On 14 December 2017, the Daily Telegraph published a news article by crime editor Mark Morri and Janet Fife-Yeomans which claimed Senior Crown Prosecutor Mark Tedeschi QC issued a “blunt warning to colleagues to get tough on criminals”.
According to the tabloid, the “warning” was part of a broader campaign by the highly-respected prosecutor to “seek to restore community confidence in the state’s justice system” in response to mounting public discontentment towards the “soft” approach applied by lawyers from the Office of the Director of Public Prosecutions (ODPP).
The report claimed Mr Tedeschi “laid down the law” by sending “two strongly worded emails” urging prosecutors to “stop doing soft-on-crime deals with crooks”.
It further claimed Tedeschi’s second email directed prosecutors to “remain ‘robust’ and to challenge as far as possible any defence lawyers claims”, to “not agree to facts submitted on sentence if they were contrary to the evidence” and to “push for jail time when appropriate”.
It proceeded to assert that Tedeschi “listed a series of inappropriate concessions made by prosecutors”, including “highlighting only mitigating factors (on sentence) while failing to assist the court by submitting on the aggravated factors or inappropriately submitting that a non-custodial sentence is appropriate”.
The article says this “call to get tough in criminals was applauded by NSW Attorney-General Mark Speakman”.
Bar Association response
The President of the NSW Bar Association, Arthur Moses SC, responded to the Telegraph report by releasing the following media statement:
“This morning’s article in the Daily Telegraph entitled ““NSW head prosecutor Mark Tedeschi QC issues blunt warning to colleagues to get tough on criminals” contains a number of inaccuracies regarding the purpose and content of communications which have transpired between the Senior Crown Prosecutor and Crown Prosecutors.
The article presents two emails sent from the Senior Crown Prosecutor on successive days as being consistent and that together they comprise an initiative by the Senior Crown Prosecutor to remind prosecutors of their obligations. As a matter of fact, the second email of 8 December was intended to withdraw the previous instruction to prosecutors regarding concessions and emphasise the discretion of counsel to make appropriate concessions and exercise independent forensic judgment in the course of a criminal trial or sentence. That is a duty which Prosecutors, if they wish to remain members of the Bar, are obliged to comply with and it is part of their duty to the Court to conduct themselves in that manner in order to assist in the administration of justice.
The second email followed a letter from the Bar Association to the DPP on 7 December which expressed serious concerns regarding the content of the Senior Crown Prosecutor’s first email, which in the Bar Association’s opinion displayed a fundamental misunderstanding of the independent role of Crown Prosecutors. That first email had the tendency of characterising the role of Crown Prosecutors as mere agents, rather than independent counsel exercising discretion in individual cases. It is a trite observation that a Crown Prosecutor has a duty to exercise independent judgment over and above the role to simply act as a contradictor to the defence, and a failure to do so would be in breach of the Legal Profession Uniform Conduct (Barristers) Rules 2015. A copy of the Association’s letter to the DPP of 7 December is attached. The DPP acknowledged that the Association was correct to raise the issues it did in its correspondence dated 7 December.
The Senior Crown Prosecutor’s second email of 8 December explicitly withdrew the previous communication of 7 December and was intended to correct the record and emphasise the independent duties of Crown Prosecutors in light of the concerns raised in the Association’s letter. It was a matter of profound disappointment that both emails appear to have been released publicly to the Daily Telegraph in circumstances where that media outlet does not appear to have been informed as to the reason for the second email being issued. This omission not only has the tendency to mislead the reporters of the Daily Telegraph, but in turn also has the tendency to mislead the public, the judiciary, and the profession including Crown Prosecutors who were the recipients of both emails.
Appropriate concessions by both prosecutors and defendants in criminal trials have an important role to play in assisting the Court to deal with the real issues in proceedings. Without appropriate concessions, the length of sentencing proceedings in criminal courts would be extended, leading to further delays in our court system which cause unnecessary distress to victims and witnesses who are awaiting matters to be dealt with by our underresourced courts. It also undermines the early guilty plea reforms announced by the NSW Government.
The article also contains criticisms of Crown Prosecutors which is unfortunate because it unfairly impugns their conduct and performance. The vast majority of Crown Prosecutors in this state discharge their duty in accordance with their lawful obligations, often in very stressful circumstances where they are running back to back trials for serious offences. These Crown Prosecutors should be supported, not publicly criticised.
The article also refers to “paltry sentences and bizarre decisions” by the courts. It is important to note that the judicial officers make decisions regarding sentences on the basis of the material before them, including the evidence and the submissions of the prosecution and defence. It is wholly inappropriate to criticise judges, and their decisions in isolation without understanding the evidence before the Courts and the context in which they are made. Judges have a difficult, stressful and important duty to discharge on behalf of the community when they are sentencing offenders. Judges discharge this solemn duty based on the evidence and the law which must be applied, not according to their own personal views as to what should happen to an offender.”
Criticism of crime editor
This is not the first time the newspaper’s crime editor Mark Morri has been accused of misleading and sensationalist reporting.
On 26 October 2015, Morri wrote a news report titled, “Murders may lead to more victims: Fears serial killer at large”.
The first sentence of that report read, “MURDERED mother Karlie Pearce-Stevenson and her daughter Khandalyce may not be the only victims of their killer, police believe”.
Mr Morri’s basis for the report was that an unnamed officer in the NSW Police Force had allegedly told him that “There is no escaping the fact there are some traits of these victims which mean it could be the work of a serial killer” and that “Senior Officers could not discount the possibility the killer had struck before”.
As Paul Barry of Media Watch noted, alleged comments made by police about being unable to discount the possibility of the murders being the work of a serial killer are a manifestly insufficient basis for drawing the sensationalist and misleading inference that a “serial killer… was still on the loose”. Indeed, police could not exclude the possibility of virtually anyone being the killer.
Through his report, Morri appears to have found it acceptable to fuel public hysteria by drawing unsubstantiated inferences about a family tragedy. But what else could be expected from the Daily Telegraph.