Judgment

The pleadings

The standard of proof

The question of issue estoppel

The judgment of the Court of Criminal Appeal in summary

The plaintiff’s submissions

The defendant’s submissions

Is the claim in issue estoppel or abuse of process made out?

The identity of issue

The identity of parties

Conclusion on the question of issue estoppel

The elements of proof in a claim for malicious prosecution

The identity of the alleged prosecutors

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

The appointment of Hole B as the point of recovery

Sgt Powderly’s evidence at the inquest

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

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

Det Insp Jacob

Mr Tedeschi

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

Mr Tedeschi as a prosecutor

Det Insp Jacob as a prosecutor

A/Prof Cross as a prosecutor

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

What constitutes malice?

The tests for proof of a want of reasonable and probable cause

The temporal question

The hearing in summary

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

The Court’s approach to the evidence and the issues

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

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

The initial involvement of A/Prof Cross with the investigation into Ms Byrne’s death

The reliance, if any, of A/Prof Cross’s motivations in offering to assist

The formal requesting letter from Det Insp Jacob to A/Prof Cross

The draft of the first Cross report

Email correspondence between A/Prof Cross and Det Insp Jacob following service of the first draft report

The (settled) first Cross report: 19 November 2003

The first Cross report

Deletion of the word “accidentally” from the first report

The visit to the Gap in January 2004

The evidence of Ms Comina and Det Insp Jacob re the discovery of the Hole A/Hole B controversy

The new launch site is identified

The police request for a further (second) report from A/Prof Cross

The (draft) second Cross report: 16 June 2004

The ODPP sends requisitions

Prof Elliot’s first report

Prof Elliot’s second report

Mr Tedeschi’s comments on A/Prof Cross’s test results

Further requisitions are sent

Further poolside tests are conducted

The bench press issue

Further requisitions are sent and a further site visit arranged

A fourth report is requested

The fifth Cross report

The sixth Cross report

The seventh Cross report

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

Finding on whether A/Prof Cross is a prosecutor

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

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

The allegations that Det Insp Jacob acted dishonestly

The three phases of the police investigation

Ms Byrne is reported as a missing person

The post-mortem examination

The toxicological analysis

The cause of death

The first and second phases of the police investigation, including the further evidence adduced at the inquest

The plaintiff’s first account of events to Cst Woods on 8 June 1995 and then on 12 June 1995

Mr Byrne’s involvement in the investigation

The inquiry into Ms Byrne’s mental health in the first phase of the investigation and how it was treated by investigators

The second phase of the police investigation

The evidence of Mr Martin and Mr Melbourne at the inquest

The Coroner’s findings

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

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

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

The period in Ms Byrne’s life from 1989 to 1994

January 1995 to the week commencing Monday 4 June 1995

The week before Ms Byrne’s death

Wednesday 7 June 1995 to Thursday 8 June 1995

The plaintiff’s account of his movements on 7 June 1995 and the accounts of others as to that issue

The twelve issues Det Insp Jacob focused upon in the Sufficiency of Evidence Report

Ms Byrne’s movements and the plaintiff’s movements on the afternoon on 7 June 1995

Mr Melbourne’s first statement

Ms Clifford’s first statement to the police

The plaintiff’s identification by Mr Martin at Glebe Coroner’s Court

The plaintiff’s identification by Mr Melbourne at Glebe Coroner’s Court

Mr Melbourne’s second statement

Mr Martin’s second statement

Mr Doherty’s first statement

Mr Doherty’s second statement

Mr Doherty’s third statement

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

The plaintiff leaves a note for Ms Byrne prior to leaving to “search” for her

The plaintiff collects a car to “search” for Ms Byrne via the Kings Cross carpark

The plaintiff searches for Ms Byrne

The plaintiff is drawn to the Gap by spiritual communications;

The plaintiff locates the Suzuki Vitara in Gap Lane

The search of the Gap before the involvement of police

The suicide hypothesis is rejected by Det Insp Jacob

Ms Yule’s “psychological autopsy” report

Resolution of the plaintiff’s alternate case against Det Insp Jacob as a prosecutor

The issue of identification

Mr Melbourne’s evidence at trial

Mr Martin’s evidence at trial

Mr Doherty’s evidence at trial

The effect of displacement and the plaintiff’s submissions concerning the “identification evidence”

The alternate case against Det Insp Jacob as prosecutor fails: Mr Tedeschi is the only prosecutor

Mr Tedeschi’s evidence on the issue of identification

The defendant’s submission on the identification issue

The competing cases on the “identification evidence” in summary and their resolution

The significance of the green Bentley on the issue of identification and Mr Tedeschi’s submissions about it

Conclusions on the issue of the green Bentley

The Crown’s failure to exclude suicide

The submissions of the parties on the question of suicide and Mr Tedeschi’s obligations in dealing with it

Mr Tedeschi did not lead evidence of Ms Byrne’s 1992 hospital admission

The significance of A/Prof Cross’s evidence on the failure to exclude suicide

Wave activity and suicide

Mr Tedeschi’s duties as a prosecutor

Mr Tedeschi’s evidence in these proceedings and the competing submissions of the parties concerning it

The issue of the conscious/struggling woman as assessed by Mr Tedeschi

The issue of a limp and unresponsive unconscious woman

The shotput throw

The association between bench press ability and throw strength

Has the plaintiff established he was prosecuted maliciously without reasonable and probable cause by Mr Tedeschi?

Has the plaintiff proved Mr Tedeschi prosecuted the plaintiff maliciously?

Examples of what the plaintiff relies upon as evidence of Mr Tedeschi “fighting or straining for a conviction” in his closing submissions (not particularised in the pleadings)

The “gym fight”

Mr Georgiou’s evidence

Mr Doherty’s evidence and the “sobbing girl”

Mr Tedeschi’s evidence in justification of the Crown case on motive

The plaintiff had “insider trading information”

The significance of Exhibit DJ (formerly Figure 17 in the second Cross report)

The carpark issue

The tender of Exhibit DO

The “50 Questions”

The “killer point”

The various accounts of seeing Ms Byrne’s body and clothing at the base of the cliff

Evidence of what the plaintiff said after 7/8 June 1995

The “Witness” program (Ex 1 in these proceedings)

Mr Tedeschi’s closing address on “the killer point”

Conclusions on the issue of malice

Orders

JUDGMENT

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. 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. 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). 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”. 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. 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. 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. 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. 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. 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. 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:

(1) that proceedings of the kind to which the tort applies (generally, as in this case, criminal proceedings) were initiated against the plaintiff by the defendant;

(2) that the proceedings terminated in favour of the plaintiff;

(3) that the defendant, in initiating or maintaining the proceedings acted maliciously; and

(4) that the defendant acted without reasonable and probable cause.

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

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.

The conduct of the defendant in bringing and maintaining the prosecution of the plaintiff for the murder of Caroline Byrne was malicious in that it sought to convict the plaintiff of the murder regardless of his guilt or innocence, contrary to the evidence, and by employing means contrary to a prosecutor’s obligations of fairness…

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. Paragraph 17 reads:

The defendant acted without reasonable and probable cause in bringing and maintaining the prosecution of the plaintiff for the murder of Caroline Byrne.

Particulars

17.1 The plaintiff relies on the allegations in paragraph 16.

The standard of proof

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:

(a) the nature of the cause of action or defence, and

(b) the nature of the subject-matter of the proceeding, and

(c) the gravity of the matters alleged.

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

Except upon criminal issues to be proved by the prosecution, it is enough that the affirmative of an allegation is made out to the reasonable satisfaction of the tribunal. But reasonable satisfaction is not a state of mind that is attained or established independently of the nature and consequence of the fact or facts to be proved. The seriousness of an allegation made, the inherent unlikelihood of an occurrence of a given description, or the gravity of the consequences flowing from a particular finding are considerations which must affect the answer to the question whether the issue has been proved to the reasonable satisfaction of the tribunal. In such matters “reasonable satisfaction” should not be produced by inexact proofs, indefinite testimony, or indirect inferences. Everyone must feel that, when, for instance, the issue is on which of two dates an admitted occurrence took place, a satisfactory conclusion may be reached on materials of a kind that would not satisfy any sound and prudent judgment if the question was whether some act had been done involving grave moral delinquency.

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]:

The ordinary standard of proof required of a party who bears the onus in civil litigation in this country is proof on the balance of probabilities. That remains so even where the matter to be proved involves criminal conduct or fraud. On the other hand, the strength of the evidence necessary to establish a fact or facts on the balance of probabilities may vary according to the nature of what it is sought to prove. Thus, authoritative statements have often been made to the effect that clear or cogent or strict proof is necessary “where so serious a matter as fraud is to be found”. Statements to that effect should not, however, be understood as directed to the standard of proof. Rather, they should be understood as merely reflecting a conventional perception that members of our society do not ordinarily engage in fraudulent or criminal conduct and a judicial approach that a court should not lightly make a finding that, on the balance of probabilities, a party to civil litigation has been guilty of such conduct.

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]:

[T]here are no hard and fast rules by which serious allegations might be proved from circumstantial evidence. The inquiry is simply, taking due account of what was said in Neat Holdings Pty Ltd v Karajan Holdings Pty Ltd, has the allegation been proved on a balance of probabilities.

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. 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:

[T]he primary judge had to be able to conclude that the circumstances raised “a more probable inference in favour of what is alleged”.

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

[T]he existence of other reasonable hypotheses is simply a matter to be taken into account in determining whether the fact in issue should be inferred from the facts proved.

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]:

We are satisfied that the Briginshaw principle as articulated by the cases referred to above has application to the present case. This is because the primary judge’s conclusion at [198] of her reasons that Briggs lacked reasonable and probable cause to bring the charges involving the knife, and that, in doing so, he acted for an improper purpose and, therefore, maliciously, was founded on her finding at [171]-[172] that she was satisfied that Briggs was aware that the knife was taken from the kitchen drawer and placed in the bedroom by one or more police officers after the respondent had been removed from the Gaffney house. In the language of Briginshaw, the seriousness of that finding and the gravity of the consequences flowing from it are such that it requires “clear or cogent or strict proof” in order to be made out on the balance of probabilities.

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. 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. 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:

[129] 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, a Full Court of this Court considered the standard of proof required in civil proceedings in the light of Briginshaw and the requirements of s 140. The Court said (at 480 [32]) that:

“The mandatory considerations which s 140(2) specifies reflect a legislative intention that a court must be mindful of the forensic context in forming an opinion as to its satisfaction about matters in evidence. Ordinarily, the more serious the consequences of what is contested in the litigation, the more a court will have regard to the strength and weakness of evidence before it in coming to a conclusion.”

The Full Court continued (at 482 [37]), saying that:

“Ultimately, because this is a civil, not criminal, proceeding the civil standard of proof applies. Thus, the ACCC had to establish that the circumstances appearing in the evidence gave rise to a reasonable and definite inference, not merely to conflicting inferences of equal degrees of probability, that [the impugned conduct had occurred].”

[130] A finding that a Commonwealth Government Minister has deliberately exercised an important statutory power knowing that, in doing so, he was acting unlawfully is properly to be characterised as grave. The legal consequences are potentially serious as too is the effect on the Minister’s reputation. In circumstances in which, on the facts found, conflicting inferences are open and one of those inferences is favourable to the respondent, the Court will not be satisfied that the applicant’s case has been proved to the necessary standard. For the reasons which we have explained this is such a case.

(Emphasis added.)

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. 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

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. 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. 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). 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.

The judgment of the Court of Criminal Appeal in summary

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

The court on any appeal under section 5 (1) against conviction shall allow the appeal if it is of opinion that the verdict of the jury should be set aside on the ground that it is unreasonable, or cannot be supported, having regard to the evidence, or that the judgment of the court of trial should be set aside on the ground of the wrong decision of any question of law, or that on any other ground whatsoever there was a miscarriage of justice, and in any other case shall dismiss the appeal; provided that the court may, notwithstanding that it is of opinion that the point or points raised by the appeal might be decided in favour of the appellant, dismiss the appeal if it considers that no substantial miscarriage of justice has actually occurred.

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

[387] I have reviewed the entirety of the evidence at the trial and have expressed my view about the significance of many parts of it. Having regard to the entirety of the evidence I have concluded that the verdict of the jury cannot be supported. To my mind the circumstances do not establish beyond reasonable doubt that the applicant murdered Ms Byrne.

[388] Leave to raise Ground 1 should be granted, the appeal upheld, and a verdict of acquittal entered. However, it remains necessary to deal with the other grounds of appeal: Cornwell v The Queen [2007] HCA 12; 231 CLR 260 at [105].

Latham and Rothman JJ agreed with his Honour’s conclusion and his reasons. The remaining grounds of appeal were as follows:

Ground 2: A miscarriage of justice was occasioned by the directions given by the learned trial judge in relation to:

A. The positive identification evidence of Martin and Melbourne relied on as day time sightings of the applicant and Ms Byrne at Watsons Bay; and/or

B. The evidence of Mr Doherty and Miss Kingston relied on by the prosecution as night time sightings of the applicant and Miss Byrne

Ground 3: The evidence and the opinions of A/Prof Cross caused the trial to miscarry.

Ground 4: His Honour erred in rejecting evidence showing rocks at the base of the gap being covered in water, and movement of water over the rocks, as being irrelevant to the trial.

Ground 5: His Honour erred in law in declining to identify for the jury and direct as to the intermediate facts requiring proof beyond reasonable doubt in accordance with Shepherd v The Queen (1990) 170 CLR 573.

Ground 6: the trial miscarried by reason of the prejudice occasioned by the crown prosecutor.

Ground 7: The trial judge erred both in leaving murder on the basis of joint criminal enterprise to the jury and in failing to identify properly the basis upon which any such verdict should be reached.

Ground 8: The learned trial judge erred in allowing the crown to present evidence and make submissions suggesting that the deceased's knowledge of details relating to the offset alpine fire was a motive for the offence of murder.

Ground 9: There has been a miscarriage of justice in the trial of the applicant on account of fresh evidence and evidence undisclosed at the trial.

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

The plaintiff’s submissions

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:

[21] Estoppel in relation to judicial determinations is of a different nature. It is a common law doctrine informed, in its relevant application, by similar considerations of finality and fairness. Yet its operation is not confined to an exercise of judicial power; it also operates in the context of a final judgment having been rendered in other adversarial proceedings. It operates in such a context as estoppel operates in other contexts: as a rule of law, to preclude the assertion of a right or obligation or the raising of an issue of fact or law.

[22] Three forms of estoppel have now been recognised by the common law of Australia as having the potential to result from the rendering of a final judgment in an adversarial proceeding. The first is sometimes referred to as “cause of action estoppel”. Estoppel in that form operates to preclude assertion in a subsequent proceeding of a claim to a right or obligation which was asserted in the proceeding and which was determined by the judgment. It is largely redundant where the final judgment was rendered in the exercise of judicial power, and where res judicata in the strict sense therefore applies to result in the merger of the right or obligation in the judgment. The second form of estoppel is almost always now referred to as “issue estoppel”. Estoppel in that form operates to preclude the raising in a subsequent proceeding of an ultimate issue of fact or law which was necessarily resolved as a step in reaching the determination made in the judgment. The classic expression of the primary consequence of its operation is that a “judicial determination directly involving an issue of fact or of law disposes once for all of the issue, so that it cannot afterwards be raised between the same parties or their privies“ [citing Blair v Curran (1939) 62 CLR 464 at 531]. The third form of estoppel is now most often referred to as “Anshun estoppel”, although it is still sometimes referred to as the “extended principle” in Henderson v Henderson. That third form of estoppel is an extension of the first and of the second. Estoppel in that extended form operates to preclude the assertion of a claim, or the raising of an issue of fact or law, if that claim or issue was so connected with the subject matter of the first proceeding as to have made it unreasonable in the context of that first proceeding for the claim not to have been made or the issue not to have been raised in that proceeding. The extended form has been treated in Australia as a “true estoppel” and not as a form of res judicata in the strict sense. Considerations similar to those which underpin this form of estoppel may support a preclusive abuse of process argument.

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. 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. 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. 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. 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.

The defendant’s submissions

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. 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. 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. 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]). 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. 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. 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.

Is the claim in issue estoppel or abuse of process made out?

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. 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:

(1) that the same question has been decided;

(2) that the judicial decision which is said to create the estoppel was final; and,

(3) that the parties to the judicial decision or their privies were the same persons as the parties to the proceedings in which the estoppel is raised or their privies.

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”. At 435-436 Dixon J stated:

The jurisdiction is statutory, and the court has no further authority to set aside a conviction upon indictment than the statute confers. The Criminal Appeal Act of 1912 N.S.W. is based upon the English Act of 1907. It does not give a general appellate power in criminal cases exercisable on grounds and by a procedure discoverable from independent sources. It defines the grounds, prescribes the procedure and states the duty of the court. The statute deals with criminal appeals rather as a right or benefit conferred on prisoners convicted of indictable offences and sets out the kind of convictions and sentences from which they may appeal and lays down the conditions on which they may appeal as of right and by leave and the procedure which they must observe. It limits the time within which appeals and applications for leave to appeal may be brought, subject, however, to a discretionary power in the court to extend the period except where the sentence is capital. The grounds or principles upon which the court is to determine appeals are stated, and the duty is imposed on the court of dismissing an appeal, unless on those principles it determines that it should be allowed. The determination of an appeal is evidently definitive, and a conviction unappealed is equally final.

(Emphasis added.)

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

The identity of issue

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. 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. 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. 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. 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. 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. 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. 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. 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”. 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:

Long standing authorities, in my opinion, warrant the statement that, as a mechanism in the process of accumulating material for the determination of issues in a proceeding between parties, an estoppel is available to prevent the assertion in those proceedings of a matter of fact or of law in a sense contrary to that in which that precise matter has already been necessarily and directly decided by a competent tribunal in resolving rights or obligations between the same parties in the same respective interests or capacities, or between a privy of each, or between one of them and a privy of the other in each instance in the same interest or capacity. The issue thus determined, as distinct from the cause of action in relation to which it arose, must have been identical in each case.

(Emphasis added.)

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

Nothing but what is legally indispensable to the conclusion is thus finally closed or precluded. In matters of fact the issue estoppel is confined to those ultimate facts which form the ingredients in the cause of action, that is, the title to the right established. Where the conclusion is against the existence of a right or claim which in point of law depends upon a number of ingredients or ultimate facts the absence of any one of which would be enough to defeat the claim, the estoppel covers only the actual ground upon which the existence of the right was negatived. But in neither case is the estoppel confined to the final legal conclusion expressed in the judgment, decree or order. In the phraseology of Coleridge J. in R. v. Inhabitants of the Township of Hartington Middle Quarter, the judicial determination concludes, not merely as to the point actually decided, but as to a matter which it was necessary to decide and which was actually decided as the groundwork of the decision itself, though not then directly the point at issue. Matters cardinal to the latter claim or contention cannot be raised if to raise them is necessarily to assert that the former decision was erroneous. (Emphasis added.)

In the phraseology of Lord Shaw, "a fact fundamental to the decision arrived at" in the former proceedings and "the legal quality of the fact" must be taken as finally and conclusively established (Hoystead v. Commissioner of Taxation). But matters of law or fact which are subsidiary or collateral are not covered by the estoppel. Findings, however deliberate and formal, which concern only evidentiary facts and not ultimate facts forming the very title to rights give rise to no preclusion. Decisions upon matters of law which amount to no more than steps in a process of reasoning tending to establish or support the proposition upon which the rights depend do not estop the parties if the same matters of law arise in subsequent litigation.

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. 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. 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. 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:

[N]o estoppel arises concerning evidentiary facts, no matter how fundamental they may have been in the chain of proof or reasoning concerning the decision on an ultimate issue.

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

[61] … The form of the first proceeding, particularly the issues joined or admitted on any pleadings, will be important. In Hoysted v Federal Commissioner of Taxation ((1921) 29 CLR 537 at 562), Higgins J said:

"A point or an issue may be actually controverted, may be in actual controversy, in actual litigation, although it is not argued, or argued properly. A point may be in controversy although counsel may address no arguments to it, or may overlook certain aspects."

[62] An issue admitted on pleadings or other formal process or otherwise conceded at a hearing may, from the nature of the outcome, necessarily have been decided. But what of other questions arising in the first proceeding? In Blair v Curran, Dixon J observed that a "judicial determination concludes, not merely as to the point actually decided, but as to a matter which it was necessary to decide and which was actually decided as the groundwork of the decision itself, though not then directly the point at issue". His Honour went on to distinguish findings concerning only "evidentiary facts" not the "ultimate facts" which formed the very title to rights in dispute. This analysis, with the emphasis on decision-making, would require more than non-satisfaction.

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

The conclusion in the Appeal judgment at [759]-[760] that the photograph of the northern ledge marked “1996” tendered at the plaintiff’s trial “could not have been taken before May 2003” was an essential foundation in upholding Ground 9 that there has been a miscarriage of justice in the trial of the plaintiff on account of fresh evidence and evidence undisclosed at the trial. To put this in issue again would necessarily put into issue the correctness of the Appeal judgment. The defendant is accordingly estopped from denying this conclusion in this proceeding and further it would be an abuse of process even if it is not so estopped for it to deny this conclusion since it would undermine the Appeal judgment and the Court’s ruling the plaintiff’s quashed conviction resulted from a trial that miscarried.

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

The conclusion in the Appeal judgment at [331] that “the autopsy confirmed the absence of evidence of either alcohol or drugs in [Caroline] Byrne’s blood” was essential groundwork to upholding Ground 1 that the verdict is unreasonable and cannot be supported by the evidence. To put this in issue again would necessarily put into issue the correctness of the Appeal judgment. The defendant is accordingly estopped from denying this conclusion in this proceeding and further it would be an abuse of process even if it is not so estopped for it to deny this conclusion since it would undermine the Appeal judgment and the plaintiff’s acquittal.

There was no issue in the proceedings as to the terms of the toxicological report or its accuracy. A more egregious example is the following submission put in 2016 referable to par 23 of the Reply:

The conclusions in the Appeal judgment at [797]-[809] that evidence about Georgiou that showed his prior acts of dishonesty and that Detective Inspector Jacob had provided a letter of support for Georgiou in respect of his evidence at the plaintiff’s trial should be admitted at the appeal as fresh evidence that had not previously been disclosed to the plaintiff before or during his trial were essential foundations in upholding Ground 9 that there has been a miscarriage of justice in the trial of the plaintiff on account of fresh evidence undisclosed at the trial. To put these in issue again would necessarily put into issue the correctness of the Appeal judgment. The defendant is accordingly estopped from denying these conclusions in this proceeding and further it would be an abuse of process even if it is not so estopped for it to deny these conclusions since it would undermine the Appeal judgment and the Court’s ruling the plaintiff’s quashed conviction resulted from a trial that miscarried.

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:

16.51 The defendant did not disclose to the plaintiff’s lawyers the criminal history of prosecution witness Angelo Georgiou before or during the trial or that Detective Inspector Jacob had provided a letter of support for Georgiou for the purposes of Georgiou’s criminal proceedings.

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

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. 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. 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. 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.

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. 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. By way of example the defendant submitted as follows:

497. For example, in paragraph 3 of the Reply the plaintiff pleads that the defendant is issue estopped from denying the finding of the CCA that the evidence adduced at the plaintiff's trial did not establish beyond reasonable doubt that Caroline Byrne did not take her own life. This is a reply to the defendant's non-admission of paragraph 16.6 of the ASC which alleges that "At no time between June 1995 to the date of the plaintiff's conviction in November 2008 was the defendant, the New South Wales Police or the Crown Prosecutor in a position to adduce evidence excluding the reasonable possibility that Caroline Byrne committed suicide". The proposition in paragraph 3 of the Reply cannot even be described as a component of a broader allegation in paragraph 16.6 of the ASC. [Paragraph 16.6 of the ASC reads: “At no time between June 1995 to the date of the plaintiff’s conviction in November 2008, was the defendant, the New South Wales Police or the Crown Prosecutor in a position to adduce evidence excluding the reasonable possibility that Caroline Byrne committed suicide.”] The two propositions, while related, are substantially different. In substance, paragraph 3 of the Reply involves a wholly new allegation of fact, with an accompanying assertion that the defendant is issue estopped from denying that fact.

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. 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. 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. 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. 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. 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:

[I]t relied solely upon evidence of facts from which the jury was asked to draw inferences, which in turn were said to provide the foundation for the ultimate fact in issue - namely, whether or not the accused killed Ms Byrne.

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:

[T]he trier of fact must bear in mind that a circumstantial case is to be considered holistically: R v Hillier [2007] HCA 13; (2007) 228 CLR 618 at [48]-[49] (Gummow, Hayne and Crennan JJ). Putting to one side for the moment "indispensable" intermediate facts (as to which see Ground 5), it would be wrong for a jury to acquit an accused merely because it harbours reasonable doubts about some inculpatory evidence, though it ignores or unduly minimises other, more compelling evidence of the accused's guilt. As it is often the case that "one piece of evidence ... resolves doubts as to another" (Chamberlain v The Queen [No 2] [1984] HCA 7; (1984) 153 CLR 521 at 535 (Gibbs CJ and Mason J)), it is necessary to weigh and consider the totality of the evidence: Hillier at [48]-[49]. In doing so, the finder of fact ought not stretch credulity or engage in tortuous reasoning in order to explain away each and every individual circumstance as being consistent with innocence: R v Micallef [2002] NSWCCA 480; (2002) 136 A Crim R 127 at [42] (Dunford J); Burrell v R [2009] NSWCCA 193 at [55] (Giles JA).

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]:

In the analysis that follows, I have resisted any temptation to consider the case against the accused in a piecemeal way. In my view, this is a case where doubts about each piece of circumstantial evidence are reinforced, rather than resolved, by the rest of the prosecution's case. I have also borne in mind the deference due by an appeal court to the combined experience and commonsense of a jury that convicts an accused person on the basis of circumstantial evidence alone: Burrell at [64]4651 (Giles JA); Chahine v R [2006] NSWCCA 179 at [88] (Johnson J, McClellan CJ at CL and Hoeben J agreeing); R v Kaldor [2004] NSWCCA 425; (2004) 150 A Crim R 271 at [2] (Dunford J). However, my evaluation of the whole of the evidence satisfies me that the jury's verdict cannot be supported. I am not satisfied beyond reasonable doubt of the applicant's guilt. Although the jury heard from various witnesses the applicant did not give evidence. I do not believe the jury's verdict can be explained by any advantage which they had which was not available to this Court.

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

The defendant prosecuted the plaintiff despite the fact that the case against him was entirely circumstantial, and where doubts about each piece of circumstantial evidence are reinforced rather than resolved by the rest of the prosecution case. The defendant through the Crown Prosecutor and Detective Inspector Jacob must reasonably have had these doubts in light of their extensive experience in criminal matters.

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. Paragraph 27 of the Reply is expressed as follows:

In response to the pleading in paragraph 61 of the defence that pleads to paragraph 16.56 of the further amended statement of claim filed 21 February 2017:

a. the defendant is issue estopped from denying the finding of the Court in the Appeal judgment at [56] that “this is a case where doubts about each piece of circumstantial evidence are reinforced, rather than resolved, by the rest of the prosecution’s case” that was a necessary finding in upholding Ground 1 to enter a ground of acquittal; and

b. further for the defendant to deny the finding referred to in paragraph a. above would be an abuse of process.

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. 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:

[378] The prosecution case against the applicant was circumstantial. The High Court emphasised in Hillier at [46] that when considering a circumstantial case "all of the circumstances established by the evidence are to be considered and weighed in deciding whether there is an inference consistent with innocence reasonably open on the evidence."

[379] In Chamberlain [No 2] at 535 Gibbs CJ and Mason J said:

"In a case depending on circumstantial evidence, the jury should not reject one circumstance because, considered alone, no inference of guilt can be drawn from it. It is well established that the jury must consider 'the weight which is to be given to the united force of all the circumstances put together: per Lord Cairns, in Belhaven and Stenton Peerage (1875) 1 App Cas 278 at 279."

[380] In the course of these reasons I have considered the many aspects of the prosecution case. They have, of necessity, been separately discussed for the purpose of determining the contribution which they together make to the entire prosecution case. Of primary significance to that case is a conclusion that the applicant was with Ms Byrne at the Gap when she died.

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

[386] Ms Byrne died when she landed on the rocks at the base of the Gap. To my mind whether she voluntarily fell or was thrown cannot be determined from the expert evidence. Although the evidence of Whelan suggested that Ms Byrne may have recovered from her previous depressive episode in which she attempted suicide, there was considerable evidence that she was very depressed at the time and had previously attempted suicide. I am not persuaded beyond reasonable doubt that she did not take her own life.

[387] I have reviewed the entirety of the evidence at the trial and have expressed my view about the significance of many parts of it. Having regard to the entirety of the evidence I have concluded that the verdict of the jury cannot be supported. To my mind the circumstances do not establish beyond reasonable doubt that the applicant murdered Ms Byrne.

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

[716] The Crown conceded, as it must, that the book by A/Prof Cross and a lecture that he posted on his website constitute fresh evidence. The evidence of A/Prof Cross was important in the Crown case. From his process of experimentation, physical measurement and deduction the Crown sought to persuade the jury that the possibility that Ms Byrne committed suicide could be excluded. To the extent that his evidence may have differed from that of the experts called by the defence, if A/Prof Cross’s credit were diminished, the likelihood of the jury accepting his evidence would have been reduced.

[717] My reading of the book and the lecture leads me to the conclusion that if it had been available at the trial, it would have significantly diminished A/Prof Cross’s credibility. In the book A/Prof Cross makes plain that he approached his task with the preconception that, based on his behaviour, as reported after Ms Byrne had died, the applicant had killed her. He clearly saw his task as being to marshal the evidence which may assist the prosecution to eliminate the possibility of suicide and leave only the possibility of murder. The book is replete with recitations of his role in solving the problem presented by the lack of physical evidence and records how he was able to gather the evidence which enabled the prosecutor to bring proceedings against the applicant.

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". 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]). 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 prosecu