Death of Caroline Byrne - Appeal

Appeal

Wood's appeal hearing commenced on 22 August 2011 in the Criminal Court of Appeal before Chief Judge at Common Law Peter McClellan, Justice Megan Latham, and Justice Stephen Rothman. Wood's barrister Tim Game SC submitted that the jury's verdict was unreasonable and not supported by the evidence. His submission spoke of nine grounds for appeal. One was that the trial miscarried by reason of the prejudice occasioned by the Tedeschi's closing address. Others related to criticisms of Barr's directions to the jury.

Early media reporting of the appeal focused on Game's submission that the scientific evidence used to convict Wood and presented by Associate Professor Cross was flawed. A photograph was presented in the trial and purported to be taken in 1996 showing that scrub near the fenceline had limited Byrne's possible run-up to the jump, supporting an argument that she would have needed to have been thrown to achieve the horizontal distance from the cliff wall that her body travelled. The appeal judges heard and the Crown acknowledged that the photo was in fact taken in 2003 and that photo's quality meant that a shadow might have appeared to be scrub. The appeal judges heard that a 1996 colour photo which showed that there was no scrub limiting the run-up was available to the Crown during the trial but that the Crown had chosen to introduce the blurrier, non-contemporaneous, more ambiguous image.

Game's submission, consistent with so much of the trial evidence, concerned matters relating to the exact positioning of Byrne's body at the base of the rocks and the orientation of her legs and torso and leading to questions regarding the contended launch point and the assumptions and assertions made by Cross in his pre-trial studies and reports and his trial evidence. Day two of Game's submission focused on the police's changed view between 1996 and 2005 as to Byrne's landing spot and specifically trial evidence given by Sergeant Mark Powderly used to justify the reconstruction.

The Criminal Court of Appeal delivered their opinion on 24 February 2012 acquitting Wood of Byrne's murder and ordering his release from jail. The appellate judges delivered a unanimous decision that there was insufficient evidence beyond reasonable doubt that Wood murdered Byrne and that the jury's verdict was not supported. They dismissed the Crown evidence as being critically flawed and ruled that the possibility of her suicide ought not have been excluded.

McClennan J. described Cross' experiments as "unsophisticated" and in the summation of his decision said that he was not satisfied by either of the two motives presented by the Crown. Regarding the motive submitted by Tedeschi that Caroline had information about Rivkin's business dealings that Wood was trying to hide, McClennan said "The exploitation of public rumour and the use of mere innuendo to compensate for inadequate evidence of motive is not consistent with the obligations of a prosecutor to press the Crown case "to its legitimate strength" by reliance upon credible evidence". McLennan was also troubled that the notion Caroline may have been unconscious when she left the cliff top was introduced by the Crown late in the case. He described Tedeschi's suggestion, first made in his closing address and mentioned at no other time in evidence, that a "shot-put" action was used to despatch Caroline as "an invention of the prosecutor...for which there was absolutely no support in evidence". McClennan also expressed some doubt as the reliability of evidence concerning the claimed sightings of Wood and Byrne at Watson's Bay on 7 June 1995 noting that some of these witnesses had come forward years after the event and the initial investigations; he raised concerns that the Melbourne/Martin first identification of Wood and Byrne was based on a specific photos shown to them by Dally-Watkins rather than from being picked from a selection. Tedeschi was criticised by McClellan for presenting reasoning that was "dangerous" and "entirely without foundation". Tedeschi contributed to the alleged miscarriage with his "50 killer questions" which took an "impermissible course" in asking the jury to consider rhetorical questions dealing with matters that had not been presented with in evidence. McClennan ruled that he was not persuaded that Sgt Powderly's evidence regarding the changed landing position of the body was entirely reliable.

Wood was freed from prison on 24 February 2012; having served three years two months in Goulburn Correctional Centre, following an initial month in Parklea prison. Three weeks later the new New South Wales Director of Public Prosecutions, Lloyd Babb SC, issued a press release simply announcing that "the OPDD will not appeal the Court of Criminal Appeal's judgement in the matter of R v Gordon Wood . No further comment will be issued". This was 24 hours after meeting Tony Byrne and attending the Gap with him - a meeting which Byrne described as 'fruitful'.