found that there is no error. One needs to look at the evidence of the knowledge by Tedeschi of the two evidential holes which we submit is absolutely overwhelming. The judge virtually found that after Professor Elliott had given evidence that it was clear that what the problem was because he contradicted Professor Cross.

The Court of Appeal do not deal with this either. Nor does the primary judge except insofar as there is this rollup erroneous treatment of the issue by talking about initiation and maintenance. On malice, again, my learned friend on this error of initiate and maintain does not respond except to say, well, that point was not taken below. It is still a fatal error and I
submit we be permitted to take it in this Court and, again, we get this fact finding at 1341 and 1342.

My learned friend does not respond to that except just by grabbing hold of this notion of high level of confidence which is not the point that I am making. The point is that one cannot make findings of fact in that way and, again, there has not been any review of the evidence because this judicial shortcut is taken where the judge says, in effect, well, I cannot find that the evidence was perjury or I cannot find that his evidence was Wednesbury unreasonable and, therefore, I do not have to deal with any of it.

That is the problem, that at every level in this case from malice to knowledge of absence of reasonable and probable cause to knowledge of misconduct, neither the judge nor the Court of Appeal have properly dealt with the issues. If the Court pleases, those are my submissions.

NETTLE J: Thank you, Mr Reynolds.

We are not persuaded that there is error demonstrated in the Court of Appeal’s process of reasoning and we do not consider that it would be in the interests of justice in the circumstances of this case to entertain arguments contained in grounds of appeal which were not advanced below. In the result, we could not consider that an appeal to this Court would enjoy sufficient prospects of success to warrant the grant of special leave. The application is refused.

MR REYNOLDS: If the Court pleases.

MR NEIL: May it please the Court.

NETTLE J: Adjourn now. Thank you, gentlemen.

AT 1.20 PM THE MATTER WAS ADJOURNED