Gordon Wood’s lawyers hope to prove malicious prosecution

It’s more than 20 years since Caroline Byrne plunged to her death at The Gap.

Former chauffeur Gordon Wood with girlfriend Caroline Byrne in 1995.

It was a grisly task for the NSW Police team sent to the base of a 30m cliff near Sydney Harbour’s south head to recover the body of a young woman, Caroline Byrne, in June 1995.

Byrne’s face was apparently unrecognisable. Her body was found wedged headfirst in craggy rocks below The Gap, a place popular with tourists but also known for suicides.

Police investigating the circumstances of Byrne’s death took no photographs during the recovery operation to mark the body’s precise location. They were perhaps too quick to accept the death as non-suspicious — but the oversight proved especially significant in failing to clear up later confusion about the landing spot.

The oversight was certainly a costly one for Gordon Wood, Byrne’s boyfriend, sentenced to 17 years’ jail for her murder in 2008, following an investigation with many twists and turns.

Suddenly released in 2012 when the NSW Criminal Court of Appeal ruled that crown prosecution evidence was deeply flawed, a conviction based on “beyond reasonable doubt” was not possible, and suicide could not be ruled out, Wood has been fighting ever since for restitution.

The saga of Caroline Byrne’s tragic end lives on, 27 years after it began, as Wood, formerly a chauffeur and personal assistant to flamboyant businessman Rene Rivkin, now seeks up to $20 million damages from the NSW government for lost income due to malicious prosecution and wrongful imprisonment.

There were many inconsistencies in Wood’s version of events immediately leading up to Byrne’s death that did not help his position. From early on, he was the chief suspect in a possible murder.

But more than anything it was the alleged landing spot of Byrne’s body combined with scientific evidence provided by a University of Sydney physics professor, Rod Cross, that fuelled the theory — eventually accepted by a jury — that Byrne did not jump but was deliberately thrown to her death by Wood, and possibly another man, from the edge of the cliff.

The language used by crown prosecutor Mark Tedeschi QC during Wood’s pre-trial committal hearing in 2007 was as graphic as it was forceful. “Gordon Wood possessed the strength to spear-throw Caroline Byrne to the place where her body was found,” he said.

In the NSW Supreme Court this week, Wood’s barrister, Bruce McClintock SC, has seized upon the prosecution’s reliance on Cross to argue the murder case against Wood was not only “flawed” but “ridiculous”.

To prove malicious prosecution, Wood’s barrister needs to claim the charges against Wood were not only pursued without reasonable cause but also with improper motive. The latter is difficult to prove because it challenges the intent of the prosecution.

McClintock has laid the blame for a miscarriage of justice squarely on police for allegedly “poisoning” the mind of Cross — to the point of negating him as an impartial witness. McClintock claims the lead investigator, Detective Inspector Paul Jacob, fed Cross the “false story” that Wood had asked a morgue attendant, after requesting to see her body: “Do you mind if I look at her tits?” If Cross did not have a negative perception of Wood’s character, it is argued he would after hearing these words.

McClintock has ridiculed the decision of police to rely on Cross in the first place because the associate professor has a degree in plasma physics, not biomechanics. In the past Cross had done some sports research and refereed papers on biomechanics, but McClintock’s point was that it hardly qualified him as a forensic expert on fall dynamics.

Cross wrote a book called Evidence for Murder: How Physics Convicted a Killer. While published after Wood’s conviction, even the Appeal Court said the book contained opinions outside Cross’s field. So did Cross try too hard to stick with his “throw” theory — based on the estimated trajectory of Byrne’s body from clifftop to bottom — to assist with the credibility of his book?

Wryly, McClintock put it this way in court, alleging Cross had a motive to see Wood convicted: “It wouldn’t have been much of a book, or its sales wouldn’t have been particularly great, if its title had been ... something like How Dodgy Data Failed to Convict an Innocent Man.”

Another who might have tried too hard, according to the Criminal Appeal Court’s unanimous ruling, was crown prosecutor Tedeschi. In the 2012 decision, Justice Peter McClennan alluded to Wood’s motive, as submitted by Tedeschi during the 2008 trial, that Byrne had potentially damaging information about Wood’s boss Rivkin. Tedeschi was referring to Rivkin’s windfall profit from insurance after a 1993 Christmas Eve fire at the Offset Alpine printing press he owned in Sydney. At $53 million, the ageing press was insured for more than three times the price Rivkin paid for it. The company’s share price surged after the fire.

Byrne was thinking of leaving Wood, at risk of blabbing about allegations the fire was deliberately lit, and Wood wanted this information suppressed, so the theory went. McClennan said the exploitation of “public rumour” and “use of mere innuendo” to compensate for inadequate evidence of motive was not consistent with the obligations of a prosecutor to press the crown case “to its legitimate strength” that should rely on credible evidence. McClennan also said Tedeschi had introduced “an invention of the prosecutor” in his closing address that was not supported by earlier evidence when Tedeschi said Wood used a “shot-put” action to propel Byrne’s body, possibly in an unconscious state, from the clifftop. Rhetorical questions — dubbed “50 killer questions” — were also raised but not covered during evidence.

All the speculation in the case against Wood falls down, in the end, because of conjecture over the landing position of the body.

When Cross was first asked to help police in their investigation, he accepted Byrne most likely committed suicide, based on information in front of him about the landing spot. He changed his mind after police decided their original landing site was wrong, and asked him to prepare a second report based on the revised spot.

Cross conducted tests using people slightly heavier than Byrne who were thrown into swimming pools. He concluded she could not have landed in the revised landing spot, further out on the cliff base, if she jumped. The launch point also supposedly ruled out a running jump — it was too small because of dense bush allowing only a 4m run-up. Ergo, Byrne’s body must have been thrown.

McClintock said this week that the “throw” theory was made more ridiculous by flawed evidence about local vegetation at the time of Byrne’s death that police gave Cross. An aerial photo, also later seen by the jury during Wood’s trial, was allegedly taken close to the time of the tragedy and therefore acceptable as representative of bushland near the cliff edge. The photo showed bush close to a safety rail and a small 4m clearing that Wood allegedly chose as his launch site for Byrne’s body. Alas, the photo was taken much later, in 2003, when the vegetation was possibly different. Furthermore, as McClintock noted, a police investigator knew about the discrepancy during the trial.

It is typical of such cases that grieving parents of the deceased person will search for answers, and perhaps jump to conclusions, especially when circumstances allow speculation. Police often want to help the grief-stricken gain closure. It is doubtful, for example, if murder allegations against an American, Gabe Watson, whose new wife Tina drowned in a diving accident off north Queensland in 2003, would have been pursued with as much vigour in Australia and the US without the persistence of the dead woman’s father, Tommy Thomas.

So, too, for the Byrne case. Her father, Tony Byrne, had a lot to tell police and none of it reflected well on Wood. In his statement, which formed part of the trial, Byrne said his daughter knew business secrets involving Wood. He said Wood worked as a chauffeur for Rivkin, even suggesting a homosexual relationship between them.

Rivkin liked to hang out with a group of young men, including Wood, at Joe’s Cafe in Kings Cross. He lavished some of them with expensive gifts.

Wood had recently returned from a trip with Rivkin to Geneva, where Rivkin had deposited Alpine Offset funds in a Swiss bank account for himself and others.

Tony Byrne related some of Wood’s behaviour on the night of Byrne’s death. Wood had said he last saw Caroline alive around lunchtime when she was at home in bed. Wood gave her a sleeping pill, Rohypnol, and left. Wood said he came home at 7 and fell asleep on the couch. He awoke at 11.30 and panicked, realising Caroline was not home. He drove to places the couple frequented before being led by “telepathic communication” to The Gap, where he spotted Caroline’s car. Two rock fishermen said they saw him shouting his girlfriend’s name.

The trial later heard Wood then called Tony Byrne and Caroline’s brother, Peter. He drove back to the city and returned with them to The Gap.

Peter would later claim it was too dark to see anything, but Wood allegedly saw something, possibly Caroline’s body, from the clifftop. The jury was later told that he also claimed to know what Caroline was wearing, even though he had last seen her in bed.

Wood’s whereabouts earlier in the day was another point of contention. He claimed he had chauffeured former Labor powerbroker and Rivkin friend Graham Richardson around lunchtime on Rivkin’s instructions. Richardson later disputed this on oath, saying he was not with Wood but lunching at the Hilton Hotel with rugby league executive Peter Moore.

The position of Justice McClellan and his Appeal Court colleagues Megan Latham and Stephen Rothman in 2012 was that Wood may have been lying about meeting Richardson, or mistaken. But the issue was of no consequence, despite claims by Tedeschi that Wood lied to create a false alibi. “What matters is whether he was with her and caused her death at 11.30pm,” McClellan said.

The question of “beyond reasonable doubt” remained paramount. McClellan accepted there was “force” in one submission from Tedeschi that the only way Wood could know what Caroline was wearing when she died was if she had been with him during the day, not groggy under the sheets.

According to Wood, Caroline had a limited wardrobe, a claim disputed by the prosecution and others, given she was a model and loved clothes. Wood’s claim he gave Caroline a Rohypnol tablet was also unable to be confirmed by an autopsy showing no trace of the drug in her bloodstream, but some in her urine.

For McClellan, doubts about Wood’s credibility boiled down to this: “I accept that there are matters which are not adequately resolved, and it may be that the applicant (Wood) fabricated this sequence of events, but I am not persuaded this issue is of any particular significance to the prosecution case.”

That Wood was wrongfully imprisoned is hardly in dispute: the larger test is whether he can persuade another judge, Elizabeth Fullerton, that he was subjected to malicious prosecution.

A battalion of listeners will be keen to pounce on the nuances when Wood gives sworn evidence for the first time on ­Monday.