Gordon Wood’s original murder conviction was not a safe verdict. The conflation of circumstantial evidence and conjecture that was the prosecution case could never amount to proof beyond reasonable doubt. The Court of Criminal Appeal clearly stated this when it delivered an acquittal, rather than order a retrial. Further, it strongly criticized the prosecutor, Mark Tedeschi’s handling of the case, implying that he had not presented the evidence honestly. By not appealing, the DPP is essentially agreeing with at least the first part of this view.
Tony Byrne, Caroline Byrne’s father does not agree. Now he wants to bring a private, High Court challenge to the acquittal.
It should be his legal right to do so and it is interesting that such a private challenge has never previously occurred. But it should not be at public expense and Tony Byrne should have to pay Gordon Wood’s (or the Crown’s) legal fees if his challenge fails.
That may seem an onerous requirement on a father whose daughter has died in at the very least, suspicious circumstances, however people with far more legal knowledge than Tony Byrne have examined the evidence in the case and determined that a properly considered verdict of guilty of murder beyond all reasonable doubt is extremely unlikely.
Even if Tony Byrne does win the appeal, Gordon Wood will almost certainly seek a judge only trial, in which he would be highly unlikely to be convicted.
So what would be the point of all this? For Tony Byrne to make it his life’s mission to pursue Gordon Wood? Well, do so if you can afford it, but the taxpayer shouldn’t have to bear the cost.
I feel a lot of sympathy for Tony Byrne. There’s much that doesn’t smell right about his daughter’s death and Gordon Wood’s involvement. Looking at the reported facts of the case, many people get the sense that even if he wasn’t directly involved in Caroline Byrne’s death, there is something he’s hiding. This probably gives Tony Byrne the feeling: “I know he’s involved somehow and I’m going to keep after him until I find out”.
But that’s not equivalent to sufficient evidence to overturn a murder acquittal and order a retrial. If such evidence is ever produced, the state should fund an appeal. The danger inherent in appealing now, without such evidence and almost certainly losing, is that it lessens the avenues for a future retrial if any fresh evidence emerges.
Additionally, citizens who have already borne the considerable cost and stress of being acquitted of serious charges should not have to bear the burden of further defending themselves against private legal pursuit if such pursuit is rejected by a court. Tony Byrne should in fact have to indemnify Gordon Wood against his legal costs before such a private appeal is allowed.
If you find that distasteful and somehow a denial of justice for Tony Byrne, that is probably because you find Gordon Wood distasteful and suspect him of some involvement, like I do. But that is not how the law should work: it should apply the presumption of innocence after such an acquittal.
Consider a person who was acquitted of murder in a case where the police were found to have withheld or even fabricated evidence. Suppose the relatives of the victim refused to accept the verdict and wanted to launch a private appeal. They should have to lodge a bond covering the accused’s projected, reasonable expenses.
Gordon Wood should have the same right. Even if many people find him dodgy, that subjectivity is insufficient to alter the application of the law.
Lastly, we should not go down the American path, where a person acquitted of murder can still lose a civil suit for wrongful death and have millions of dollars in damages awarded against them, as in the OJ Simpson case.
In this particular case, Simpson probably did it and got off the criminal charge because of the quality of the legal team he could afford, so we don’t feel much sympathy. But the burden of proof is vastly different in civil trials: it’s on the balance of probability, rather than beyond reasonable doubt. Wealthy litigants (or poor litigants with wealthy lawyers on a percentage) can use such trials to harass counterparties into a settlement or bankrupt them, even if they are innocent.
When there has already been an acquittal in a criminal trial, the law should not allow a civil suit based on substantially the same facts. In effect, this amounts to double jeopardy.
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