New South Wales Bar Association v Tedeschi (No 2) - [2003] NSWADT 201

No judgment structure available for this case.

CITATION: New South Wales Bar Association v Tedeschi (No 2) [2003] NSWADT 201

DIVISION: Legal Services Division

PARTIES: APPLICANT
Council of the New South Wales Bar Association
RESPONDENT
Mark Alfred Guido Tedeschi

FILE NUMBER: 012040

HEARING DATES: 10-12/03/2003, 31/03/2003, 04/04/2003

SUBMISSIONS CLOSED: 04/04/2003

DATE OF DECISION:
04/30/2003

BEFORE: Robberds LP - Judicial Member; Bennett AC SC- Judicial Member; Elliott K - Member

APPLICATION: Professional Misconduct - breach of duty to act fairly and impartially

MATTER FOR DECISION: Principal matter

LEGISLATION CITED: Evidence Act 1995
Legal Profession Act 1987

CASES CITED: Richardson v The Queen (1974) 131 CLR 116
Whitehorn v The Queen (1983) 152 CLR 657
King v The Queen (1986) 161 CLR 423
Ziems v The Prothonotary of the Supreme Court of New South Wales (1957) 97 CLR 279
Apostolides v The Queen (1984) 154 CLR 563
Qidwai v Brown [1984] 1 NSWLR 100
Pillai v Messiter (No 2) (1989) 16 nswlr 197
Allinson v General Medical Council [1894] 1 QB 750
Crispin and the Legal Profession Act (LPDT, 15 April 1992)
Prothonotary of the Supreme Court of New South Wales v Costello [1984] 3 NSWLR 201

REPRESENTATION: APPLICANT
P R Garling SC & P R Boulten, barrister
RESPONDENT
P Le G Brereton SC & D Perrignon, barrister

ORDERS: 1 The complaint be dismissed; 2 The Tribunal reserves for further consideration the question of costs and the question of the inclusion in its decision of 30 APril 2003 of the name of the barrister in substitution for "FC"

1 On 17 March 1993 the Council of the New South Wales Bar Association (the Bar Council) filed in the Legal Profession Disciplinary Tribunal a complaint, the first paragraph of which stated that the Bar Council "refers to the Legal Profession Disciplinary Tribunal a complaint by the Legal Aid Commission against [FC] ("the barrister")."

2 On 2 October 2001 the New South Wales Court of Appeal made a declaration that this Tribunal had jurisdiction to hear and determine the complaint.

3 The complaint seeks a finding against the barrister of professional misconduct. The grounds of complaint, the particulars contained in the complaint and the terms of the barrister’s amended reply are set out in the schedule to this decision.

4 The complaint relates to the barrister’s conduct when he appeared as the Crown Prosecutor in the trial of Mr Timothy Edward Anderson which took place in the Supreme Court of New South Wales before Grove J and a jury between 15 August and 25 October 1990.

5 The first count in the indictment presented against Mr Anderson alleged that he attempted to murder Junius Jayawardene on 12 February 1978. Mr Jayawardene was then the President of Sri Lanka. The Crown case was that Mr Anderson was an accessory before the fact to the attempted murder.

6 The second, third and fourth counts in the indictment charged Mr Anderson with the murder of two Council garbage collectors and a policeman.

7 Early on the morning of 13 February 1978 a bomb, which the Crown alleged had been planted in a garbage bin outside the Hilton Hotel in George Street Sydney by Evan Dunstan Pederick exploded killing the two Council garbage collectors who were emptying the bin and the policeman who was on duty outside the hotel.

8 Mr Anderson was acquitted of the attempted murder count but convicted on the three counts of murder. He subsequently appealed to the Court of Criminal Appeal. That Court allowed the appeal, quashed the convictions and directed a judgment and verdict of acquittal to be entered.

9 The evidence relied upon by the Bar Council comprised:

(b) a transcript of the barrister’s final address and the summing up of Grove J in the trial;

(c) the written submissions made on behalf of Mr Anderson in the Court of Criminal Appeal;

(d) the Crown’s submissions in the appeal proceedings;

(e) the transcript of the appeal proceedings;

(f) the judgment of the Court of Criminal Appeal;

(g) copies of letters written by the barrister to the New South Wales Bar Association in response to letters from the Association detailing complaints against him in respect of his conduct of the Anderson trial and seeking information from him;

(h) the transcript of the opening address of Mr Hidden QC at the trial; and

(i) an affidavit sworn by Mr Tom Molomby SC who as junior counsel appeared with Mr Hidden QC for Mr Anderson during the trial.

10 The evidence relied upon by the barrister comprised two affidavits sworn by him and affidavits sworn by Mr Ian Scott Lloyd QC and Mr Michael Alan Viney QC.

11 Each of Mr Molomby, Mr Lloyd, Mr Viney and the barrister gave evidence before the Tribunal.

12 The barrister and Mr Molomby impressed the Tribunal as truthful witnesses who did their best to recall events which occurred in 1990. The Tribunal accepts each of them as a witness of truth. There was no issue as to the honesty of Mr Lloyd or Mr Viney who gave evidence as expert witnesses.

13 In May 1989 police arrested and charged Mr Anderson with three counts of murder arising out of the above explosion after the notorious criminal and jail escapee Raymond Denning told police that years earlier Mr Anderson had confessed his involvement in the bombing when both of them were in the same jail.

14 A few days after Mr Anderson’s arrest, Mr Pederick went to a police station in Brisbane and confessed to having set the bomb which exploded.

15 Mr Pederick was brought to trial in September 1989 and he entered a plea before the jury to manslaughter and conspiring with Mr Anderson to murder Morarji Desai. Mr Desai was at the time the Indian Prime Minister. The barrister appeared as Crown Prosecutor at that trial but did not accept the plea to manslaughter and the murder charges were placed in the hands of the jury. Mr Pederick was convicted of the murders and sentenced to thirteen years imprisonment with a non-parole period of eight years. This relatively light sentence was imposed for a number of reasons: Mr Pederick’s youth and demonstrated remorse; his co-operation with the authorities; his willingness to give evidence against Mr Anderson and because the trial judge was of the view that Mr Pederick’s will had been overborne by Mr Anderson’s strong and pervasive influence. In the Anderson trial Mr Pederick became the principal and most important witness for the Crown.

16 At the Anderson trial, Mr Pederick gave evidence that he and Mr Anderson had agreed that he would kill Morarji Desai when Mr Desai arrived at the Hilton Hotel on 12 February 1978 to attend a Commonwealth Heads of Government meeting hosted by the Australian Prime Minister, Mr Malcolm Fraser. He gave evidence that in the early hours of 12 February 1978 he planted the bomb, which he had made, in a garbage bin outside the George Street entrance of the Hilton Hotel. His evidence was to the effect that he and Mr Anderson had agreed that later in the day he would position himself in George Street and would set off a device which would explode the bomb when Mr Desai arrived at the Hotel.

17 Mr Pederick gave evidence that during the early afternoon of Sunday 12 February 1978 at about 2.30 pm, he saw a dignitary arrive at the George Street entrance of the Hilton Hotel; he thought this dignitary was Mr Desai; he moved the toggles on a device which he carried with the object of the exploding the bomb but the bomb did not explode.

18 The Crown case opened to the jury was that although Mr Pederick thought the person that he attempted to kill was the Indian Prime Minister Morarji Desai, in fact the person that he saw alight from the car arriving at the Hotel and whom he attempted to kill, was in fact Junius Jayawardene, the President of Sri Lanka. (This came to be called the Jayawardene arrival theory.)

19 In the Crown’s closing address the case put to the jury was that Mr Pederick attempted to kill Mr Desai as he was leaving the hotel. (This came to be called the Desai departure theory.)

20 Part of Mr Anderson’s defence was that he denied that he agreed with Mr Pederick that Mr Pederick would kill Mr Desai; Mr Pederick was not to be believed; he was telling a fictional tale from beginning to end, not only about Mr Anderson’s involvement, but also about his own and that Mr Pederick had not attempted to murder either Mr Desai or Mr Jayawardene.

21 When Mr Pederick made his confession to the police in May 1989 he told them that when he saw Mr Desai arrive at the Hilton Hotel he attempted to detonate the bomb. Enquiries made by the police led them to conclude that Mr Pederick was mistaken and that the person he saw alighting from the car and whom he attempted to kill was in fact the Sri Lankan President Junius Jayawardene. These facts were known to Mr Anderson’s lawyers before the Anderson trial commenced.

22 Mr Pederick was the first witness called by the Crown. He commenced his evidence on the second day of the trial, 16 August 1990 and completed his evidence on the fourteenth day of the trial, 3 September 1990.

23 Mr Pederick’s cross-examination commenced on the fourth day of the trial, 20 August 1990 and continued each day of the trial thereafter until and including the fourteenth day, 3 September 1990.

24 On 3 September 1990 a Superintendent McConville was called by the Crown. He had been assigned as a VIP protection officer to the President of Sri Lanka during his attendance in Australia for the CHOGRM conference in February 1978. In chief he gave evidence that Mr Jayawardene arrived at the George Street entrance of the Hotel at approximately 3pm where he was then greeted by the Prime Minister Mr Fraser and Mrs Fraser.

25 During cross-examination Sergeant McConville was shown exhibit AW which was a log sheet described as an operation head watch. Senior Counsel for Mr Anderson, Mr Hidden QC (as he then was) drew Superintendent McConville’s attention to two entries in that document which raised questions whether Mr Jayawardene had arrived in Sydney on a Singapore Airlines flight at 7.35am and was proposing to have lunch at the coffee bar in the Hilton Hotel at 11.30am. In other words the cross-examination squarely raised the question whether Mr Jayawardene had arrived at the Hotel on the morning of 12 February 1978 and thus he could not have been the person that Mr Pederick alleged he saw when he allegedly attempted to detonate the bomb. (Exhibit C2, pp 606-7.)

26 The Crown authorities knew and led evidence that Mr Desai arrived at the Pitt Street entrance of the Hilton Hotel and they therefore knew that the person that Mr Pederick said that he saw arriving at the George Street entrance was not Mr Desai.

27 In order to resolve the doubts concerning the time of Mr Jayawardene’s arrival, the barrister arranged for his instructing solicitor, Mr Love, to telephone Mr Jayawardene’s office in Colombo and request a copy of his diary page for 12 February 1978 to be faxed to Sydney. When it arrived it unequivocally showed that Mr Jayawardene had arrived in Sydney in the morning. (Exhibit O, para 18.)

28 It appears that the copy of the diary page together with a covering letter from Mr Jayawardene was received by the barrister on 10 September 1990. (Exhibit Q, tab 14.)

29 It appears that on 6 September the Crown received a document from the Sydney Airport Authority which showed that the Singapore Airlines plane on which Mr Jayawardene travelled, arrived at Sydney Airport at 7.35am. (Exhibit C2, page 636; exhibit Q, tab 15.)

30 Immediately after the entry in Mr Jayawardene’s diary and the document from the Sydney Airport Authority, came into the possession of the barrister, copies were provided to the defence (see page 337 of exhibit E).

31 On apparently 12 September 1990 those documents were tendered through Mr Love a solicitor instructing the barrister and became exhibits BE and BF. (Exhibit C2, p 636.)

32 In paragraph 18 of his affidavit sworn 6 May 2002, exhibit O in these proceedings, the barrister said:

I tendered the diary entry from Jayawardene and also a flight manifest from the Sydney Airport which together conclusively proved that Jayawardene had arrived in the morning.

33 These documents also showed that the Crown’s theory as to whom Mr Pederick had seen when he attempted to detonate the bomb had been wrong.

34 During evidence in chief, Mr Pederick gave evidence that he thought that the dignitary that he saw arrive and whom he attempted to kill was Mr Desai.

35 During cross-examination Mr Pederick was shown a video clip exhibit 3 and gave the following evidence in respect of it:

Q That is what you saw, you tell us, on that day? A Yes. Well, I’m told it was Mr Jayawardene I saw, yes. (Exhibit C1, p 203.)

36 On 13 September 1990, the twenty second day of the trial, the barrister sought leave to amend the first count of the indictment so as to delete the words "Junius Jayawardene" and substitute the words "a person unknown."

37 The transcript records that the barrister submitted:

By way of particulars it has been alleged that that person was in fact not Mr Desai but Mr Jayawardene and it now appears that it could not have been Mr Jayawardene and the Crown wishes to allege that it was some other person, who the Crown cannot really at this stage identify.

38 The application was opposed by Mr Hidden who was not called upon by Grove J. (Exhibit C2, pp 647-9.)

39 His Honour refused the application and in delivering his judgment said:

A great deal of cross-examination was directed towards Mr Pederick’s assertion that he had mistaken Mr Jayawardene for his intended target, Mr Desai. It is implicit in the Crown’s present application that the state of the evidence is such as to make it relatively plain that if Mr Pederick was present he was mistaken not only in his identification of Mr Desai but his subsequent identification that the person must have been Mr Jayawardene.

It is conceded by the Crown that if I were to grant the present application it would be necessary to do it on terms that enabled the representatives of the accused to have returned to the witness box any of the previous witnesses for further cross examination.... Whilst it is perceptible that a jury may distinguish in its findings between the first count on the one hand and the second, third and fourth counts on the other, the reality is that the essence of the Crown’s allegation is that the accused was an accessory before the fact to the killings which have, for convenience been referred to as the Hilton bombing. A refusal of this application to amend will not in my view prevent the true issue being litigated. (Exhibit Q, tab 42.)

40 During the argument in the Court of Criminal Appeal, Gleeson CJ asked the barrister on which day it became apparent to him that he was going to put the case to the jury on the basis that when Mr Pederick tried to explode the device, the person he saw was Mr Desai in the act of departing.

41 The barrister gave the following response:

The Crown then embarked upon a course of calling a number of witnesses, being O’Toole, Goffe, Cuthbertson, Selth and Evans and explored with them a number of scenarios. In relation to arrivals and a departure, all I would have to say is that there were a number of scenarios in relation to which evidence was sought to be elicited. However, a perusal of those witnesses makes it abundantly clear that of all those scenarios the one that the Crown is really relying upon was the Desai departure scenario. It is true that there were other questions asked about whether there were any other people who were arriving in Indian style clothing.

Gleeson CJ: Do you mean that there was a period extending over a number of days at the trial after which it had become obvious that the Jayawardene arrival theory could not work and the Crown was exploring what the alternative possibilities were?

[The barrister]: Yes, I would have to say that is the case. However I would go further than that and say even during that exploration process it was abundantly clear that the only scenario that possibly fitted the description was the Desai departure theory and of all the evidence most of it was on the Desai departure theory.

Gleeson CJ: On what day of the trial did that become abundantly clear to you?

[The barrister]: It certainly became abundantly clear to me by the time I tendered exhibit CA1, 2 and 3.

Gleeson CJ: Could you put a number on that?

[The barrister]: That is 21 September.

Gleeson CJ: What was the number of the day on which it was announced that that was the basis on which the Crown was going to conduct the case?

[The barrister]: There was no formal announcement that the Crown now says it relies on the Desai departure theory because it was not an essential basis of the liability of the accused. It was just another part of the evidence, albeit an important part of the evidence, to do with Pederick’s credibility. But as my friend has said, it related essentially to the credibility of Mr Pederick and in my submission it was not encumbent (sic) upon the Crown to formally get up and say: We have abandoned the Jayawardene theory; we now embark upon the Desai departure theory, because as your Honour has noted it was a very different situation to the situation in King v The Queen where the change affected the liability of the accused for the crime he was convicted of.

Here the appellant’s liability in no sense depended upon the identity of the person who was there. It was a detail of the evidence where the Crown’s initial evidence was shown to be in error. The Crown was then pointing to some other evidence to explain Evan Pederick’s evidence.

Finlay J: The act you were relying upon here was placing the gelignite and the detonator in the bin?

[The barrister]: Yes.

Gleeson CJ: For what purpose?

[The barrister]: For the purpose of killing someone.

Gleeson CJ: Killing whom?

[The barrister]: Killing Mr Desai. The point where it must have become manifestly obvious that the Crown was relying on the Desai departure theory was when I tendered exhibit CA1,2 and 3. They are three photographs showing Mr Fraser departing, they are three of the Cuthbertson photographs and there is a man who can be seen on the opposite side of the road in a rather strange stance, particularly exhibit CA2.

I specifically invited the jury to compare the man on the opposite side of the road with the photograph admitted to be a photograph of Evan Pederick, exhibit R1, a photograph where some surveillance police had taken photographs at a retreat later on that year and by then it must have been apparent, in the Crown’s submission, that the Crown was relying upon the Desai departure theory, photograph CA1, 2 and 3 having been taken within minutes of Mr Desai’s departure. [Ex E, pp 337 - 339]

42 Exhibit CA1, 2 and 3 was tendered by the barrister during the evidence in chief of Mr Cuthbertson on 21 September 1990, the twenty eighth day of the trial. When tendered the transcript (exhibit C2 paginated page 664 in these proceedings) records the barrister as saying:

Might I invite the jury at this stage to view the photographs and when viewing the three enlargements, might I through your Honour invite the jury to compare the man on the western side of George Street with the photograph of Evan Pederick which is exhibit R1 which is one of the photographs taken at the camp at Otford in May 1978.

43 The barrister’s actions after he concluded that the Jayawardene arrival theory was incorrect, are described in paragraphs 22 - 24 of his affidavit sworn 6 May 2002, exhibit O. Those three paragraphs are in the following terms:

23. I had to decide how I was going to deal with this new evidence. I found myself at that stage of the trial in a unique position. There was an abundance of evidence to support Pederick. He was serving a lengthy sentence on the basis of his own confession. There was no evidence that he was insane. The Desai departure theory seemed to me to be a logical explanation, in fact the only logical explanation, for the evidence, believing as I did in the substantial truth of Pederick’s evidence. I considered that I was in possession of credible evidence that could explain the discrepancies that had emerged, and that I was under a positive obligation to call that evidence. To have not called it would have been a serious failure of my duty to present the Crown case fully and firmly on behalf of the community.

24. I then proceeded to call 5 additional witnesses and tender 12 additional photographs and a number of other documents in the Crown case to prove the Desai departure theory. The only relevance of this further evidence was to prove the Desai departure theory, and, in my opinion then and now, no one in the courtroom was in any doubt that that was why I was eliciting the further material. However, I do not recall whether or not I specifically told Peter Hidden QC or someone else on his team that I was embarking on the Desai departure theory, and there is nothing on the transcript in the Crown case formally announcing that change. It was just apparent to me at the time that everyone in the Courtroom was aware that that was the reason I was calling the further evidence. Hidden allowed all this evidence of Desai’s departure to be led in the Crown case without any objection. The only possible relevance of this evidence was to explain Pederick’s account of what had happened when he attempted to detonate the bomb.

44 Because this question was considered at some length during the hearing in this Tribunal, the Tribunal proposes to review the more important evidence on it.

45 On 14 September 1990, the twenty third day of the trial, Detective Sergeant O’Toole was recalled by the barrister to give further evidence. He had previously given evidence that Mr Desai had arrived at the Pitt Street entrance of the Hilton Hotel at about 4.26pm on Sunday 12 February 1978.

46 In his further evidence given on 14 September 1990,Sergeant O’Toole said that Mr Desai left the Hilton Hotel between 5.20 and 5.25pm that afternoon; that he was with Mr Desai when he left; and that Mr Desai left for the purpose of attending a reception at Kirribilli House that evening. (Exhibit C2, p 651.)

47 Sergeant O’Toole also identified two photographs as having been taken outside the George Street entrance to the Hotel prior to Mr Desai travelling to Kirribilli House that afternoon. These photographs became exhibit BR1 and 2. They showed Mr Desai leaving the Hotel. (Exhibit C2, pp 651-2.)

48 On 18 September 1990, the 25^th day of the trial, Andrew Bernham Goffe gave evidence that on a Sunday in early 1978 he was in the vicinity of the Hilton Hotel "sort of early to mid afternoon, 2 o’clockish or something." He took a number of photographs and exhibit BR1 and 2 were photograph prints made from his slides. He remained outside the Hotel for between half an hour and an hour and he saw various dignitaries leaving the George Street entrance to the Hotel. (Exhibit S; exhibit C2, p 656.)

49 In cross-examination he was questioned as to when he was first asked to give evidence in the trial. He said that it was intimated to him the previous week that he would probably be asked to give evidence. (Exhibit C2, p 657.)

50 In further cross-examination he gave evidence from which it could be concluded that in 1979 he wrote on one of the slides from which one of the photographs exhibit BR1 and 2 was produced "3\78 Mr Desai outside Sydney hotel Regional Commonwealth meeting." (Exhibit C2, p 658.)

51 In further cross-examination he said that he saw Mr Desai on this occasion; that he saw a number of dignitaries leaving the Hotel at the same time; and that he had not made a written statement to the police about what he saw. (Exhibit C2, p 659.)

52 On 21 September 1990, the twenty eighth day of the trial Anthony John Cuthbertson was called by the Crown. He gave evidence that on Sunday 12 February 1978 he arrived outside the George Street entrance to the Hilton Hotel at approximately 2pm. At the time he was a particularly keen amateur photographer. Upon his arrival he commenced to take photographs and continued to do so until approximately 5 to 5.30pm. (Exhibit S; exhibit C2, p 661.)

53 He gave evidence that the lighting in the last two strips of negatives eleven and twelve was quite a bit later than the other negatives because the lighting was somewhat subdued owing to the setting of the sun. One of the photographs in strip eleven showed Mr Fraser standing on George Street outside the Hotel. Mr Cuthbertson recalled that event and said that Mr Fraser was about to get into a car and that he had stood on the footpath for maybe a minute or two. The very last photograph which he took showed the Indian Prime Minister Mr Desai on the footpath in George Street and Mr Cuthbertson recalled that event. He said that he couldn’t recall whether Mr Desai was actually standing on the footpath but he obviously had to go to the footpath to get into his car. He said that it would not have been very long maybe a minute or two between the time when he photographed Mr Fraser on the footpath and when he photographed Mr Desai on the footpath. Three enlargements of his photographs were tendered as exhibit CA1 - 3. (Exhibit C2, p 663.)

54 When exhibit CA 1 - 3 was tendered, the barrister invited the jury to compare the person shown in the photographs on the western side of George Street with the photograph of Mr Pederick which was exhibit R 1 (see paragraph 42 above). (Exhibit C2, p 664.)

55 On the same day and after Mr Cuthbertson had completed his evidence, the Crown called Donald Victor Selth. In 1978 he acted as the Deputy Head of the Task Force planning and organising the CHOGRM Conference. (Exhibit C2, p 674.)

56 He gave evidence that a cocktail party was held at Kirribilli House at 5.30pm for the heads of the delegations and that prior to the cocktail party bilateral talks between Mr Fraser and Mr Desai took place at Kirribilli House beginning at about 5.05pm. (Exhibit C2, pp 675-6.)

57 He gave evidence that Mr Fraser would have left the Hilton Hotel to go to Kirribilli House shortly before Mr Desai and that he guessed that it was at about a quarter to five or thereabouts. He said he was present when they left and that Mr Fraser could have left a minute before Mr Desai but it was probably two or three minutes. (Exhibit C2, p 676.)

58 He was shown exhibit BR1 and 2 and he recognised the scene in those photographs. He recognised Mr Desai and his daughter in law walking across the red carpet towards their car and he (Mr Selth) was standing at the door of the car. He said that Mr Desai would have been standing on the footpath perhaps waiting for a car prior to his getting into the car. (Exhibit C2, p 676.)

59 He was cross-examined and one of the matters upon which he was cross-examined was exhibit AW which contained entries suggesting that Mr Fraser left the Hotel for Kirribilli at eighteen minutes past five. (Exhibit C2, p 681.)

60 On Monday 24 September 1990, the twenty ninth day of the trial, David Sidney Evans was called by the Crown. He gave evidence that he was the Commonwealth Co-ordinator of Security at the Commonwealth Heads of Government Regional Meeting in Sydney in February 1978. He gave evidence that Mr Desai left the Hotel for the purpose of attending a reception at Kirribilli House and that it was also intended that Mr Desai would have a one-on-one conversation with Mr Fraser before the reception. He could not recall the exact time that Mr Fraser left the Hotel other than it was about 5pm or a quarter to five. (Exhibit S; exhibit C2, pp 685-6.)

61 He was shown exhibit BR1 and 2 and recognised the scene as Mr Desai leaving the Hotel sometime on the Sunday. (Exhibit C2, p 686.)

62 In cross-examination he gave evidence that he was first spoken to by a member of the prosecution legal team concerning the matter two to three weeks ago. (Exhibit C2, p 689.)

The Bar Council’s submissions

63 In paragraph 65 of its final written submissions, the Bar Council referred the Tribunal to evidence given by each of the above five witnesses, which it submitted related to matters other than the Desai departure theory. In paragraph 66 it submitted that the significance of this review was that it could not fairly be argued that these witnesses only went to the Desai departure theory and that the defence must have realised this.

Mr Molomby’s evidence

64 Part of Mr Molomby’s affidavit sworn 21 June 2002, exhibit H in these proceedings, was in the following terms:

3. Throughout the course of the trial, the defence demonstrated that Mr Pederick’s evidence about many aspects of the events in the street that day was wrong.

4. There was evidence in the trial that a demonstration occurred outside the hotel in George Street from about 1.00/1.30pm. This demonstration was the reason for re-routing Mr Desai’s arrival to the Pitt Street entrance.

5. The defence case as to the events that occurred in George Street at the critical time (i.e. around 2.30/3.00 pm) was that Mr Jayawardene did not arrive at that time but early in the morning; that no other Head of Government arrived in George Street that afternoon; no other relevant person arrived in George Street that afternoon; and that there was an obvious demonstration in George Street that afternoon for some hours. We were apprehensive that the prosecution might attempt to change their case to circumvent the problem created by Mr Jayawardene’s arrival in the morning by "replacing him" with someone else, just as, earlier in the history of the case, Mr Jayawardene had replaced Mr Desai after it was discovered that the latter had not arrived in George Street.

6. The defence also attempted to prove, I think successfully, that Mr Fraser did not greet anyone in George Street that afternoon. He testified that the only people that he welcomed were visiting Heads of Government and that he only welcomed them upon their initial arrival. It was also established in evidence that Mr Fraser was occupied with a press conference inside the hotel around the time of the alleged 3.00 pm arrival of Mr Jayawardene.

7. Consequently, the defence focused on establishing not only that Mr Jayawardene had not arrived in the afternoon but that no-one else had either. We were apprehensive that the Crown might try to alter their case so as to replace the arrival of Mr Jayawardene with the arrival of somebody else. Our apprehension in this regard was reinforced by [the barrister’s] application to amend the attempted murder charge to "person unknown". When this application was refused, we did not think that the Crown would abandon this way of trying to save the credibility of Mr Pederick, we merely thought that the Crown would have to be resigned to a verdict of "not guilty" on the attempted murder charge.

8. Towards the end of the prosecution case, as I recall, even from the last witness, evidence was led about the presence of other people of Indian appearance near the Hilton hotel in George Street around the time of Mr Desai’s arrival. I think there were references to such people also in cross-examination of witnesses called by the defence. I understood this evidence to be an attempt by the prosecution to establish that someone else was in George Street at the relevant time, who could have been mistaken for Mr Desai. I see now in retrospect how [the barrister] in some respects was preparing the ground for the "Desai departure theory". At no time prior to the prosecutor’s address to the jury, did I think that the Crown’s case was, or might be, that Mr Pederick had mistaken the departure of Mr Desai for his arrival.

9. The position that I thought that the defence was in, or which could comfortably be achieved, was represented by Hidden QC’s opening speech to our case. I substantially wrote that opening, which had been thoroughly discussed among us all. Hidden QC’s opening speech suggested to the jury that the Crown had been desperately trying to find evidence to rehabilitate Mr Pederick, and that the suggestion made by [the barrister] that the figure in the photograph taken late on the Sunday afternoon by Mr Cuthbertson was the last of a long line of "spot Pederick" competitions.

10. As to the discussion of recalling Pederick, my recollection is not strong. Hidden QC and I discussed it during an adjournment and we decided that we saw no point in Pederick being recalled. At that time, [the barrister] did not indicate why he was offering to recall Mr Pederick. When [the barrister] raised the possibility of recalling Mr Pederick, I am certain that I did not then understand the way in which the prosecution case was in fact going to be left to the jury. Hidden QC and I could not think of anything else that the defence needed to suggest to Mr Pederick. Hence, [the barrister] was informed that the defence did not require Mr Pederick to be recalled.

65 In cross-examination before the Tribunal Mr Molomby gave evidence to the effect that before the Crown case commenced, the defence had in its armoury information which would destroy the Jayawardene arrival theory. He also gave evidence to the effect that once that information was disclosed he knew that the Crown case could be patched up by substituting someone else for Mr Jayawardene and Mr Pederick would have just the same explanation as he had already given. He said that the defence never thought that the mistake of Mr Desai for Mr Jayawardene was something they could use very much against Mr Pederick (T31/32).

66 He gave evidence that from the time that the application to amend the first count was rejected, it was his view that the attempted murder charge was doomed (T34).

67 When it was suggested that the reason why certain questions were asked of Sergeant O’Toole in cross-examination was because the defence did not want to have "a small brown man" on George Street on Sunday afternoon, Mr Molomby replied: "We didn’t want to have a small brown man arriving in George Street on Sunday afternoon" (T38).

68 Mr Molomby was asked what did he think at the time that Mr Goffe was giving his evidence, was the relevance of that evidence to the issues in the trial. He replied that he could not recall but thought that he knew what his general attitude was to this evidence and other similar evidence. He gave evidence to the effect that the defence had done an enormous quantity of research as a result of which they knew very well what happened in George Street that day as documented in photographs. They knew from that research that Mr Desai had been in George Street late that afternoon. The evidence called by the Crown was thus not a surprise to the defence (T42).

69 He gave evidence that in the re-examination of Mr Pederick an exercise started of tendering photographs in what seemed to the defence a desperate attempt to somehow be able to create some sort of semblance of believability in a proposition that some shadowy figure lurking somewhere might be Mr Pederick. This was referred to in the defence opening as the spot Pederick competition. The defence never had any doubt from the time of the application to amend the attempted murder charge that they knew what the prosecution case was. The prosecution case was called amongst the defence team, "another stunt double" ... an attempt to find somebody else just as Mr Jayawardene had replaced Mr Desai, an attempt to find somebody else to replace Mr Jayawardene.

We were confident that the case was the stunt double that was signalled behind the application to amend the indictment that some other small brown man arrived. And indeed that was reinforced by the fact that questions were asked of people and I think you pointed me just recently to some asked of Mr O’Toole that I would have put into this category, questions were asked of people, it seemed to us in a sort of desperate attempt, to try to get some evidence of anybody in Indian garb lurking around who could then be said inferentially perhaps to have just got out of a car, who might have been mistaken by Pederick because after all it is a place where people are dropped off at that particular apron in front of the Hilton there. ...

So we saw this as a desperate attempt to garner some evidence of some person appropriately dressed who could be used as a stunt double to replace Desai. We never thought that we were not understanding their case and so we never tried to probe between the lines as various evidence was tendered and think well, what are they getting at here. We thought we knew. We thought we knew what the case was, all through." (T43/44)

70 Mr Molomby was cross-examined in relation to the evidence given by Mr Cuthbertson. His evidence was to the effect that it never occurred to him that during that evidence there was a possible theory of the Crown case emerging (T50). He said that it certainly occurred to the defence that the suggestion was going to be made that Mr Pederick was there in the background at the time of Mr Fraser departing. But this was seen by the defence as a continuation of the desperate efforts which had begun in the re-examination of Mr Pederick to prove, contrary to the defence case, that he was somewhere at sometime in George Street. The defence saw this evidence focussed on not proving anything which Mr Pederick saw, but the mere fact that he was there, because the defence attack had been that he was not there (T51).

71 Mr Molomby was questioned about the photographs exhibit CA1 - 3 and gave evidence to the effect that the defence saw the whole issue as being about Mr Pederick’ s presence in George Street, not what he saw at the time when Mr Fraser and Mr Desai were departing (T60).

72 In re-examination Mr Molomby was asked whether it was ever part of his state of mind when the evidence was led that Mr Desai was departing the Hotel at some time after 5 pm on 12 February 1978, that that evidence would fit within the possibility of which he had already given evidence namely of the possibility of the Crown substituting another person for Jayawardene. His answer was "Certainly not." (T95).

73 In explanation of that answer, Mr Molomby said that an important part of the defence case which could only be proved with the defence evidence, was to show that nobody arrived at the George Street entrance of the Hotel in the afternoon (T98). He said that was the focus of a very large number of witnesses in the defence case and they thought that by leading that evidence at that time they were addressing the issue in the case, which was somebody arriving in George Street and being welcomed and going into the Hilton Hotel. "We were throughout thinking of an arrival. We said so in the opening of our case in quite clear terms." (The Tribunal notes here that Mr Hidden’s opening supports this evidence. See exhibit N, transcript page 1274 especially the passage which records Mr Hidden saying: "we will show you what happened in relation to the arrival of every head of Government at the Hilton Hotel over that weekend and by doing so we will prove that none of them arrived at the time Mr Pederick claims or anywhere near it.")He said that they pursued this with witnesses. For all of those reasons plus the inherent difference in the character of the two events (one an arrival and the other a departure) the defence never turned their minds to the sort of possibility of the Desai departure theory or anyone else departing for that matter (T99). He said that the defence evidence was focussed during that period of the afternoon on excluding arrivals. They never thought of departures and did not seek to exclude that (T100).

74 In answer to questions asked by the Tribunal, Mr Molomby gave evidence to the effect that when the trial began the defence had no knowledge of the existence of Mr Selth, Mr Evans or Mr Goffe(T18).

75 He gave evidence that when Mr Selth, Mr Evans, Mr Goffe, Detective Sergeant O’Toole and Mr Cuthbertson were giving their evidence, he does not remember specifically considering why the Crown was leading that evidence. However he does not think he did consider it because he thinks that the defence team saw the material as relating to the association between Mr Desai and Mr Fraser as it affected the timing issue because Mr Fraser could not have left later than Mr Desai, if Mr Desai was the last photograph taken in the roll. He gave evidence to the effect that he does not recall giving the question of the admissibility of the evidence of those five witnesses any specific consideration (T19).

76 In an affidavit sworn 2 July 2002, exhibit P in these proceedings, the barrister responded to paragraph 8 of Mr Molomby’s affidavit. He set out the following extract from Mr Hidden’s opening address in response to Mr Molomby’s statement that he had never discussed with Mr Hidden nor with Ms Avouris nor with the accused the possibility that the Crown’s case was, or might be that Mr Pederick had mistaken the departure of Mr Desai for his arrival:

In that same affidavit the barrister went on to say:

4. It was apparent to me at the trial, from Mr Hidden’s approach to the tendering of the further evidence near the end of the prosecution case, and from his opening address, that it was abundantly clear to him that I was suggesting that Mr Pederick had been standing opposite the Hilton hotel when Mr Desai was photographed by Mr Cuthbertson, and that this was the time when Pederick had attempted to detonate the bomb.

77 A transcript of Mr Hidden’s opening address to the jury became exhibit N in the proceedings before the Tribunal. He informed the jury in some detail of the evidence which would be called by the defence relating to the arrival of the Heads of Government at the Hilton Hotel. From our reading of the transcript it appears that Mr Hidden did not say anything about the Desai departure theory.

The letter from Grove J dated 8 November 1991

78 In the course of answering correspondence from the New South Wales Bar Association, the barrister provided to the Association supportive references from eight Supreme Court Judges, six District Court Judges, seven Senior Counsel and four junior counsel. The Bar Council tendered these references together with the correspondence written by the barrister as part of exhibit G in the proceedings before the Tribunal.

79 One of the references was a letter dated 8 November 1991 from Grove J. In the letter his Honour stated that he had not seen, nor sought to inspect, the terms of the complaint made against the barrister neither had he, for the purposes of the letter, had recourse to transcript or the appellate judgment, both of which he read some time ago. Part of the letter was in the following terms:

I recollect cross examination on behalf of the then accused touching upon the finding of certain explosives at a university. In the absence of the jury, [the barrister] drew attention to the possession by the Crown of certain evidence which might link the explosive batch with another said to be pertinent to Mr. Anderson. The caution seemed to be accepted by counsel for the accused as offered in good faith.

In the same vein, I apprehend that the transcript would confirm the remarks of senior counsel for the accused concerning the supply of information by [the barrister] which enabled the issue of a subpoena which could and did effect the production of certain intercepted communication material in the possession of federal police. My memory is of Mr. Hidden QC using words of appreciation of the integrity shown in passing the necessary information to him.

I assume that the complaint may, at least in part, relate to what I think I referred to in my charge to the jury as the change in direction of the Crown case. This is a matter, I know, adverted to in the appellate judgment and it would be entirely inappropriate for me to comment thereon. I should say, however, that the change was not imperceptible and would not have been to any lawyer, or I expect non-lawyer, listening to the proceedings. The defence was perfectly entitled to maintain the opportunity of acquittal before the jury then empanelled and to decline to apply for discharge thus preserving rights on appeal, but I have no impression that the Crown’s difficulty was any secret nor was its position sought to be suppressed or disguised.

From my point of view, I have no criticism to offer of [the barrister’s] conduct of the trial.

80 The Tribunal accepts the evidence of the barrister that he believed during the trial that no one in the Court room was in any doubt that he was leading the evidence from the five witnesses to prove the Desai departure theory. It does so not only because it accepts the barrister as a witness of truth but also because it is of the view that a number of facts provided a reasonable basis for his holding that belief. Those facts included: (a) the evidence which those witnesses gave; (b) the fact that Mr Hidden did not object to that evidence: (c) the fact that they gave their evidence at the end of the trial after the Jayawardene arrival theory had been destroyed and after the application to amend the first count had been refused; (d) the fact that three of the witnesses were unknown to the lawyers for Mr Anderson prior to the trial; and (e) the conversation between the barrister and Mr Hidden after the barrister’s conference with Mr Pederick on 19 September 1990 when Mr Hidden informed the barrister that he did not require Mr Pederick to be recalled for cross-examination.

81 The Tribunal concludes from his letter dated 8 November 1991, that Grove J had noticed, towards the end of the Crown case, the change in the Crown case to the Desai departure theory. This finding provides an additional reason for the Tribunal to conclude that the barrister had a reasonable basis for holding the above belief.

82 On the other hand Mr Molomby has given evidence, which the Tribunal accepts, that he understood that the evidence from the five witnesses to be an attempt by the Crown to establish that someone else was in George Street at the relevant time, who could have been mistaken for Mr Desai. He gave evidence that when the barrister raised the possibility of recalling Mr Pederick, he is certain that he did not then understand the way in which the prosecution case was in fact going to be left to the jury.

83 The Tribunal accepts this evidence not only because it accepts Mr Molomby as a witness of truth but also because the evidence which he gave on this question which is set out in his affidavit and summarised in paragraphs 64 to 75 above, shows that the lawyers for Mr Anderson always thought that they understood the Crown case and always thought that the Crown case was that Mr Pederick had attempted to detonate the bomb when a dignitary arrived at the Hilton Hotel, not when a dignitary departed.

84 The Tribunal therefore finds that prior to the barrister making the submission to the jury, Mr Anderson’s lawyers were not aware that the barrister proposed to rely upon the Desai departure theory. It follows that there was a genuine basic misunderstanding between the prosecution and the defence.

The timing issue

85 Mr Pederick gave evidence that he made his assassination attempt at about 2.30 or 3pm and then left Sydney hitchhiking up the Pacific Highway. He said he travelled for about 4 hours until nightfall and slept in a paddock, probably somewhere near Taree. If his timing were right, he must have been well out of Sydney when Mr Desai was leaving the Hotel. A submission concerning this evidence was made by the Bar Council (see paragraph 122 below).

The importance of the Desai departure theory

86 The barrister stated in paragraph 24 of his affidavit sworn 6 May 2002 that he proceeded to call the "5 additional witnesses" and tender additional photographs and other documents in the Crown case to prove the Desai departure theory. He also said in that paragraph that the only possible relevance of this evidence was to explain Mr Pederick’s account of what had happened when he attempted to detonate the bomb.

87 The fact that Mr Jayawardene arrived at the Hilton Hotel during the morning of 12 February 1978 meant that Mr Pederick’s evidence concerning his attempted detonation at the time of Mr Jayawardene’s arrival was wrong. This was a serious blow to the Crown case because it showed that Mr Pederick’s detailed evidence concerning the arrival and his attempted detonation at that time, was wrong. The Desai departure theory was an attempt by the Crown to reinstate Mr Pederick’s credibility as a witness. And the reliability of Mr Pederick’s evidence, especially that part of it which implicated Mr Anderson, was of major importance in the trial.

The barrister’s conference with Pederick on 19 September 1990

88 On 19 September 1990 the barrister interviewed Mr Pederick at his chambers at the Darlinghurst Court House complex in the presence of one of his instructing solicitors, Sara Bowers. It appears that the conference took place during the luncheon adjournment of the trial on that day. Ms Bowers made hand written notes of the conference and they are part of exhibit G in these proceedings. A copy was provided by the barrister to the New South Wales Bar Association when he wrote to the Association on 10 August 1992 providing information sought by the Association.

89 The barrister was aware that the notes had been made by the solicitor and were kept on the file but he did not check them at the time they were made. He would have expected that those notes would remain on the file and be available in the future (T148).

90 The notes indicate that the conference commenced at 1.15pm. The first page of the notes record matters raised by Mr Pederick. The balance of the notes of the conference are as follows:

(2) Cuthbertson’s photos (small ones)

Any possibility that you saw Desai & Fraser standing on the footpath of George St facing the cars & that they were leaving?

Evan didn’t think so, because he can remember deciding its too late now to make another attempt. Decision made as Desai was walking into Hilton.

Clear recollection of car pulling up,

handshake & greeting.

No recollection of Desai walking towards a car.

shown enlargements of Cuthbertson photos.

hair looks a bit too long.

Right arm looks as though it is reaching into something.

at that time Evan’s hair wasn’t that long.

Shown Exh R6.

" " D 1 - 4

hair in photos more the length he can remember it. Hair for passport fairly conventional.

shirt looks about right/build about right.

could have been departure as he remembers car pulling away and thinking its now too late to detonate the bomb. (Exhibit G, pp 129-230.)

91 Counsel for the Bar Council stated that no one suggested that Ms Bowers’ notes were a complete and comprehensive record of everything that was said at the conference (10/3/03, T18/31). However he submitted that the notes showed that Mr Pederick could or might say something of relevance to the Desai departure theory and had factual evidence to give. He also submitted that if Mr Pederick’s evidence were neutral, he still should have been recalled by the barrister (10/3/03, T20-21).

92 The barrister dealt with this conference and his subsequent conversation with Mr Hidden, in paragraphs 25 - 28 of his affidavit sworn 6 May 2002, as follows:

26. I took the view that Pederick’s expression of opinion and statements of possibilities were not admissible in evidence either for or against the Crown case and were entirely argumentative. Had he advanced any further material that was evidentiary, I would have asked for a statement to be taken, provided it to the defence and sought leave to recall him. I was of the opinion, however, that even if he had no further admissible evidence to give, I should offer to recall Pederick for further cross-examination by the defence in discharge of my duty of fairness.

27. I, therefore, spoke to Peter Hidden towards the end of the Crown case and, although I do not remember the exact words that we spoke or the full topics discussed, I do remember that I told him that Pederick could add no further evidence either for or against the Crown case, and that it was not my intention to recall Pederick unless he wanted me to. Hidden told me that he did not want me to recall Pederick. He seemed quite anxious that Pederick not be recalled and, in my opinion then and now, there was a sound tactical basis for this attitude. The Anderson defence were never going to be in a better position than they were in then, with the Crown opening on the Jayawardene arrival theory having been shown to be totally erroneous.

28. It never occurred to me that I should nevertheless have recalled Pederick to ask him further questions about the moment of attempted detonation, and I am sure that if I had done so, Peter Hidden would have vociferously objected that I could have been attempting to manipulate my main witness to change his evidence, or at least mould it, to fit in with my new case. This complaint would have been adapted accordingly. My offer to recall him was purely for the benefit of the defence, because there had been a change to the Crown case. The matters that are suggested at p 38 of the Court of Criminal Appeal judgement as questions that I should have asked Pederick in further evidence are all topics on which he had already given evidence to the best of his recollection. My decision was made in good faith and was based upon reasonable grounds. At the trial, neither the trial Judge nor Peter Hidden sought to complain of any failure to recall Pederick.

93 In his letter dated 10 August 1992 to the New South Wales Bar Association, which is part of exhibit G, the barrister set out his recollection of the conference in slightly different terms to paragraph 25 of his affidavit sworn 6 May 2002.

94 Also in that same letter the barrister said:

^th

95 The barrister also stated in that letter the following:

My reason for not recalling Pederick was that he could do no more than state the definite possibility that it was a departure that he had seen. Furthermore, he could not positively identify himself as the person in the enlarged photographs. I felt that it would not add anything to the evidence to have him talk about possibilities or to make comments on the similarities in the enlargements. Indeed, such testimony could be said to be argumentative rather than evidentiary, and would properly have been excluded by the trial judge. He had already given evidence of what his recollections were when he tried to detonate the bomb. I considered that I was bound by the evidence he had already given and that it would not be proper for me to question him further about possible scenarios. I considered that in offering to recall him for further cross-examination, I had discharged my duty of fairness to the accused.

96 Later in the letter the barrister said:

^th

97 In a letter dated 25 September 1992 to the New South Wales Bar Association (which is also part of exhibit G), the barrister again referred to his conference with Mr Pederick on 19 September 1990 and his subsequent discussion with Mr Hidden and then continued as follows:

^th

The position I found myself in at that stage of the trial was quite unique. There was an abundance of evidence to support Pederick. He, of course, was serving a lengthy sentence on the basis of his own confession. However the Jayawardene arrival theory had been destroyed. The Desai departure theory seemed to me to be the only logical explanation, believing as I did in the substantial truth of Pederick’s evidence.

I felt that the evidence entitled me to raise the Desai departure theory. However, had Pederick repudiated the Desai departure theory during my conference with him, I would not have advanced it in argument to the Jury. He did not repudiate it, however what he said to me (apart from repeating matters he had already given in evidence) could not, in my opinion, have been used as admissible evidence. Hence, no statement was taken from him, and there was nothing which I felt obliged to notify to the defence. Had he advanced any material which I considered to be evidentiary, either for or against the Desai departure theory, I would have obtained a further statement from him, served it on the defence, and sought leave to recall him.

98 During argument in the Court of Criminal Appeal Gleeson CJ questioned the barrister as to why he was not required to recall Mr Pederick and show him the photographs CA 1 - 3. The Court of Criminal Appeal did not ask the barrister whether he had conferred with Pederick about the photographs or the Desai departure theory but at that point the following exchange took place:

[The barrister]: And your Honour can only conclude from the fact that he was not called and that subsequent to my discussion with Mr Hidden, Mr Hidden did not require him to be recalled, my position was the last one. (Exhibit E, p 362)

99 The barrister was extensively cross-examined about the conference. During that cross-examination he said:

I did not expect that the interview would create a new memory on his part that would be admissible in evidence. Had he ... unexpectedly had a new memory, if the photographs had prompted some new memory that he had, I would certainly have got a fresh statement from him, served it on the defence and sought leave to recall him to give evidence of it. But that wasn’t the case.

I was fortified after the interview that my submission to the jury that I eventually made, was a proper one" (T94\27);

(b) "But what I expected was in fact, what happened. That it didn’t prompt any new memories. His actual memory was still as he had given in evidence." (T95\40);

(c) words to the effect that prior to the conference he was satisfied that Mr Pederick had given every piece of evidence that he could conceivably give (T80\46);

(d) he did not expect that Mr Pederick would have any additional evidence to give (T79\2);

(e) words to the effect that the purpose of the conference was for his guidance so that he could thereafter make a decision whether or not he would rely upon the Desai departure theory (T78\37 - T79\5);

(f) if Mr Pederick had held one of the photographs and said: "This is it I remember now" then he would have had a statement taken from Mr Pederick and he would have led it in evidence (T79\12);

(g) he was not seeking Mr Pederick’s imprimatur and cannot say absolutely that if Mr Pederick said that under no circumstances was the Desai departure theory a possibility, that he would not have put it to the jury (T82\37 - 47);

(h) Mr Pederick was more or less thinking out loud and trying to put order into his memory and he appeared to the barrister as though he was trying to actually remember the actual memory (T84\35);

(i) the impression he got from Mr Pederick’s thinking out loud when he said he remembered seeing the car pulling away and thinking it was too late to detonate the bomb, was that those words could be seen as being consistent with a departure. But the position Mr Pederick took overall was implacably neutral and as the barrister saw it, it did not add to his evidence and did not detract from it (T86\29);

(j) his state of mind at the time was that there was no relevant admissible evidence that he could give that Mr Pederick told him in the conference (T88\35);

(k) he took the view that Mr Pederick was not recollecting any memory that he had that was different to what he had already given in evidence and that he was engaging in conjectural argument of the kind that one does in a closing address. It was not admissible evidence (T93\31);

(l) after agreeing that one of the things that Mr Pederick said was that he had no recollection of the intended victim walking towards a car: "But he also said that there was a possibility that it could have been a departure. And then he came to the position that he really couldn’t say one way or the other." (T98\23);

(m) Mr Pederick did not retract the proposition that he had no recollection of Mr Desai walking towards a car (T99\43); and

(n) the notes of the conference were inaccurate in that they convey that Mr Pederick was giving definitive answers whereas he was not. The notes were inaccurate in that they did not convey the facts that Mr Pederick: was thinking aloud; musing over the photographs and questions asked of him; answering in an argumentative way (T 70/29-39) and gave a conjectural sort of answer (T 75/27-32). (See also T 76/31-39.)

100 The barrister has now dealt with the conference held on 19 September 1990 in his letters to the New South Wales Bar Association dated 10 August 1992, 25 September 1992 and 12 February 1993, in his affidavit sworn 6 May 2002 and in cross-examination before the Tribunal. He has also made statements during argument to the Court of Criminal Appeal which were based on what Mr Pederick had said at the conference although he did not inform the Court that the conference had been held. There are some discrepancies in all of that material. However counsel for the Bar Council did not: (a) bring those discrepancies to the attention of the barrister; (b) submit that they affected his credibility as a truthful witness; (c) make submissions as to how the discrepancies should be resolved; nor (d) submit how the discrepancies had any bearing on the question whether the barrister should have recalled Mr Pederick to give evidence.

101 After a review of all the evidence relating to this conference and after taking account of the favourable impression which the barrister made upon the Tribunal when giving evidence under cross-examination and the fact that it was not suggested in cross-examination that he was not telling the truth or that his evidence was inaccurate, the Tribunal makes the following findings in relation to the conference: (a) as a result of the conference the barrister believed that the conference had not prompted in Mr Pederick any new memory of the events; (b) Mr Pederick was initially thinking aloud; (c) Mr Pederick engaged in conjectural argument; and (d) the barrister believed there was no additional admissible evidence that Mr Pederick could give.

102 The Tribunal also makes a finding that if the barrister had believed after the conference that Mr Pederick could have given any additional evidence, whether in support of or against the Crown case, he would have had a statement taken from Mr Pederick, arranged for the statement to be served on the lawyers for Mr Anderson and sought to recall Mr Pederick to give further evidence.

103 The Tribunal is of the view that the fact that the barrister knew that Ms Bowers had taken notes of the conference and that the notes would be retained on the file for future reference, supports the findings made in paragraphs 101 and 102 above.

Expert evidence

104 Part of the evidence relied upon by the barrister was an affidavit sworn by Ian Scott Lloyd QC on 1 November 2002 (exhibit R in the proceedings) and an affidavit by Michael Alan Viney QC sworn 28 February 2003 (exhibit U in the proceedings).

105 Mr Lloyd is a barrister in private practice at the Hong Kong and Sydney bars. He was admitted to the New South Wales bar in 1977 and was appointed Queens Counsel in 1989. He was admitted to the Hong Kong bar in 1985. He practised at the Sydney bar from 1977 until 1980. From 1980 until 1988 he was employed as a Crown Counsel for the Hong Kong government. From 1988 until 1996 he was employed as a Crown prosecutor in New South Wales. In 1996 he resigned as a Crown prosecutor and returned to private practise at the Sydney bar. At the time of his resignation he held the rank of senior Crown prosecutor. In 1998 he returned to Hong Kong to practise at the private bar. Since then he has spent the majority of his time in Hong Kong.

106 He has prosecuted hundreds of trials involving serious indictable offences including murders, in both Hong Kong and Australia. He is regularly briefed to prosecute serious indictable offences for the Hong Kong government and occasionally for the Federal Director of Public Prosecutions.

107 For the purpose of preparing his affidavit Mr Lloyd was provided with copies of the judgment of the Court of Criminal Appeal, the two affidavits sworn by the barrister, the affidavit sworn by Mr Molomby and the complaint and particulars.

108 In paragraph 10 of his affidavit Mr Lloyd stated:

In my opinion, as a result of [the barrister’s] mid-trial conference with Pederick there was no further "relevant fact in intelligible form" that Pederick could add to his existing account. Given this circumstance I am of the opinion that other Crown Prosecutors of good repute and standing may well have made the same decision as that made by [the barrister] in not recalling Pederick.

109 Paragraph 9 of that affidavit which was admitted only in so far as it formed a basis for the opinion expressed in paragraph 10, was in the following terms:

In my opinion any attempt by the Crown to have Pederick recalled to give further evidence in chief in order to (arguably) "massage" his previous evidentiary account around the new Desai departure theory would have been strenuously objected to by the defence (and properly so) as a self-serving attempt by the witness and [the barrister] to bolster a flawed witness and a flawed prosecution case. The defence rejection of the offer to have the witness recalled makes this clear. In any event the result of [the barrister’s] mid-trial conference with Pederick was that Pederick could add no more admissible evidence to that which he had already given.

110 Mr Lloyd also swore an affidavit on 21 February 2003 (exhibit T in the proceedings). Three of the paragraphs in that affidavit were in the following terms:

2 For the purpose of giving the opinion contained in this affidavit, and for the purpose of giving the opinions stated in paragraphs 8 and 9 of my first affidavit, I have assumed:

2. that Bar Rule 20 applied at the time of the trial, and was in the form set out in paragraph 6 of my first affidavit;

3. the accuracy of each of the facts set out in paragraph 8 (a) to (d) inclusive of my first affidavit.

111 From 1970 to 1978, as a solicitor in private practice, Mr Viney conducted criminal trials for defendants as both solicitor and advocate. He commenced practice as a barrister in 1978. The majority of his practice involved the conduct of criminal trials. He was appointed a Crown Prosecutor in 1979 and appointed Queens Counsel in 1986. During the course of his practice as a Crown Prosecutor he conducted numerous criminal trials. From July 1987 to September 1990 he was the senior deputy Director of Public Prosecutions. In that capacity he conducted criminal trials as well as performing administrative work. He was appointed a District Court Judge in 1990 and retired in October 2000. Since that time he has been an Acting District Court Judge. During his time as a District Court Judge he has presided over numerous criminal trials, including some long and complex ones.

112 During the course of his practice as both a solicitor and barrister and during his appointments as a judge, he has had cause to consider the duties of prosecutors to fairly and impartially endeavour to ensure that the jury has before it the whole of the relevant facts in intelligible form and the application of Bar Rule 20 as it was in August 1990.

113 For the purpose of expressing the opinions in his affidavit, he had read the complaint and the particulars; the report of the New South Wales Bar Association setting out why it decided to proceed with the complaint; the judgment of the Court of Criminal Appeal; the two affidavits of the barrister and the affidavit of Mr Molomby.

114 In paragraph 5 of his affidavit Mr Viney set out the assumptions which he had made for the purpose of expressing his opinions. One of the assumptions made was that the statements of fact set out in the affidavits of the barrister and in particular the statements of fact in relation to the conversation with Mr Pederick in paragraph 25 of the affidavit sworn 6 May 2002, were accurate.

115 In paragraph 6 he recorded his opinion as follows:

(b) the respondent’s conduct in failing to recall Pederick to give evidence with respect to the "Desai departure theory" would not attract any reprobation from his professional peers of good standing and repute.

116 In paragraph 11 Mr Viney stated:

According to the material I have read, the Crown Prosecutor conferred with Pederick who was ultimately unsure whether the man he saw was arriving or departing the Hilton Hotel. Thereupon the crown called a number of witnesses as to the "Desai departure" theory, without objection. (I am merely summarizing this aspect).

117 Paragraph 18 concluded the affidavit and was in the following terms:

(b) it is extremely likely that the accused’s counsel would have strenuously objected to the grant of leave;

(c) it is highly likely that the application for leave would have been refused;

(d) the Crown Prosecutor’s professional peers of good repute and standing would have taken the same course;

(e) the failure to recall Pederick, or to seek leave to recall him, did not constitute a failure to endeavour to adduce all the evidence in an intelligible form.

118 During an interlocutory application, the Bar Council submitted in effect that expert evidence of the above type was not admissible before the Tribunal. The Tribunal did not accept those submissions and has today published its reasons why it made its orders on 24 February 2003 in relation to Mr Lloyd’s affidavit sworn 1 November 2002.

119 The Bar Council submitted that during the Anderson trial, the barrister had a duty to act fairly and impartially towards the accused. This was agreed by counsel for the barrister. (See Richardson v The Queen (1974) 131 CLR 116 at 119; Whitehorn v The Queen (1983) 152 CLR 657 at 663, Deane J and King vThe Queen (1986) 161 CLR 423 at 426, Murphy J.)

120 However in the final written submissions made on behalf of the barrister it was submitted that there was no departure from professional standards involved in the barrister not recalling Mr Pederick. The Tribunal was referred to the cases of Ziems v The Prothonotary of the Supreme Court of New South Wales (1957) 97CLR 279 at 292 - 4, Richardson v The Queen (1974) 131 CLR 116 and Apostolides v The Queen (1984) 154 CLR 563 and it was submitted in effect that those cases only required a Crown Prosecutor to call witnesses essential to the unfolding of the narrative. It was submitted that a duty to recall a witness who had already been called and who had given evidence of the relevant events, to give evidence directed to the viability of a new explanation of the evidence, goes far beyond the duties referred to in Richardson and Apostolides.

121 The written submissions went on to say that while the judgment of the Court of Criminal Appeal set parameters for prosecutorial conduct since its delivery, no case had gone so far beforehand. It was submitted that in so far as the Court’s observations established a standard of conduct, they were uttered after the relevant conduct the subject of the complaint and could not be relied upon for showing that that standard existed before the trial.

122 However it was also submitted that the questions which the Bar Council suggests ought to have been asked if Mr Pederick were recalled were objectionable and that any evidence which Mr Pederick might have been able to give in relation to the Desai departure theory would have been inadmissible. (In his opening address to the Tribunal, counsel for the Bar Council in effect submitted that the relevant evidence that Mr Pederick should upon recall have been asked to give with respect to exhibit CA1-3, was set out in the questions on page 38 of the court of Criminal Appeal judgment and a further question whether it was possible for him to have attempted to detonate the bomb some time after 5pm and still make it out of Sydney in accordance with what he had earlier said happened. (See paragraph 85 above.) In the final written submissions of the Bar Council these submissions concerning the page 38 questions were repeated.)

Professional misconduct

123 Counsel for the barrister submitted that on a charge of professional misconduct there were two issues: first, whether the conduct was in breach of an applicable professional standard - which it is not if it accords with a practice which would be adopted by a reputable minority; and secondly, whether the breach was such as to attract the strong reprobation of professional peers. It was submitted that professional misconduct does not encompass good faith errors of judgment and that passages in the judgments of Hutley and Priestley JJA in Qidwai v Brown [1984] 1 NSWLR 100 at 102E - G and 107B and of Samuels JA in Pillai v Messiter (No 2) (1989) 16 NSWLR 197, in applying the test formulated in Allinson v General Medical Council [1894] 1 QB 750 at 761, 763, established that a finding of actual reprobation is required and that evidence of reprobation is essential to a finding of misconduct.

152 A submission made by the Bar Council was that: "A prosecuting barrister’s duty, at the time of the trial, included the duty to recall a relevant Crown witness to give evidence with respect to a Crown theory or any evidence relied on by the prosecution in support of that theory as in the nature of the "Desai departure theory"."

153 The Tribunal does not accept that submission. It is of the view that the barrister’s obligation to seek leave to recall Mr Pederick arose from his duty to act fairly and impartially towards Mr Anderson. When the barrister made the decision to submit the Desai departure theory to the jury, that duty obliged him to seek leave to recall Mr Pederick because of the way the case had been conducted by the Crown and the evidence which the Crown had placed before the jury. Whether in every criminal trial a Crown prosecutor would be under a duty to seek leave to recall a relevant Crown witness with respect to a Crown theory or any evidence in support of it, would depend on the particular circumstances of the trial.

The application and the decision made on 15 October 1990

154 Counsel for the barrister relied upon the decision of Grove J made on 15 October 1990 as showing that the barrister’s actions would not have attracted the strong reprobation of professional peers (10/3/03 T9-10).

155 The Tribunal is of the view that the decision of Grove J provides some evidence as to the context in which the failure to recall Mr Pederick must be considered.

156 It is necessary to bear in mind that the circumstances in which the failure to recall Mr Pederick occurred, is a relevant factor when considering the ultimate question which this Tribunal must consider.

157 It is not clear precisely when the barrister informed Mr Hidden that it was not his intention to recall Mr Pederick unless he wanted him to do so. All that can be confidently concluded is that it was after the conference and before Saturday 22 September 1990.

158 It might be argued today that mature consideration would have suggested that a course which the barrister should have followed was to seek to recall Mr Pederick and if necessary have him give evidence on the voir dire so as to allow Grove J to decide whether the evidence should be allowed. However such consideration would be made with the benefit of the Court of Criminal Appeal judgment. The barrister’s decision was made during the running of the trial where no doubt the facts that: (a) Mr Pederick’s evidence concerning the Jayawardene arrival theory had been destroyed and (b) Mr Pederick had completed his evidence on 3 September 1990, would have been in the barrister’s mind. The barrister gave evidence, which the Tribunal accepts, that at the time, he was "very mindful of the fact that the defence had got a very significant advantage from the Jayawardene arrival theory having been destroyed and that any attempt by me to recall Evan Pederick at all, would have been viewed as an attempt by me to try and get him to change his evidence to fit in with the new Crown theory" (T 114/1-7). All of these facts would have pointed in the direction of not seeking to recall Mr Pederick. (See also the barrister’s evidence at T 114/39 - 115/19 where he said that if he takes the view that evidence is inadmissible, he will not lead it - nor test it on a voire dire - even where judges have intimated that the evidence is admissible. If he thinks the evidence is inadmissible and does not have a genuine belief in its admissibility he will not lead it because he considers it is not proper to do so.)

159 It is necessary for this Tribunal to attempt to understand the atmosphere of the trial because it would have influenced the way the barrister viewed what Mr Pederick told him in conference on 19 September and would have influenced the decision he then made.

160 It is extremely difficult for anyone who was not present at the trial and intimately involved in it to fully understand that atmosphere . However the Tribunal considers that the following matters give some indication of what that atmosphere was:

(ii) make any comment about that submission at the next adjournment after the submission had been made;

(iii) conclude in his judgment of 15 October 1990 that the submission was unfair; or

(iv) withdraw the submission from the jury after the objection had been made by Mr Hidden; and

Those matters also provide some indication that it did not occur to either Grove J or Mr Hidden that Mr Pederick should have been recalled by the barrister or that the barrister ’s failure to recall him was unfair.

161 True it is that neither Mr Hidden nor his Honour knew what evidence Mr Pederick might be able to give. But neither did the Court of Criminal Appeal yet it still held that Mr Pederick should have been recalled in chief and that the failure to do so resulted in unfairness to Mr Anderson.

162 The Tribunal is therefore of the view that the decision of Grove J made on 15 October 1990 is a matter which should be taken into account by the Tribunal in deciding whether the barrister’s failure to recall Mr Pederick would be reasonably regarded as disgraceful and dishonourable by the barrister’s professional peers of good repute and competency.

The expert evidence

163 In his final written submissions, counsel for the barrister submitted that Hutley JA in Qidwai v Brown [1984] 1 NSWLR 100 at 102F pointed out that the making of a finding that a person’s conduct attracted professional reprobation, without evidence to sustain it, constituted an error of law. It was further submitted that as the Bar Council had not adduced evidence of the attitude of professional peers nor any evidence which could support a finding of fact on the element of reprobation, no finding of professional conduct should be made by the Tribunal.

164 In an earlier interlocutory submission counsel for the barrister submitted that statements made by Hutley and Priestley JA in Qidwai v Brown and by Samuels JA with whom Clarke JA agreed in Pillai v Messiter (No 2) (1989) 16 NSWLR 197, suggested and pointed to the essentiality of evidence of professional reprobation before this Tribunal could make a finding of professional misconduct.

165 In considering these submissions and the evidence of Mr Lloyd and Mr Viney, it must be remembered that the definition of professional misconduct which is currently applied in relation to the conduct of lawyers, namely, behaviour on the part of the lawyer which would reasonably be regarded as disgraceful and dishonourable by professional peers of good repute and competency (Prothonotary of the Supreme Court of New South Wales v Costello [1984] 3 NSWLR 201 at 203D - F) is based upon the definition formulated in Allinson v General Council of Medical Education and Registration [1894] 1 QB 750 where it was said that the definition propounded was not exhaustive (page 763. See also Priestley JA in Costello at 207).

166 The Tribunal can well understand that in disciplinary proceedings involving a medical practitioner (as was the case in Qidwai and Pillai) an allegation might be made that conduct of a medical practitioner deviated from an accepted procedure and that such a deviation had become the subject of professional reprobation (see Qidwai at page 101D - E).

167 However that is not what is alleged here. It is not alleged that in a criminal trial where the Crown prosecutor proposes to make a final submission to the jury which is not in accordance with the opening address to the jury and which is contrary in some respects to parts of the evidence of a witness, there is an accepted practice that the prosecutor will recall the witness and obtain evidence in chief in relation to the proposed final submission. It is not alleged that deviation from such an alleged accepted practice has become the subject of professional reprobation. The Tribunal does not regard the Bar Council’s submission referred to in paragraph 153 as a submission that a practice had become accepted and that deviation from it had become the subject of professional reprobation. The Tribunal is therefore of the view that the decisions in Qidwai and Pillai do not require evidence that the barrister’s conduct amounted to a departure from an accepted procedure, which departure had become the subject of professional reprobation. The Tribunal is of the view that its function is to determine whether the conduct of the barrister would reasonably be regarded as disgraceful and dishonourable by his professional peers of good repute and competency and that it can make that determination even if there is no evidence from a professional peer that the conduct is so regarded.

The affidavit evidence of Mr Lloyd

168 In neither of his affidavits did Mr Lloyd refer to the duty which Crown prosecutors owe to an accused to act fairly and impartially.

169 At the time of the trial Rule 20 of the rules of the New South Wales Bar Association was in the following terms:

A barrister appearing for the Crown in a criminal case is a representative of the State and his function is to assist the court in arriving at the truth. It is not his duty to obtain a conviction by all means but fairly and impartially to endeavour to ensure that the jury has before it the whole of the relevant facts in intelligible form and to see that the jury is adequately instructed as to the law so as to be able to apply the law to the facts. He shall not press for a conviction beyond putting the case for the Crown fully and firmly. He shall not by his language or conduct endeavour to inflame or prejudice the jury against the prisoner. He shall not urge any argument of law that he does not believe to be of substance or any argument of fact that does not carry weight in his mind.

170 The first sentence of paragraph 10 of Mr Lloyd’s affidavit sworn 1 November 2002 speaks in terms of words used in rule 20.

171 The last sentence in paragraph 9 of that affidavit namely: "In any event the result of [the barrister’s] mid-trial conference with Pederick was that Pederick could add no more admissible evidence to that which he had already given" is contrary to the decision of the Court of Criminal Appeal that Mr Pederick could have given further relevant evidence. Paragraph 9 appears to form the basis for the statement of opinion in paragraph 10.

172 In the above circumstances the Tribunal is not persuaded that it should accept the opinion expressed in paragraph 10. This conclusion is confirmed in the view of the Tribunal by paragraphs 2 and 3 of Mr Lloyd’s affidavit sworn 21 February 2003. In paragraph 2 he states that he has conversed with other barristers about the obligation imposed by Bar Rule 20 and about their practices in relation to compliance with that obligation. In paragraph 3 he states: "The standard required of the Crown prosecutor was prescribed by Bar Rule 20." Nowhere in that affidavit did Mr Lloyd refer to the duty which Crown prosecutors have to act fairly and impartially to the accused.

The affidavit of Mr Viney

173 Paragraph 6 (a) of Mr Viney’s affidavit expresses an opinion to the effect that the barrister did not breach Rule 20. Paragraph 18 (e) is a similar expression of opinion.

174 Paragraph 5 states that in expressing the opinions contained in the affidavit he made the assumptions set out in the following four sub paragraphs. The fourth sub paragraph refers to the grounds of complaint and one of the particulars. However we do not read that sub paragraph as Mr Viney saying that he has made an assumption that the barrister had a duty to act fairly and impartially.

175 Accordingly the Tribunal is not satisfied that in expressing his opinions Mr Viney took account of the duty which was imposed upon the barrister to act fairly and impartially towards Mr Anderson.

176 In the above circumstances, the Tribunal has not used the evidence of Mr Viney or Mr Lloyd in coming to its conclusion that the barrister was not guilty of professional misconduct.

Supportive references

177 Mention has been made above of the supportive references which are part of exhibit G. The persons who provided the references include Supreme Court and District Court Judges before whom the barrister has appeared as Crown prosecutor in criminal trials and barristers who have appeared against the barrister in criminal trials. They paint a glowing picture of the barrister as a Crown prosecutor who has a well earned reputation of being honest, fair and highly competent; a person who displays all those qualities expected from a Crown prosecutor; a person held in high regard and a person who has those qualities of integrity and forthrightness which should be the mark of any barrister. They contain statements to the effect that for the barrister to have acted unfairly would be wholly out of character.

178 During the hearing, the Tribunal raised with counsel for the parties, how the Tribunal might use these references. Counsel for the Bar Council submitted that they were admissible as character evidence and under Section 97 of the Evidence Act1995 as tendency evidence. However he submitted in effect that the Tribunal could give very little weight to them (31/3/03, T86/35 - 88/21). Counsel for the barrister submitted that they were admissible under section 97 of the Evidence Act 1995; alternatively they were admissible because that type of evidence had been admitted in disciplinary proceedings over many years and the Evidence Act was not a code; and finally - they were admissible because there are important analogies between criminal proceedings and disciplinary proceedings and the use of character evidence is one of them. He submitted that the references were admissible for the purpose of showing that the barrister was a person who was unlikely to have acted in disregard of his duties (31/3/03, T105/23 - 106/47).

179 During the hearing reference was made to section 110 of the Evidence Act which enables evidence of good character to be admitted in criminal proceedings. It was submitted by counsel for the barrister that the Evidence Act was not a Code. However at common law it appears that the good character of a party in civil proceedings is inadmissible (Cross on Evidence, Australian edition, para 19165).

180 Section 97of the Evidence Act provides that evidence of the character, reputation or conduct of a person, or a tendency that a person has or had, is not admissible to prove that a person has or had a tendency to act in a particular way, or to have a particular state of mind if the Court thinks that the evidence would not, either by itself or having regard to other evidence adduced, have significant probative value.

181 However the Court of Criminal Appeal has held that there was unfairness involved in the procedure adopted at the trial, one example of which was the barrister addressing the jury on the photographs without his having recalled Mr Pederick and asking him the questions set out at page 38 of the Court’s judgment.

182 The Court also held that it was unfair to allow the Crown to promote the Desai departure theory without the Crown being put in the position of recalling Mr Pederick and re-opening his evidence in chief.

183 Implicit in each of those findings is a finding that the barrister’s actions constituted unfairness towards Mr Anderson when he did not seek leave to recall Mr Pederick but made the Desai departure theory submission to the jury. However it does not follow from such a finding that the barrister was guilty of professional misconduct (Whitehorn V The Queen (1983) 152 CLR 657 at 669).

184 The Tribunal is of the opinion that even if it is not bound as a matter of law to adopt that finding, the Court of Criminal Appeal judgment is persuasive authority which the Tribunal should follow. The Tribunal therefore finds that the barrister’s actions constituted unfairness towards Mr Anderson when he did not seek leave to recall Mr Pederick and re-open his evidence in chief but made the Desai departure theory submission to the jury.

185 There is no suggestion made by the Bar Council that the barrister acted with any improper motive (19/2/03 T 45; 12/3/03 T 154/37 - 155/13). The evidence is all to the contrary and the Tribunal finds that he did not do so.

186 The references might be viewed as evidence that the barrister was intending to act fairly. But the Tribunal is of the view that the other evidence before the Tribunal such as that referred to in paragraphs 80 and 92 shows that to be the case and the Tribunal thus has no need to take into account the references to make such a finding (which it does make).

187 It therefore follows from the above that even if the Tribunal could use the supportive references as tendency evidence, there is no need to do so. Accordingly the Tribunal has not relied upon those references to make any of its findings. (The Tribunal has not used the letter from Grove J as a supportive reference nor as evidence that Grove J did not consider that the barrister has acted unfairly. It has only used the letter to make the finding in paragraph 81 above.)

Mr Hidden’s opening address to the jury

188 It is necessary for the Tribunal to draw attention to another part of Mr Hidden’s opening address to the jury. It is recorded at page 1278 of exhibit N as follows:

Now those photos on Friday we say were in effect a stratagem born in desperation, appears on those photographs to be unlikely Mr Pederick how he was dressed at the time he described it (sic); the figure has no glasses, Mr Pederick says he had glasses. There is, if you accept our suggestion, no sleeves or if you accept the prosecution’s suggestion at one point, long sleeves, both of which are inconsistent with Mr Pederick’s suggestion of short sleeves and it is clearly not carrying anything like an airline bag but most importantly and the most significant mark of the desperation of the stratagem is that to suggest that the figure could be Mr Pederick is to suggest that you should disbelieve his very clear evidence about the circumstances in which he attempted to detonate the bomb and then left the scene.

Now Mr Pederick himself has not been produced to support the proposition arising out of those photos you saw on Friday. Find a way of disbelieving Mr Pederick, pleads the prosecution, even if you have to disbelieve him to do it.

189 The Tribunal concludes from that extract that when Mr Hidden opened to the jury, and probably from the time of the tender of the photographs exhibit CA 1 - 3 on 21 September 1990, Mr Hidden appreciated that the barrister was proposing to submit in his final address to the jury that Mr Pederick was the person shown in exhibit CA 1 - 3 even though he did not intend to call Mr Pederick to support that submission.

Disgraceful and dishonourable conduct

190 The following findings, which are made by the Tribunal, are matters which the Tribunal considers it should take into account in deciding whether the failure of the barrister to recall Mr Pederick to give evidence with respect to the Desai departure theory would be reasonably regarded as disgraceful and dishonourable conduct by his professional peers of good repute and competency:

(a) the fact that on 21 September 1990 when the barrister tendered exhibit CA 1 - 3, he invited the jury to compare the person shown in the photographs on the western side of George Street with the photograph exhibit R 1 of Mr Pederick;

(b) the fact that when Mr Hidden opened to the jury and probably from the time of the tender by the barrister of exhibit CA 1 - 3 on 21 September, he appreciated that the barrister was proposing to submit to the jury they could conclude that Mr Pederick was the person shown in exhibit CA 1 - 3;

(c) the barrister believed that it was clear to everyone in Court that he was proposing to advance the Desai departure theory in his final address to the jury;

(d) the barrister’s leading of the evidence from the five witnesses concerning Mr Desai’s departure from the Hotel; his inviting the jury to compare the man on the western side of George Street in exhibit CA 1 - 3 with the photograph of Mr Pederick which is exhibit R 1, during the evidence of Mr Cuthbertson; and his conversation with Mr Hidden when he informed him that Mr Pederick could add no further evidence either for or against the Crown case but he offered to have Mr Pederick recalled for cross-examination, provided a reasonable basis for that belief;

(e) the fact that Grove J noticed towards the end of the Crown case, the change to the Desai departure theory;

(f) the barrister believed that Mr Pederick could not give any further evidence for or against the Crown case;

(g) during the conference held on 19 September, Mr Pederick engaged in conjectural argument and what he said and how he said it provided the basis for the barrister’s concluding that the conference had not prompted any new memory of the events and for the barrister’s belief that Mr Pederick could not give any further evidence for or against the Crown case;

(h) the fact that the barrister considered he was bound by the evidence Mr Pederick had already given and that it would not be proper for him to question him further about possible scenarios;

(i) Mr Pederick had already given evidence as to the type of scene he saw on the day; what he was wearing and his general appearance, the location in which he was; and what he was doing at the time of the attempted detonation;

(j) the fact that the barrister spoke to Mr Hidden after the conference with Mr Pederick and before the close of the Crown case and told him that Mr Pederick could add no further evidence either for or against the Crown case and that it was not his intention to recall Mr Pederick unless Mr Hidden wanted the barrister to do so;

(k) the fact that notwithstanding the barrister came to the view that Mr Pederick could add no further evidence, he offered to recall Mr Pederick for further cross examination because he considered that was required of him in order to discharge his duty of fairness;

(l) the barrister’s failure to recall Mr Pederick and ask him the questions set out at page 38 of the Court of Criminal Appeal judgment resulted in unfairness to Mr Anderson;

(m) the barrister’s actions constituted unfairness towards Mr Anderson in failing to seek leave to recall Mr Pederick so that he could ask him the questions set out on page 38 of the Court of Criminal Appeal judgment;

(n) the barrister’s failure to seek leave to recall Mr Pederick was not a deliberate departure from his duty to act fairly and impartially towards Mr Anderson. It did not involve a decision made wilfully with a wrong intention (Pillai v Messiter (No 2) (1989) 16 NSWLR 197 at 200 C- F);

(o) the fact that Grove J did not withdraw the Desai departure theory submission from the jury but left the case to the jury on the basis that the hypothesis was open. (The Tribunal also makes a finding that Grove J did not conclude that the barrister acted unfairly.);

(p) the fact that Mr Hidden did not on 15 October 1990 submit that it was unfair for the barrister to make the Desai departure theory submission to the jury when the barrister had not recalled Mr Pederick to give further evidence in chief. (Mr Hidden may have had good tactical reasons for not wanting Mr Pederick recalled but he could still have made the submission and at the same time resisted the recall of Mr Pederick on the basis that he was not in a position to cross-examine him on this new theory.);

(q) the consequences of the barrister’s failure to recall Mr Pederick namely Mr Anderson did not receive a fair trial and his convictions were quashed by the Court of Criminal Appeal and verdicts of acquittal entered;

(r) the barrister was aware of his duty to act fairly towards Mr Anderson. He took all of his duties to Mr Anderson seriously and had he believed that there was any additional evidence that Mr Pederick could have given (whether for or against the Crown case) he would have had a statement taken from Mr Pederick, served it on Mr Hidden and sought to recall Mr Pederick;

(s) it never occurred to the barrister that he should nevertheless have sought leave to recall Mr Pederick to give evidence on the questions referred to on page 38 of the Court of Criminal Appeal judgment;

(t) Mr Anderson’s lawyers were not aware until the barrister’s final address, that he proposed to rely upon the Desai departure theory; and

(u) the Desai departure theory was of major importance in the trial.

191 The Tribunal is of the view that the above findings show:

(b) the barrister’s actions constituted unfairness towards Mr Anderson in not seeking leave to recall Mr Pederick so that he could ask him those questions: and

(c) the consequences of the barrister’s failure to recall Mr Pederick were that Mr Anderson did not receive a fair trial and his convictions were quashed by the Court of Criminal Appeal and verdicts of acquittal entered;

(b) the barrister believed that Mr Pederick could not given any additional evidence;

(c) the barrister believed he had discharged his duty of fairness to Mr Anderson by offering to Mr Hidden to recall Mr Pederick for cross-examination;

(d) the barrister made an honest mistake in not seeking leave to recall Mr Pederick;

(e) the barrister took his duties to Mr Anderson seriously and believed he was acting in accordance with those duties;

(f) the barrister did not act wilfully with a wrong intention; and

(g) Grove J did not conclude and Mr Hidden did not submit on 15 October 1990 that the barrister had acted unfairly in not seeking leave to recall Mr Pederick.

192 The Tribunal finds that the defence did not appreciate that the prosecution was to rely on the Desai departure theory but that the barrister reasonably believed that they did. This misunderstanding explains the conduct of those involved in the trial.

193 The Tribunal is of the view that after taking into account the findings and conclusions set out in paragraphs 190 - 192 above, the barristers’s peers of good repute and competency would not reasonably regard as disgraceful or dishonourable the barrister’s failure to seek leave to recall Mr Pederick to give evidence with respect to the Desai departure theory. The Tribunal considers that it is more appropriate to express this finding in terms of seeking leave to recall Mr Pederick, because after Mr Pederick had completed his evidence, the barrister had no automatic right to recall him. However the Tribunal is also of the view that after taking into account the findings and conclusions set out in paragraphs 190 - 192 above, the barrister’s peers of good repute and competency would not reasonably regard as disgraceful or dishonourable the barrister’s failure to recall Mr Pederick to give evidence with respect to the Desai departure theory.

194 The Tribunal therefore finds that the barrister was not guilty of professional misconduct.

195 The Tribunal therefore orders that the complaint be dismissed.

196 The Tribunal notes that the suppression orders already made are continuing.

197 The Tribunal reserves for later consideration the question of costs and the question of the inclusion in this decision of the name of the barrister in substitution for "FC".

Schedule

Complaint

The grounds of complaint are set out in the complaint filed on 17 March 1993 in the following terms:

GROUNDS OF COMPLAINT

1. Whilst appearing as Crown Prosecutor in the trial Regina -v- Timothy Edward Anderson in the Supreme Court of New South Wales between 15 August and 25 October 1990, the barrister breached his duty to act fairly and impartially in that he did not recall a Crown witness, Evan Dunstan Pederick, to give evidence with respect to the "Desai departure theory".

The following particulars of those grounds are set out in the complaint as follows:

PARTICULARS OF GROUND 1

1. Between 15 August and 25 October 1990, the barrister appeared as Crown Prosecutor in the trial Regina -v- Timothy Edward Anderson on three counts of murder and one of attempted murder before Grove J. and a jury in the Supreme Court of New South Wales. The crimes alleged in the indictment arose from events on 12 and 13 February 1978 which became known as the "Hilton bombing". The indictment alleged, inter alia, the attempted murder of Junius Jayawardene, the then President of Sri Lanka.

2. The barrister called as the principal Crown witness one Evan Dunstan Pederick. Pederick gave evidence that he had attempted to detonate a bomb at the time when President Jayawardene arrived at the Hilton Hotel in Sydney on 12 February 1978 ("the Jayawardene arrival"). The barrister had outlined the Crown case in this manner earlier in his opening address to the jury.

3. The credibility of Pederick as a witness was the central issue at the trial and a critical part of the defence attack on Pederick was his evidence concerning the Jayawardene arrival.

4. During the course of the Crown case, it became known to the barrister that the attempted detonation by Pederick could not have occurred at the time of President Jayawardene’s arrival at the hotel. The barrister applied to amend the indictment to substitute "a person unknown" for President Jayawardene but Grove J. refused this application.

5. During the course of the Crown case, the barrister determined that he would address the jury in his closing address upon the basis that Pederick attempted to detonate the bomb at the time when Moraji Desai, the then Prime Minister of India, was leaving the Hilton Hotel on 12 February 1978 ("the Desai departure theory"). At no time during the trial did the barrister apply to amend the indictment on the attempted murder count to substitute "Moraji Desai" for "President Jayawardene". The barrister called certain witnesses towards the end of the Crown case whose evidence appeared to relate to the "Desai departure theory".

6. The barrister conferred with Pederick on 19 September 1990 before the close of the Crown case with respect to the "Desai departure theory".

7. Prior to his closing address, the barrister did not inform the Court and defence counsel that he proposed to submit the "Desai departure theory" to the jury. He did not inform defence counsel of the content of his conference with Pederick on 19 September 1990. He asked defence counsel if he wished Pederick recalled for further cross-examiantion (sic) but did not tell defence counsel of his intention to put the "Desai departure theory" to the jury.

8. The barrister submitted the "Desai departure theory" in his closing address to the jury. He abandoned the "Jayawardene arrival theory" and addressed the jury in a manner suggesting that Pederick had been led by the Crown authorities, including the barrister, into making an error mistaking the Jayawardene arrival for the Desai departure. There was no evidence before the jury from Pederick as to the "Desai departure theory" or any misleading of him by Crown authorities.

9. Having formed the intention to put the "Desai departure theory" to the jury, it was the duty of the barrister as Crown Prosecutor to recall Pederick as a witness in the Crown case to give evidence concerning that issue and any basis upon which he may have been misled by Crown authorities.

10. By not recalling Pederick in the abovementioned circumstances, the barrister breached his duty to fairly and impartially endeavour to ensure that the jury had before it the whole of the relevant facts in intelligible form.

Amended Reply

The barrister’s amended reply was as follows:

1 The Respondent denies that he breached his duty to act fairly and impartially with regard to the possible recall of a Crown witness Evan Dunstan Pederick to give evidence with respect to the "Desai departure theory". The Respondent further says that he offered to recall the said witness but Counsel for the accused did not wish this to be done.

Reply to Particulars

5 The witnesses called by the Respondent towards the end of the Crown case obviously related to the "Desai departure theory" and had no other relevance. This was obvious to Counsel for the Defence and Grove J.

6 After conferring with Pederick on 19 September 1990 the Respondent formed the view that Pederick could add nothing to either the Crown case or the Defence case with regard to the new theory. Subsequently either on that day, or soon afterwards but before the closure of the Crown case on 24 September 1990, the Respondent told Counsel for the Accused that he had spoken further to Pederick and that it was not his intention to recall him as he felt he could not assist the Court with any further evidence either for or against the Crown case. Counsel for the Accused did not want Pederick recalled then, nor did he avail himself of the further opportunity given to him by Grove J. to have Pederick recalled (T. 1818).

7 At the time of the offer to recall Pederick it was manifestly obvious to Counsel for the Defence that the Respondent proposed to submit the Desai departure theory to the jury. This was because of the evidence already called.

8 The submissions made by the Respondent to the jury were justified by the evidence as a whole.

9 The Respondent denies the duty alleged, especially in the light of the attitude of Counsel for the Defence.

10 The Respondent denies the breach of duty alleged.

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Citations

New South Wales Bar Association v Tedeschi (No 2) [2003] NSWADT 201

Cases Citing This Decision

0

Cases Cited

10

Statutory Material Cited

2

Richardson v The Queen [1974] HCA 19

R v Scott [2004] NSWCCA 254

Gilham v R [2012] NSWCCA 131

CITATION:	New South Wales Bar Association v Tedeschi (No 2) [2003] NSWADT 201
DIVISION:	Legal Services Division
PARTIES:	APPLICANT Council of the New South Wales Bar Association RESPONDENT Mark Alfred Guido Tedeschi
FILE NUMBER:	012040
HEARING DATES:	10-12/03/2003, 31/03/2003, 04/04/2003
SUBMISSIONS CLOSED:	04/04/2003
DATE OF DECISION:	04/30/2003
BEFORE:	Robberds LP - Judicial Member; Bennett AC SC- Judicial Member; Elliott K - Member
APPLICATION:	Professional Misconduct - breach of duty to act fairly and impartially
MATTER FOR DECISION:	Principal matter
LEGISLATION CITED:	Evidence Act 1995 Legal Profession Act 1987
CASES CITED:	Richardson v The Queen (1974) 131 CLR 116 Whitehorn v The Queen (1983) 152 CLR 657 King v The Queen (1986) 161 CLR 423 Ziems v The Prothonotary of the Supreme Court of New South Wales (1957) 97 CLR 279 Apostolides v The Queen (1984) 154 CLR 563 Qidwai v Brown [1984] 1 NSWLR 100 Pillai v Messiter (No 2) (1989) 16 nswlr 197 Allinson v General Medical Council [1894] 1 QB 750 Crispin and the Legal Profession Act (LPDT, 15 April 1992) Prothonotary of the Supreme Court of New South Wales v Costello [1984] 3 NSWLR 201
REPRESENTATION:	APPLICANT P R Garling SC & P R Boulten, barrister RESPONDENT P Le G Brereton SC & D Perrignon, barrister
ORDERS:	1 The complaint be dismissed; 2 The Tribunal reserves for further consideration the question of costs and the question of the inclusion in its decision of 30 APril 2003 of the name of the barrister in substitution for "FC"