R v Catt - [2005] NSWCCA 279

No judgment structure available for this case.

CITATION:
Regina v CATT [2005] NSWCCA 279

HEARING DATE(S): 27 October 2004

JUDGMENT DATE:

17 August 2005

JUDGMENT OF:
McClellan AJA at 1; Adams J at 237; Smart AJ at 238

DECISION:
1. Uphold the appeal in relation to counts 1, 2, 5, 6, 7 and 9 and quash each conviction; 2. Enter a verdict of acquittal on count 9; 3. Order that there be a new trial in relation to counts 1, 2, 5, 6 and 7; 4. Dismiss the appeal in relation to counts 3 and 4; 5. The appellant's bail is to continue; 6. Reserve liberty to apply

CATCHWORDS:
CRIMINAL LAW - appeal against conviction pursuant to s 474C(1)(b) of the Crimes Act 1900 - whether the convictions were the result of a miscarriage of justice - whether because of fresh evidence the conviction in relation to each count must be quashed

LEGISLATION CITED:

Crimes Act 1900
Crimes (Sentencing Procedure) Act 1999
Criminal Appeal Act 1912
Criminal Procedure Act 1986
Firearms and Dangerous Weapons Act 1973

CASES CITED:
Doggett v The Queen (2001) 208 CLR 343
Dunn and Cody v The King (1937) 57 CLR 170
Eastman v DPP (ACT) (2003) 77 ALJR 1122
Gallagher v The Queen (1986) 160 CLR 392
Histollo Pty Ltd v Director-General of National Parks and Wildlife Service (1998) 45 NSWLR 661
Johns (1999) 110 A Crim R 149
Mickelberg v The Queen (1988-89) 167 CLR 259
Pedrana (2001) 123 A Crim R 1
R v Grant & Ors (1944) 30 Cr App R 99
R v Hannes [2003] NSWCCA 503
R v Kremmer (2000) 50 NSWLR 538
R v Norfolk Quarter Sessions, ex parte Brunson (1953) 37 Cr App R 6; c/f R v Robert Smith (1924) 18 Cr App R 19
R v Roseanne Catt (1993) 68 A Crim R 189
Spies v The Queen (2000) 201 CLR 603
Suresh v The Queen (1998) 72 ALJR 769
TKWJ v The Queen (2002) 212 CLR 124

PARTIES:
The Crown
Roseanne Catt

FILE NUMBER(S):
CCA 60487/01

COUNSEL:
W G Roser (Crown)
T Molomby SC (Appellant)

SOLICITORS:
Director of Public Prosecutions (Crown)
McGowan Lawyers (Appellant)

LOWER COURT JURISDICTION:

60487/01

McCLELLAN AJA
ADAMS J
SMART AJ

WEDNESDAY, 17 AUGUST 2005

REGINA v Roseanne CATT

JUDGMENT

1

McCLELLAN AJA : The appellant, Ms Roseanne Catt, petitioned the Governor pursuant to s 474B of the Crimes Act 1900 seeking a review of her conviction on eight counts. The Attorney-General, after considering the petition, referred the case to the Court of Criminal Appeal pursuant to s 474C(1)(b) of the Act. That section provides for the referral of the "whole case" to the Court of Criminal Appeal "to be dealt with as an appeal under the Criminal Appeal Act 1912.

2

After the case had been referred the appellant filed a notice of appeal which was subsequently amended. The amended notice identified the following grounds of appeal.

1. “

1. The convictions of the appellant on eight counts of the indictment presented against her are the result of miscarriage of justice which has two separate but related components:
(a) The former detective in charge of the case, Peter Thomas was at all relevant times a corrupt policeman, who was prepared to and did manufacture and invent the evidence upon which the convictions were based. The propensity of Peter Thomas towards corruption and the perversion of justice has been repeatedly demonstrated in other matters occurring both before and after the trial of the appellant;
(b) The whole course of the committal and trial process leading up to the convictions of the appellant was contaminated by the fact of the multiplicity of the charges being presented against the appellant at the same time with resulting unfair prejudice to her.
2. In relation to each of the charges on which the appellant was convicted, the conviction is, having regard to the evidence at the trial and the evidence now available, unreasonable and should not be permitted to stand

3. There is fresh evidence capable of establishing, taken alone or in conjunction with other evidence, the reasonable possibility that:

(a) the witness Marie Whalen was so unreliable as not to be accepted on contested matters.

(b) Det Sgt Thomas knew on 29 July 1989 that Mr Newell was going to collect from office premises at 2-8 Cornwall Street specimens of Mr Catt's consumables in order that they might be subjected to analysis.

(c) On or before 31 July 1989, and probably on 29 July 1989, Mr Newell informed Det Sgt Thomas of the advice of Dr Sandfield to the effect that the erratic behaviour being exhibited by Mr Catt may have been the result of overdoses of Lithium and a drug such as Rivotril in combination.

(d) Mr Newell had both a motive and an opportunity to contaminate the substances he removed from Mr Catt's refrigerator on 30 July 1989 before they were submitted for analysis.

(e) Mr Newell was motivated by antipathy towards Ms Catt and by sympathy towards Mr Catt to such an extent that he himself contaminated the liquids removed by him from Mr Catt's refrigerator on 30 July 1989 before they were submitted for analysis.

(f) The request for analysis for the presence of both Lithicarb and Clonazepam was made to the Government Analytical Laboratories when the milk and orange juice were delivered to the Laboratories on 10 August 1989.

(g) The request for analysis in respect of both substances was made by or with the knowledge of Det Sgt Thomas prior to 24 August 1989.

(h) Contrary to his sworn evidence to that effect, Det Paget did not find containers of Lithium and Rivotril in a black handbag in a drawer in the main bedroom at 2 Cornwall Street on 24 August 1989.

(j) The only container of Rivotril dispensed to Mr Catt in existence as at 24 August 1989 was that produced by Mr Newell to Crown prosecuting authorities on 14 May 1991 at the trial of Roseanne Catt.

(k) Mr Newell and Mr Catt did not find the container of Rivotril last-mentioned at 1 Cornwall Street on 5 September 1989 as Mr Newell claims.

(l) Det Sgt Thomas had an improper motive for securing the conviction of Ms Catt and of doing so by means which include the giving, or procuring the giving of evidence known to be untrue or not believed to be true.

(m) Det Sgt Thomas had a propensity to act in the way referred to in (l) above.

(n) Det Sgt Thomas put the revolver in the drawer where it was found by Const Cottee on 24 August 1989 in order to incriminate Ms Catt.

(o) Det Sgt Thomas used improper methods which were calculated to induce information or evidence to be given by potential witnesses, regardless of its truth, and that in doing so Det Sgt Thomas was motivated by bias against Ms Catt.

(p) Det Sgt Thomas offered an inducement to Ms Crista Van der Merwe to give evidence which was false or not believed to be true in order to secure the conviction of Mr Ramon Bracamonte of a criminal offence.

(q) Det Sgt Thomas gave false evidence before a magistrate in relation to the investigation of Mr Ramon Bracamonte and Ms Crista Van der Merwe.

(r) Mr Thomas, as an insurance investigator, offered a monetary bribe to a potential witness to give evidence which was false or not believed to be true in relation to the investigation of one Ms Margaret Nagy in connection with a fire.

3

This Court is required by s 474L of the Crimes Act to deal with the case in the same way as if "the convicted person had appealed against the conviction" under the Criminal Appeal Act . Acting pursuant to that Act this Court ordered that the factual issues in the appeal be remitted to a judge of a court of trial. Section 12(2) of the Act provides that such a remitter may be made for "determination" of the relevant issues.

4

For the purpose of the remitter the District Court was appointed as the court of trial and Davidson ADCJ conducted a hearing and provided a "judgment on Remitter by the Court of Criminal Appeal under section 12(2) Criminal Appeal Act 1912 for Determination of Factual Issues." Davidson ADCJ states in his judgment that he has proceeded on the basis that the referral of the "whole case" to the Court of Criminal Appeal throws open factual issues relating to both substantive questions of guilt and also whether there may have been a miscarriage of justice due to a failure of the trial process or procedure (see Greg James J "Report pursuant to Part 13A of the Crimes Act 1900 into the conviction of Ronald James Suey" 6 September 2003, paras 5-19-5.2A; Eastman v DPP (ACT) (2003) 77 ALJR 1122).

5

It has been necessary in order to explain the conclusion to which I have come to incorporate significant portions of the judgment of Davidson ADCJ in these reasons.

6
The appellant was tried on an indictment containing nine counts. The trial commenced on 13 May 1991 and verdicts were returned on 11 September 1991. She was convicted as charged on seven of the counts but acquitted on one, Count 8. On Count 5, the jury returned a verdict of guilty of attempt.

The indictment was in the following terms, omitting formal parts:

Count 1 (“The rock incident”): That Roseanne Catt on 2 May 1988 at Taree in the State of New South Wales maliciously did wound Barry Catt (s 35 Crimes Act).

Count 2 (“The perjury count”): That Roseanne Catt on 3 July 1989 at Taree in the State of New South Wales in the Local Court before Mr G P O’Keefe, Magistrate on an occasion when truth of the same was material did knowingly and willingly falsely swear in substance, as follows, that is to say, that she, Roseanne Catt, at no time struck Barry Catt with a rock (this is the count as amended by consent on 28 August 1991: s327 Crimes Act).

Count 3 (“The Swan’s Crossing incident”): That Roseanne Catt between 2 March and 30 March 1989 at Swan’s Crossing in the State of New South Wales, maliciously did wound Barry Catt (s 35 Crimes Act).

Count 4 (“The cricket bat/eucalyptus oil incident”): That Roseanne Catt on 5 May 1989 at Taree in the State of New South Wales did assault Barry Catt, thereby occasioning to him actual bodily harm (s 59 Crimes Act).

Count 5 (“The Lithium incident”): That Roseanne Catt between 1 May and 31 July 1989 at Taree in the State of New South Wales maliciously did cause to be taken by Barry Catt a noxious thing, namely, Lithium and thereby did endanger the life of the said Barry Catt (s 39 Crimes Act).

The jury acquitted Ms Catt on this count but convicted her of the alternative, i.e. attempting to cause to be taken by Mr Catt a noxious thing, namely Lithium with intent to injure Mr Catt (ss 40, 41, 344A and 427 Crimes Act 1900. See now s 162 Criminal Procedure Act 1986).

Count 6 ("Soliciting James Morris"): That Roseanne Catt on 28 July 1989 at Taree in the State of New South Wales did solicit James Morris to murder Barry Catt (s 26 Crimes Act).

Count 7 ("Soliciting Vernon Taylor"): That Roseanne Catt between 15 July and 16 August 1989 at Taree in the State of New South Wales did solicit Vernon Taylor to murder Barry Catt (s 26 Crimes Act).

Count 8 ("Encouraging Lesley O'Brien"): That Roseanne Catt on or about 24 June 1989 at Taree in the State of New South Wales did encourage Lesley O’Brien to murder Barry Catt (s 26 Crimes Act - acquitted).

Count 9 ("Possessing a pistol"): That Roseanne Catt on or about the 24 August 1989 at Taree in the State of New South Wales did have in her possession a pistol, namely a Hopkins and Alan .32 calibre revolver, she then not being a holder of a licence for such pistol (s 25(1) Firearms and Dangerous Weapons Act 1973).

7
On 18 October 1991 the appellant was sentenced by Mathews J to terms of imprisonment as follows:

On Counts 1, 3 and 4: concurrent sentences comprising a fixed term of 15 months to commence on 11 September 1991 (the date of verdict) and expiring on 10 December 1992;

On Count 2: a fixed term of 3 years commencing on 11 December 1992 and expiring on 10 December 1995;

On Count 5: a fixed term of 3 years commencing on 11 December 1995 and expiring on 10 December 1998;

On Count 6: a fixed term of 3 years and 6 months commencing on 11 December 1995 and expiring on 10 June 1999;

On Count 7: a minimum term of 6 years commencing on 11 December 1995 and expiring on 10 December 2001 with an additional term of 2 years from 11 December 2001 expiring on 10 December 2003;

On Count 9: a fixed term of 12 months commencing on 11 September 1991 and expiring on 10 September 1992;

8
The earliest date on which the appellant became eligible for parole was 10 December 2001.

9
On 6 August 2001 the appellant was released on bail pending her appeal. She has four months of her sentence still to serve.
The 1993 appeal

10

In 1993 the appellant appealed against her convictions and sentence. The appeals were dismissed on 10 June 1993: ( R v Roseanne Catt (1993) 68 A Crim R 189). The grounds of appeal were as follows:

Ground 1: The learned trial judge erred in admitting evidence of the finding of certain property at the home of the appellant upon the execution of a search warrant on 24 August 1989 (sep. jdgts. of 9 May 1991 and 2 June 1991). Abandoned;

Ground 2: Her Honour erred in admitting evidence of conversation said to have occurred between the appellant and the witness Shane Golds towards the end of 1988 (sep. jdgt. of 25 September 1991);

Ground 3: Her Honour erred in admitting evidence of the witness Amanda Joy Taylor concerning the appellant’s behaviour on an occasion in March 1988 (sep. jdgt. of 17 June 1991);

Ground 4: Her Honour erred in admitting evidence of the witness Charon (sic) Lee Napper suggesting that in April 1988 the appellant had forged certain documents (sep. jdgt. of 24 June 1991);

Ground 5: Her Honour erred in allowing evidence, in relation to the fifth count of the effect of Clonazepam (sep. jdgt. of 26 June 1991; and see T/T p1081-2). Abandoned;

Ground 6: Her Honour erred in declining to discharge the jury upon application made after certain matters were put to the appellant in cross-examination (sep. jdgt. of 2 August 1991);

Ground 7: Her Honour erred in directing that the trial be conducted upon the basis that the truth of the children’s allegation that the witness Barry Robert Catt had assaulted them sexually was not a matter for the jury to determine (sep. jdgt. of 27 August 1991; S/U p175-6, 206FF);

Ground 8: (a) There is fresh evidence bearing upon the credibility of the witness Peter Thomas (T1745ff.); (b) the unavailability of this evidence at the trial has caused a miscarriage of justice. Abandoned;

Ground 9: The verdicts of guilty are unsafe and unsatisfactory.

11
As I have indicated s 474C(1) requires the case in this Court to be dealt with as an appeal under the Criminal Appeal Act . Section 474L provides for this Court to deal with the case so referred, in the same way as if the person had appealed against the conviction under the Criminal Appeal Act.

12
The effect of these provisions in the circumstances of a previous appeal, as occurred in the present case, was considered by this Court in the matter of Johns (1999) 110 A Crim R 149. In his Honour's reasons for judgment Greg James J referred to the article by A Castles, "Executive References to a Court of Criminal Appeal" (1960) 34 ALJ 163 as providing an authoritative discussion of the relevant principles. His Honour described those principles in terms which are relevant to the present proceedings. His Honour said:

"It has been held that on such a reference the court was re-invested with jurisdiction notwithstanding an appellant had exercised and exhausted the ordinary right of appeal: Gunn (No 1) 43 SR (NSW) 23; but that the court was not called on to re-adjudicate upon any ground of appeal which had already been heard and disposed of unless some new matter arose (for example, fresh evidence) warranting a reconsideration ( Gunn (No 2)) (1942) 43 SR (NSW) 27). Mickelberg (1989) 167 CLR 259; 43 A Crim R 182, which confirmed the current test for the admissibility of fresh evidence on appeal, was itself an appeal from the Court of Criminal Appeal of Western Australia on a reference of the whole case under a similar provision. The jurisprudence developed as governing the reception of new and fresh evidence on appeal has been held to be applicable to these matters: Mickelberg; Davies and Cody (1937) 57 CLR 170. Mickelberg established that:

"Prima facie, the reference of the whole case required the Court of Criminal Appeal to consider the case in its entirety, subject only to the limitation that it 'be heard and determined ... as in the case of an appeal by a person convicted'. That limitation necessitates that the matter be determined by 'legal principles appropriate to an appeal': Ratten (1974) 131 CLR at 514, per Barwick CJ. See also R v. Gunn [No. 1] (1942) 43 SR (NSW) 23 at 25, per Jordan CJ and Allen, Allen and Winter (1910) 5 Crim. App. R. 225 at 226.

It has been held that, where the whole case is referred, the court may consider matters not relied upon in the petition ( R v. Gunn [No. 2] (1942) 43 SR (NSW) 27 at 31 and matters not specified in the reference ( Reg v. Chard [1984] AC 279. On the other hand, it has been said that, as a matter of practice, the considerations may be confined to those in the petition or the reference: see Re Matthews and Ford [1973] VR 199 at 201; Reg v. Chard [1984] AC at 292-293. And in R v. Gunn [No. 2] (1942) 43 SR (NSW) at 29 Jordan CJ. stated:

'In a case in which there has already been an appeal which has been disposed of on the merits ... the court, in the case of a reference such as the present, is not called upon to re-adjudicate upon any ground of appeal which has been already heard and disposed of, unless some new matter has come to light which makes a reconsideration of the ground necessary or desirable.'

The words of s 21 (a) of the Code, so far as they require 'the whole case ... [to] be heard and determined', permit of only one meaning. It is the whole case which must be passed upon by the application of legal principles appropriate to criminal appeals. That being so, the power to exclude matters from consideration is properly to be seen as an aspect of the inherent power of a court to control its own proceedings. That power will authorise the exclusion of issues which are frivolous or vexatious: see Jackson v. Sterling Industries Limited (1987) 162 CLR 612; Tringali v. Stewardson Stubbs & Collett Limited (1966) 66 SR (NSW) 335; Metropolitan Bank v.Pooley (1885) 10 App. Cas. 210. However, subject to an issue being properly excluded as frivolous or vexatious, it is, in our view, the duty of a court to which there has been a reference of the whole case to pronounce upon the whole case as presented."

13

As his Honour observed it is the duty of this Court to consider and determine the appeal having regard to the whole of the case as presented at the trial and the evidence received by Davidson ADCJ and his Honour's findings.

14

The applicability of r 4 of the Criminal Appeal Rules relating to admissions is replaced by s 474L and r 78. In so far as the appeal relates to matters of fact no leave is necessary, notwithstanding s 5 of the Criminal Appeal Act.

15
Substantial evidence was given in the hearing before Davidson ADCJ and his Honour made many findings of fact. Many of those findings are sought to be challenged by the Crown in this appeal in submissions which extend over hundreds of pages and include detailed references to various matters in the evidence. In many respects the submissions seek to persuade this Court that, having regard to all of the evidence which is now available, the Crown case in relation to each count is overwhelming.

16
The correct approach to be taken when a matter or issue is remitted to a court of trial for determination, was considered by this Court in Histollo Pty Ltd v Director-General of National Parks and Wildlife Service (1998) 45 NSWLR 661. The reasons for decision in that appeal make plain that an appeal to this Court lies with respect to any determination in relation to a matter of fact made by Davidson ADCJ. However, that appeal is confined to the right of appeal conferred by s 5 of the Criminal Appeal Act. Accordingly, the appeal is not by way of rehearing and this Court may not intervene unless satisfied that an error has occurred. This Court has expressed the relevant test in the following terms:
"Error may be demonstrated if there is no evidence to support a particular finding, or if the evidence is all one way, or if the judge has misdirected himself. But, unless error has first been established, this Court has no power to substitute its own findings for those of the trial judge." R v Simmons (1995) 79 A Crim R 31 at 35.

17

Accordingly, in so far as the Crown submissions seek to persuade this Court to come to a different view of the facts than was reached by Davidson ADCJ, unless appellable error is revealed, the submission must be rejected.

18
The appellant and Barry Catt first met in 1986 and were married on 14 August 1987. Prior to their marriage they had started living in a de facto relationship, first at Roseanne's residence in Cowan Road, Taree and later at Barry Catt's residence in Cornwall Street, Taree. Barry Catt was at the time a businessman who owned a number of properties and a successful panelbeating business, Catty's Body Repairs, in Cornwall Street, Taree. The Crown alleged that, from the beginning, Roseanne set about systematically to gain control of Barry Catt's assets and his business and that to do this she was prepared to have him either institutionalised or sent to gaol. Prior to meeting Roseanne he had spent a short time in a psychiatric hospital while being treated for severe stress. The Crown alleged that Roseanne took advantage of the situation already existing, provoked and encouraged bizarre behaviour in Barry Catt and disturbed the level of his medication in order to have him committed. Eleven days after the marriage Barry Catt was committed to a hospital in Newcastle following an incident in which Roseanne complained that he had been violent and abusive towards her and his children. He was diagnosed as suffering from mild manic depressive illness and advised to take Lithium tablets, a drug he continued to take thereafter. His condition settled and he was sent home after about a week. A few days later he was re-committed to the same institution, again after a complaint from Roseanne. This time he remained in hospital for three weeks before being discharged. After a few days at home he was again sent back to the hospital, and on this occasion a psychiatrist refused to admit him and sent him back to Taree. His only admission to a mental hospital thereafter was in June 1988 when he voluntarily attended the Northside Clinic for diagnostic purposes.

19
In time Roseanne began making allegations that Barry Catt was and had been sexually and physically assaulting his four children. The Crown alleged these allegations were made for the purpose of alienating Barry Catt from friends and associates and encouraging people to side with Roseanne. It was alleged to be the reason Roseanne gave to people for wanting him put away. The children, whose natural mother had left home in 1981, when they were quite young, were allegedly manipulated by Roseanne and confirmed the story of abuse. On 26 November 1990 Barry Catt was arraigned in the Supreme Court at Taree to answer charges of sexual assault of each of his four children. He was tried and acquitted.

20
When Roseanne moved into Cornwall Street, with Barry Catt's consent, she not only took over the running of the household but assumed effective control of his panelbeating business, leaving him to do only manual work on the floor of the workshop. The Crown alleged that Barry Catt never agreed to Roseanne being a partner. He said he had no idea until after the event that she had notified the various organisations involved with his business, such as the Department of Motor Transport, that she had become a partner. The Crown alleged that she forged his signature on a number of documents and also forged requests for the surrender of various insurance policies. Barry Catt's previous girlfriend, Charon Napper (Clarke), gave evidence that, contrary to what Roseanne alleged, she had never signed a surrender of insurance policies in her name. The Crown accepted that Roseanne had put money into the business. The amount she had injected was not agreed. The Crown alleged that Roseanne sought, for the purpose of Family Court proceedings heard in August 1989, to exaggerate her financial interest in and control of the business and denigrate its condition before she became involved with it.
21
After the events known as "the rock incident", a summons was taken out against Barry Catt for apprehended violence by the appellant and each of the four children. In consequence he moved out of the main Catt residence at 1 Cornwall Street and lived in the office on the other side of the road. According to him he continued to visit the appellant at No 1 but only at her request and usually late at night. His understanding of the order of apprehended violence, as explained to him by the appellant, was that he was prohibited from seeing her or the children at his own behest, but was permitted to do so if she or they requested it. In early February 1989 he was arrested and charged with the sexual assaults on his four children for which he was later acquitted. Despite this event, he said that he was continuing to see the appellant from time to time on an intimate basis, although only when she requested it.

Part 4 - An outline of the facts in relation to each count and the appellant's defence

22

It is convenient to summarise the nature of the evidence tendered at the trial on each count. I am indebted to the judgment of Sheller JA in the earlier appeal for a concise statement of the relevant material.

23
For reasons which did not emerge at the trial there was ill feeling between the appellant and Mary Warwick, Barry Catt's sister. On 2 May 1988 the appellant drove with her son, Peter Bridge, another apprentice at the panelbeating yard, Shane Golds, and the three older Catt children, Christopher, Sharon and Julie to Mary Warwick's house. According to both Shane Golds and Mary Warwick, on arrival the appellant abused Mrs Warwick claiming she had had sex with her own brother and that her two little girls were illegitimate. When Mary Warwick tried to close the security door the appellant slapped her on the face, took the keys from the security door and threw them into a rockery. The appellant and the others who had accompanied her there were back in her car when Barry Catt arrived in another vehicle. He had realised that something was amiss when he found that two apprentices and the appellant were absent from the panelbeating yard.

24
Barry Catt approached the appellant in her car, said something to her and turned the key to the off position. She yelled at him and hit him with the back of her hand. He retaliated in the same way. He then walked away and she followed him and started to pummel him on his back. He hit her again on the cheek, knocking her glasses off, and told her to wake up to herself. The Crown alleged that Shane Golds and Peter Bridge at the appellant's instigation attacked Barry Catt who fell down on all fours. The appellant picked up a heavy rock and struck Barry Catt who gave evidence of feeling the rock hitting his back and his head and hearing the appellant say "I'll fucking kill you, you cunt." She then threw the rock down, called her group off and drove away.

25
Barry Catt gave evidence that a neighbour called the police and took him to hospital where he had four stitches put into a gash on his head.

26
The Crown case at the trial was supported by Shane Golds. He had at first supported the appellant's account of the incident. Indeed, on 3 July 1989 he gave evidence for the appellant in assault proceedings brought by her. At the trial he said that his evidence on that occasion was false. He said that later on the day of the rock incident there was a meeting at the appellant's home at which the appellant encouraged Shane Golds, Peter Bridge and the Catt children to make statements that what occurred was not that the appellant hit Barry Catt with the rock but rather that Mary Warwick did. They made such statements. His reason for giving false evidence he said, was that the appellant had told him what he must say and had threatened him with the loss of his job if he did not. He said he was scared of the appellant who asked him some time after the rock incident, "Do you need any money to knock Barry off and if you don't, do you know of anyone else who will?"

27
The appellant's version of the incident given by her and each of the three children was that she had gone on Barry Catt's suggestion to visit Mary Warwick's house to sort out a disagreement which had arisen between them. She had the children with her rather than them being at school because Barry Catt had belted them the night before. The appellant claimed that it was Mary Warwick who was abusive, that no blows were struck between them and that they were on the verge of leaving when Barry Catt arrived and took the keys from her car and attacked her without provocation. The appellant alleged that Barry Catt was being restrained by the two boys when Mary Warwick picked up a rock from the rockery. She first tried to use the rock to strike at the appellant but missed. She then tried to hit the boys, but they ducked and the rock hit Barry Catt instead. The appellant denied that she had ever threatened Shane Golds or ever suggested that he give a false version of the events. The three older Catt children were called by the appellant and gave evidence supporting her version of events.

28
In her remarks on sentence Mathews J said:
"The jury's finding that Roseanne Catt was guilty of malicious wounding in relation to this incident shows that it accepted the Crown version and rejected the version given by the defence. And it must be said that this was not a surprising outcome in the light of the conflicting versions given at different times by some of the defence witnesses."

29
Immediately after the incident which formed the basis of the first charge, the appellant drove to the Taree Police Station and laid the complaint of assault against Barry Catt which came on for hearing in the Taree Local Court on 3 July 1989. The appellant as complainant gave sworn evidence in which she described the incident in much the same terms as she did subsequently at the trial. The appellant was charged with committing perjury at Taree Local Court on 3 July 1989; s 327 of the Crimes Act. The appellant denied that what she said on oath at Taree Local Court about the rock incident was false.

30
In her remarks on sentence Mathews J said:
"Her conviction in relation to this charge means that the jury accepted not only that her version of the events of 2 May was a false one, but that it was deliberately false."

31
The Crown alleged that on 12 March 1989 the appellant and Barry Catt went for a picnic together at Swans Crossing. At one stage during the picnic they were lying in their swimming costumes on a rug drinking stout when the conversation turned to Mary Warwick. Barry Catt gave evidence that the appellant then became very angry and started to drive a knife she was using to cut lemons through the rug. Barry Catt told her to stop, to which she said words to the effect of "I'll fucking stab you too" and proceeded to prod him twice with the knife and then drove the knife into his left side just below his ribs. He quickly walked off and approached a man who was having a barbecue some distance away. The Crown called this man, Garry Jeffrey, who gave evidence that he had given Barry Catt a t-shirt to put over his bleeding wound. Meanwhile the appellant having loaded up the car drove up to Barry Catt and told him to get in. He refused saying "No, you will stab me again." He then walked and hitchhiked home. Later that day the appellant bathed his wound and advised him it did not need stitching. The wound became infected. The Crown called evidence from Dr Goddard who came to the workshop as a customer and remembers Barry Catt showing him the wound.

32
The appellant denied inviting Barry Catt to a picnic at Swans Crossing and testified that Barry Catt followed her to Port Macquarie on the weekend this incident occurred. She claimed she was lying on the ground at Swans Crossing when Barry Catt approached her and started stabbing the rug. She put her foot out and he fell backwards or onto his side. The appellant in evidence would not concede that Barry Catt had any injury at all that day. If he did she claimed to know nothing about it.

33
At the trial more evidence was directed to what occurred the night before the Swans Crossing incident than to the incident itself. In particular the Crown alleged that the appellant had deliberately attempted to manipulate evidence which might otherwise be available for use against her and had attempted to persuade the proprietor of a motel, Janet Eslick, where she and Barry Catt had stayed on the previous night, 11 March, to say that she had stayed there alone. This was to support her version of events that she and Barry Catt had not gone to Swans Crossing together on 12 March, but rather that she had gone there alone and that he followed her and arrived unexpectedly. The appellant relied upon this additional evidence as showing that Barry Catt was unworthy of credibility and was being fed information by the police as to the details of the evidence during the course of the trial. In her remarks on sentence Mathews J said:
"The jury's verdict indicates that it accepted Barry Catt's evidence, and also, presumably, that of the motel proprietor. This raises serious questions about the prisoner's attempts to manipulate evidence which she feared might be used against her. This is not a matter which can be used in aggravation of sentence, but it certainly deprives her of any leniency by reason of contrition or remorse."

34

The Crown alleged that on this occasion the appellant assaulted Barry Catt with a cricket bat. He gave evidence that at about 11 pm he was talking to some friends on the telephone in his office when the appellant intercepted the call by picking up the extension in the house. When she found out who it was he was talking to, she said "I don't want you talking to that slut." Barry Catt said he hung up on the appellant and continued talking. Within five minutes the appellant and his children appeared. The appellant grabbed the telephone.

35

The Crown led evidence from the caller, Jan O'Brien, of her recollection of the appellant's suddenly coming onto the telephone and starting to abuse her. The appellant said what a sick man Barry Catt was and put Tony and then Christopher Catt on the line to tell Jan O'Brien identical versions of what their father had done to them. After the telephone conversation the appellant grabbed the cricket bat from Christopher and in an underarm movement swung it at Barry Catt's head, hitting him under his right eye and saying "I'll kill you, you cunt." Barry Catt's eye began to bleed. At the time he was carrying a small bottle of eucalyptus oil which he was using for some medicinal purpose for his lips. He dropped the bottle, spilling the contents. He then left the premises and drove to a friend's house.

36

The Crown called evidence from Max French who remembered Barry Catt arriving one night with an injured eye. Barry Catt eventually returned home that night but was woken up in the early hours of the next morning by the appellant and the children who had broken into the office. The appellant struck him around the face, causing his injured eye to bleed again and then left. The appellant called the police who came to the premises, woke Barry Catt up and took him to the hospital and then the police station where he was charged with assault. He spent the weekend in the police cell and was not released until Monday afternoon over two days after his arrest. The police at this stage believed the appellant's story that Barry Catt had attacked the children and her and thrown the eucalyptus oil into Tony Catt's eyes.

37

The appellant denied intercepting telephone calls and said the telephone system between the house and the office did not enable her to do so. On her version of the incident, Christopher and Tony Catt went over to the office to get some supplies for homework, thinking Barry Catt was out. The appellant heard screaming and went over to the office and saw the two boys and Barry Catt fighting. Barry Catt said he was going to kill the boys. He picked up a bottle of eucalyptus oil off the desk, and threw it, catching Tony and her in the eye. They had blurred visions but struggled back to the house. The appellant then rang the hospital and tended to Tony's eyes. She denied ever seeing a cricket bat on that occasion. The children gave evidence supporting her version of the events. The police gave evidence locating a broken bottle on the patio.

38

Of this incident Mathews J said in her remarks on sentence:

"This was the second occasion on which the prisoner made allegations of violence against her husband, notwithstanding that it was he who had sustained obvious physical injury in the altercation between them. There being no charge relating to this aspect of the matter, however, I can only use it as again indicating a lack of contrition or remorse following this assault with the cricket bat."

39
Between May and August 1989 there was little direct contact between the appellant and Barry Catt. However, a number of Barry Catt's friends and associates believed that he was behaving strangely. He was said to be exhibiting symptoms of intoxication but was not smelling of alcohol. One of his friends, Adrian Newell, became suspicious about the appellant's condition. Mr Newell was concerned that the Taree police might be less than objective about matters involving the appellant, for she had frequently boasted of her influence with the local police. He thus travelled to Sydney and visited the ICAC and later Police Headquarters in Sydney in an endeavour to find an independent police officer who might investigate the appellant's actions towards her husband. As a result of these inquiries, Det Sgt Peter Thomas, as he then was (he has since left the police force) was assigned to take charge of the inquiry. It was apparent at the time of the trial that because of previous dealings with each other Det Sgt Thomas was not an appropriate police officer to have charge of the investigation. In her remarks on sentence Mathews J said of this situation:
"This was, in my view, an unfortunate decision on the part of his superior officers. For it should have been known to them at that stage that Peter Thomas and Roseanne Catt had already very thoroughly locked swords. In 1983, Detective Sergeant Thomas had been in charge of an investigation which had led to Roseanne Catt being charged with arson. She was later no-billed on the matter, but had thereafter made numerous complaints to the Ombudsman and the Police Internal Affairs Department about Detective Sergeant Thomas' behaviour. As I understand it, none of these complaints had been substantiated, but it had led to a situation in which Detective Sergeant Thomas had every reason to harbour animosity towards Mrs Catt. The appointment of a person with this background to head an investigation of this nature had the potential to undermine the integrity of the investigation as a whole, regardless of its real merits. It was thus, as I say, a most unwise decision. In this case, as I shall mention later, it provided Mrs Catt with ammunition to allege, as she did at her trial, that she was the innocent victim of a conspiracy between Barry Catt and Detective Sergeant Thomas, an allegation which would have been virtually impossible to make had a truly objective police officer been assigned to head the investigation."

40

A central feature of the present appeal is the actions of Det Sgt Thomas. Significant elements of the evidence tendered before Davidson ADCJ relate to his actions and statements. The evidence which is now available adds significantly to the evidence which could support the appellant's submission that she was the object of a conspiracy between Det Sgt Thomas and Barry Catt.

41

On Sunday, 30 July 1989, the day before Barry Catt was due to appear at the Local Court on the committal proceedings for the sexual assault charges, Adrian Newell gained access to the office premises he was using as a dwelling. In the refrigerator he found containers of milk, chocolate milk and orange juice. One of the side effects of Lithium in 1987 was excessive thirst. Ever since Barry Catt had commenced taking this drug he had consumed very large quantities of liquid, frequently in the form of milk and chocolate milk. According to him the appellant kept the refrigerator stocked with these items. Mr Newell removed the containers of liquid, kept them overnight in a refrigerator at his home, and the next day handed them to Det Sgt Thomas. He in turn delivered them to the Government Analyst's Laboratory at Lidcombe. There they were analysed and found to contain substantial quantities of Lithium. A later analysis, at the end of August 1989, also revealed quantities of Clonazepam, this being the active constituent of the drug Rivotril.

42

The appellant was charged with causing a noxious thing to be taken by Barry Catt; s 39 of the Crimes Act. The Crown alleged that during the period from May to July 1989 the appellant interfered with Barry Catt's medication and caused him to take more Lithium and Clonazepam than he should have been taking. The Crown alleged that the appellant did this by spiking the contents of bottles of milk, Moove and orange juice contained in the office refrigerator. At that time Barry Catt was the only person using the refrigerator. The appellant knew that Barry Catt was in the habit of drinking large quantities of liquids because of the medication he had to take. The Crown relied on statements made by the appellant to various people and the appellant's attitude towards Barry Catt to prove this count. Evidence was also led from Amanda Marlin (nee Taylor) that in March 1988 the appellant poured a glass of wine and added two white tablets which she obtained from her handbag, placed the glass on a table in the lounge room of the family home and said "I hope it kills him." The Crown said that this was an apt example of the appellant's hostile attitude towards Barry Catt. Det Paget gave evidence of finding bottles of Lithicarb and Rivotril in a purse in a drawer in the appellant's bedroom when her home was searched on 24 August 1989.

43

The appellant's case was that she was the innocent victim of a conspiracy to mount a number of false charges against her by Barry Catt and former Det Sgt Peter Thomas. Barry Catt's purpose was to get himself out of court cases which he was then facing involving sexual allegations against his children. Peter Thomas' motive was revenge arising out of a prior antagonistic relationship with the appellant.

44

The only direct evidence of any direct collaboration between Peter Thomas and Barry Catt came from Noel Jago who gave evidence for the appellant about a conversation he had had with Barry Catt. He said that Barry Catt had told him that he had arranged with Det Thomas to switch all the charges back the other way against Roseanne. This was vehemently denied by Barry Catt. The appellant also gave evidence of a telephone call she received from Barry Catt telling her that he and Thomas had worked everything out and all the charges were going to be changed from him to her. The appellant tried to establish that Peter Thomas and Barry Catt's relationship went beyond a business relationship. The Catt children testified that Peter Thomas took part in orgies with other police and them at Cornwall Street on numerous occasions and was always drinking with Barry Catt. Noel Jago said that Peter Thomas used to bring police vehicles to the shop to be repaired which were never paid for.

45

The appellant alleged in her defence that Barry Catt and Peter Thomas had good reason to concoct the charges against her and were able to do so with the assistance of Adrian Newell. The appellant alleged that Adrian Newell and Peter Thomas both had the opportunity to tamper with the liquid in the containers after they left the refrigerator and that the drugs were put there as part of the conspiracy to turn the tables against her. She denied that she had the bottles of pills in her purse and denied that Det Paget, who located them during the search, went anywhere near her dressing table, where her handbag was.

46

The jury acquitted her of the offence as charged but found her guilty of an alternate charge, namely of attempting to cause Barry Catt to take a noxious thing with intent to injure him. In her remarks on sentence Mathews J said:

"It follows that the jury must have been satisfied beyond reasonable doubt that it was Roseanne Catt who placed the Lithium in the liquids which Adrian Newell removed. However, they were not satisfied that she had actually caused Barry Catt to take Lithium outside his normal medication at any other time. Furthermore they were not satisfied that her motivation in attempting to poison him on this occasion was anything other than to cause him injury. This is a significant matter on sentence, for had Mrs Catt been convicted of the charge as laid in the indictment, she would have faced a lengthy term of imprisonment in relation to this matter alone."

47
The Crown called James Morris to give evidence that on 28 July 1989 at Taree RSL Club the appellant propositioned him to kill Barry Catt. James Morris said he had previously never met Roseanne Catt and was spending the night drinking with his sister when the appellant started talking to them. Both the appellant and Morris had consumed a quantity of alcohol at the time.

48
The appellant told them her husband was a monster who had sexually assaulted his children and then asked Morris if he wanted to make some money. When asked why, she said: "To do a job on my husband - a good job on my husband." She mentioned that she would pay him $10,000 to break Barry Catt's arms and legs and that he would get an extra bonus if he killed him. Mr Morris' sister, Sandra Ridgeway, was called by the Crown to give evidence and confirmed this conversation. Mr Morris said he saw the appellant about a week later and she asked had he thought about her proposition. She added that she would like it to be done as soon as possible. The matter, however, was taken no further.

49
The appellant denied the conversations with James Morris. She said she was at the club that night with Lucy Parkinson and others and remembered Lucy talking to someone called Sandra, but, she herself did not talk to Sandra Ridgeway, nor did she leave the table to speak to anyone at the bar, let alone James Morris. She also denied that she owned the sort of clothing which was described by Mr Morris and his sister. The appellant called Lucy Parkinson who said that as far as she knew there was no conversation between the appellant and James Morris. She also described James Morris as being very drunk. The appellant's counsel commented to the jury that it was an extraordinary conversation to take place between two people who had never met before. In her remarks on sentence Mathews J said:
"Nevertheless the jury was clearly satisfied that this incident took place as described by Mr Morris. I can only assume it indicates the extent of the prisoner's recklessness at this late stage of her relationship with her husband."

50
Mr Vernon Taylor gave evidence of the circumstances in which he began associating with the appellant in late 1988 or early 1989 and visiting her at the car yard to photograph her Corvette. According to his evidence he spent a considerable amount of time at Cornwall Street. He used to call around to the office on two or three afternoons a week. He said the appellant began to tell him more and more about how Barry Catt was sexually molesting his children.

51
Taylor was a professional kangaroo shooter and the appellant asked him at one stage did he have any guns, to which he replied yes. Some weeks later she asked if he would do a job for her. She said: "I want you to bump him off for me because if he is out of the road, it is all finished and there will be no more problems." Taylor knew that she was referring to Barry Catt. The constant thread in all her conversations, he said, was that Barry Catt was a monster who had sexually assaulted his children and that they would be better off without him. She went on to say that she would pay him $20,000 if he would do the job. She propositioned him a couple of times but he eventually said that he was not interested in making money that way. She told him not to tell anyone about it and mentioned that if he did she would know about it or if he went to the police she would know because she had friends there who would do anything for her.
52
The appellant alleged and Vernon Taylor admitted in cross examination that he was "sweet" on her and this was the reason he visited her workshop so often. The appellant's case was that Taylor's motivation for lying about the alleged conversation was that he was in fact a spurned lover.

53
Barry Catt gave evidence of overhearing a conversation at Taree Leagues Club between the appellant and Leslie O'Brien wherein O'Brien promised to shoot Barry Catt himself and get rid of the body, if she could entice him up to the farm. The Crown did not call O'Brien.

54
The appellant agreed that she had been at the Leagues Club on the relevant night. She had gone there with O'Brien after attending a wedding. However, from the moment they arrived she alleged that he stood at the bar talking to someone else while she stayed at the table talking to her friends. Accordingly, there was no explanation as to how Barry Catt could have seen her talking to O'Brien.

56
On 24 August 1989 the appellant was arrested. The Crown alleged that when the police executed a search warrant at the Catt residence on that date they found an unlicensed pistol in her en suite bathroom. Barry Catt gave evidence of an occasion when, a couple of months before they were married, the appellant had first shown him this pistol. The Crown also called evidence from Barry O'Brien and Beverly Lyons of conversations with the appellant when she talked about her gun.

57
The appellant denied she ever had a pistol or that she had ever shown one to Barry Catt or talked to Beverly Lyons about her gun. When the police located it during the search the Crown accepted that she said "What is it, a toy. I've never seen it before." The defence was that the police had planted the pistol or more particularly that Det Thomas had. She argued that any number of people had access to the en suite bathroom where it was located.

58
In her remarks on sentence Mathews J said:

59
The nature of the defence put by the appellant at the trial is significant in the determination of the present proceedings. The appellant denied each of the charges and gave an account of the relevant facts at odds with the Crown case. However, of greater significance is the fact that the appellant said that the whole of the Crown case against her was a concoction, being the product of a conspiracy between Barry Catt and the police, in particular, Det Sgt Thomas. The appellant said that they deliberately manufactured the charges for the sole purpose of assisting Barry Catt in the various court proceedings which he was facing at the time, and which he then appeared to be losing.

60
Accordingly, as Mathews J pointed out at the trial, the jury was presented with two clear alternatives. Either the appellant was a manipulative, evil woman, as the Crown contended, or she was the innocent victim of a conspiracy, as the defence contended. There was no intermediate version on the evidence as presented to the jury.
61
The verdict of guilty on eight of the nine counts meant that the jury essentially accepted the Crown version of events and rejected the defence case of a conspiracy. However, those verdicts now require careful reconsideration having regard to the fact that there is significant fresh evidence available which, if accepted by a jury, would support the conspiracy allegation.

62
The appellant submits to this Court that, because of the fresh evidence tendered and admitted before Davidson ADCJ and the findings of fact which his Honour has made, the conviction in relation to each count must now be quashed. Although some of the fresh evidence is directly relevant only to an individual count, it is submitted that, because all of the counts were heard together, the difficulties which are now apparent with the evidence in relation to any particular count affects the reliability of the jury's verdict in relation to the others. The essential submission is that because each count required the jury to reach a view as to the appellant's credit and determine whether the appellant's evidence as to the relevant events should be rejected, and because the fresh evidence raises serious doubts as to the Crown case, on at least some of the counts and, furthermore, if accepted would be consistent with the conspiracy alleged by the defence, a jury properly instructed and, having regard to the fresh evidence may have come to a different view in relation to all of the counts.

63
The fresh evidence comes from a number of sources and must be analysed separately. It includes the evidence of the Catt children which is now unfavourable to the appellant, medical evidence with respect to the allegation that the children were sexually abused, evidence with respect to the police investigation of the matters, evidence as to the method of investigation of the police officer in charge of the matter, Det Sgt Thomas evidence of later statements by Det Sgt Thomas as to his actions in the investigation, and other evidence which casts doubt on evidence which was apparently accepted by the jury at the trial.

64
The evidence tendered before Davidson ADCJ related both to specific counts and to issues of general relevance. Before considering the evidentiary position of each count it is appropriate to consider the evidence which has general significance.

65
It will be obvious that the defence case at the trial carried significant risks. If the jury concluded that the "conspiracy theory" had no basis it would be likely to influence the view which it formed about the credit of the appellant and could affect its conclusion in relation to each count, even those counts where the involvement of Det Sgt Thomas in the gathering of evidence was minimal.

Was there a conspiracy to create a case? - evidence with respect to Det Sgt Thomas

66

Evidence was tendered before Davidson ADCJ in relation to the methods which Det Sgt Thomas employed both as a policeman and as a private enquiry agent when seeking evidence in relation to events which may have involved a crime. Evidence was also tendered of statements which he has made since the trial in relation to his investigation of the appellant and the collection of evidence for the brief which was prepared for the prosecution. The evidence is directly relevant to at least counts five and nine and it is submitted by the appellant that, if accepted by a jury, raises a relevant doubt as to whether the Crown evidence in relation to any of the counts could be accepted.

67

There were a number of unusual aspects of the investigation. They are discussed by Davidson ADCJ and only a brief reference to them is now necessary.

68
The investigation was carried out from 27 Milligan Street, a home owned by a member of the Newell family, and not the Taree police station. Det Sgt Thomas said that he did not trust the Taree police. This, to say the least, was odd and had the consequence that the activities of the investigating police were isolated from the normal casual oversight which would occur if conducted in a conventional manner.

69
An unusual sequence of events relates to an apparent forcible entry of the house of the appellant's son, Mr Bridge. On 15 September 1989, and after the appellant had been granted bail she, and others alleged that they saw Mr Catt and one of his employees, Mr Barry O'Brien running from Mr Bridge's house. There were signs of forcible entry of the house and although the matter was reported to the police no action was taken. Mr Catt was interviewed by the police and denied any involvement in the event. However, Mr O'Brien was never interviewed. Davidson ADCJ finds that this was apparently due to an instruction issued by Det Sgt Thomas.

70
Mr O'Brien gave evidence at the appellant's trial which was adverse to her both generally and particularly with respect to counts 5 and 9.

71
When cross examined at the Section 12 hearing about the alleged break in, his dealings with Det Sgt Thomas, and his evidence at the trial, Mr O'Brien at times gave inconsistent testimony. Having regard to all of the evidence Davidson ADCJ concluded that:

72

The evidence upon which this finding was based was available at the trial and accordingly, it merely provides the background for the assessment of any fresh evidence. However, it becomes one of a number of significant pieces of evidence which together raise serious questions in relation to the appellant's case that there was a conspiracy against her.

73
Davidson ADCJ relates the circumstances of the issue and service of a search warrant in respect of the premises at 1 Cornwall Street. Although objection was taken at the trial to evidence being given of materials seized in purported compliance with the warrant, the evidence was admitted. A challenge to the trial judge's ruling was not pursued on the appeal.

74
Irregularities with respect to the execution of search warrants and the disposition of property seized pursuant to them were also raised. In relation to these matters Davidson ADCJ draws an inference "adverse to Det Sgt Thomas from the evidence in relation to the disposition of some of the property in purported compliance with the warrant."

75
However, again this evidence, not being fresh evidence, only contributes to the background material in relation to the appeal.
The appellant's bail applications - criticism by Allen J

76
Davidson ADCJ reviewed the material in relation to the appellant's bail applications, in particular, the occasion on 22 September 1989 when her private prosecution of Mr Catt in respect of the rock incident was due to commence and she was arrested for alleged breach of her bail conditions. In relation to these events Davidson ADCJ was extremely critical of Det Sgt Thomas. His Honour said that "whether or not Ms Catt's case had merit, it was lawfully before a court, the authority of which was flouted."

77
Both Allen J, who dealt with various bail applications made by the appellant and Mathews J, at the trial, commented adversely on Det Sgt Thomas in relation to the events surrounding bail matters. However, Davidson ADCJ concludes that the relevant material was before, or capable of being before, the jury. His Honour concluded:

78

As a result of the criticisms by Allen J Det Sgt Thomas was directed not to do any further work on the Catt matters. However, he did not obey that directive and Davidson ADCJ formed the opinion that "it is likely that he persisted in being so involved for unprofessional and improper reasons."

79
There was evidence available at the time of the trial and considered by Davidson ADCJ of attempts by Det Sgt Thomas to damage the appellant by complaints made about her and her association with a former Attorney General and Allen J. The allegations were entirely baseless.

80
Davidson ADCJ formed the view that the letters which Det Sgt Thomas wrote making the various allegations were an indication of "his propensity to improperly use his office to damage Ms Catt irrespective of the risk of gratuitous collateral damage to others." His Honour also said that "it indicates a lack of objectivity having descended into malice and abuse of power."

81
A number of witnesses were called at the Section 12 hearing on the question whether Det Sgt Thomas, either as a police officer or insurance investigator, had a propensity to bring improper pressure to bear on prospective witnesses and others. His Honour concluded that there was evidence which, if accepted, could lead to a conclusion that Det Sgt Thomas had applied pressure to Ms Marie Whalen, Mr Frank Farrar, Dr Richardson, Mr Barry O'Brien, Mr Michael Jones, Mr George Baird, Mr Shane Golds and Mr James Morris. It will be necessary to examine his Honour's findings with respect to some of these persons in detail.
82
The submission for the appellant is in effect that, if called at the trial, this evidence would have thrown new light favourable to the appellant on the evidence already before the jury as to the investigative methods of Det Sgt Thomas, particularly as to the evidence of important witnesses such as Ms Whalen, Mr Golds and Mr Morris, but also as to the finding of the revolver and the part Det Sgt Thomas played in relation to the investigation leading to the charge in Count 5.

83
Mr Bates said that in the 1980s he had been the licensee of hotels at Moree and Lawrence. The Lawrence Hotel had been leased to a man named Mr Ray Coucher. In 1987 the hotel burned down and, although insured, it appears that the insurer had gone into liquidation and no claim in respect of that fire was met.

84
As a consequence of the fire, Mr Bates said that he had been charged by Det Sgt Thomas with arson. Twelve months later the charge was “no billed”.

86
Davidson ADCJ made various findings in relation to issues involving Mr Bracamonte and Ms Van der Merwe. Neither Mr Bracamonte nor Ms Van der Merwe was called at the trial, the matter not coming to light until after its conclusion. Nor was either of them called at the section 12 hearing. The facts established came in documentary form.

87
In an affidavit submitted in support of the granting of the petition, Mr Harrison, Crown Prosecutor, deposed that he acted for the Crown in the trial of Mr Bracamonte and Ms Van der Merwe who were charged with damaging a building with intent to gain financial advantage.

88
Other evidence establishes that the building had been a restaurant operated by the accused jointly at the time of the alleged offence. Ms Van der Merwe was then Mr Bracamonte’s fiancé and they subsequently married.

89
The trial was listed to commence on 27 July 1992. One of the principal issues was to be whether the accused were in fact at their domestic premises and away from the restaurant building when the bomb exploded.

90
Mr Harrison deposed that on 13 July 1992, solicitors for each of the accused saw him in chambers. They produced a copy of what purports to be the transcript of an electronically recorded conversation which Davidson ADCJ was satisfied took place between Ms Van der Merwe and Det Sgt Thomas on 31 May 1989.

91
Det Sgt Thomas was one of the police officers involved in investigating the matter. He had given evidence at the committal proceedings and was due to give evidence if called at the forthcoming trial as was his colleague, Det Connolly. Mr Harrison elected not to call either of these officers.

92
Notwithstanding the absence of witnesses to the issue, Davidson ADCJ indicated that he was satisfied on the basis of Mr Harrison’s evidence that the transcript which was tendered is sufficiently reliable as a source of evidence from which to draw inferences and base conclusions.

93
The transcript attributes the following words to Det Sgt Thomas which were addressed to Ms Van der Merwe, “Ramon (Bracamonte) did it, Ramon did it. There’s no risk in the world. How he did it I’m not sure. I don’t know whether you were there or you weren’t there but I know you knew about it. You helped him set this thing up”. Further words are attributed to him including an assertion that Ms Van der Merwe was the “ringleader of it”. He states, “You know you’re in heaps of big shit Crista (Van der Merwe), I The transcript attributes the following words to Det Sgt Thomas which were addressed to Ms Van der Merwe, “Ramon (Bracamonte) did it, Ramon did it. There’s no risk in the world. How he did it I’m not sure. I don’t know whether you were there or you weren’t there but I know you knew about it. You helped him set this thing up”. Further words are attributed to him including an assertion that Ms Van der Merwe was the “ringleader of it”. He states, “You know you’re in heaps of big shit Crista (Van der Merwe), I’ll tell you how”. Ms Van der Merwe is then recorded as denying that she had done anything and Det Sgt Thomas responds that “the whole thing’s been set up to defraud the insurance company and you played a major part in it”.

94
Ms Van der Merwe then enquires of Det Sgt Thomas, “Well, you tell me more about the deal” to which he responds, “Well what are you going to do – the deal is this – you can walk out if you (give?) me Ramon up. That’s it."

95
Having spoken of the “deal”, Det Sgt Thomas is then recorded as indicating how it might be implemented.

"Det Sgt Thomas: I will go to the court and say look…..

96

Det Sgt Thomas describes Mr Bracamonte as a “grub” and a “dead set bastard”. He states, “In the long run we will shake the life out of both of you because – I can never guarantee what the court will do to you, but by the Christ there is a lot we can do to you and you come over Crista, as a painted lady – Crista the ringleader”. Ms Van der Merwe challenged the truth of this statement. Det Sgt Thomas proceeded, “But it looks that way. You’re the one who effects the insurance increases – you’re the one who does the books”.

97

At page 6 of the transcript, Det Sgt Thomas is recorded as saying, “I’m prepared to do this. You tell me exactly what you know about it and what happened and how he did it and I will type up a report to the Attorney-General now and at the time we go to court and say, I want the matter to be adjourned until the Attorney-General will make a decision and this lady At page 6 of the transcript, Det Sgt Thomas is recorded as saying, “I’m prepared to do this. You tell me exactly what you know about it and what happened and how he did it and I will type up a report to the Attorney-General now and at the time we go to court and say, I want the matter to be adjourned until the Attorney-General will make a decision and this lady’s given an undertaking to give evidence against that bloke there and I am seeking an approval to withdraw the charge”. Ms Van der Merwe asks for time to think about it “because I don’t have any information that can implicate Ramon”.

"Det Sgt Thomas: You know how much you know about Ramon. I don’t know how much you haven’t told me, but you’ve got to cut your losses. I don’t care if you were involved. Just tell me you weren’t. Only Ramon did it and I don’t care what…..even tell me – this is what we did, this is what we talked about”.
Ms Van der Merwe: But I can’t lie”.

98

At page 7, Ms Van der Merwe: “Ramon never discussed the actual bombing with me….”.

99

At page 8, Det Sgt Thomas after Ms Van der Merwe indicated that she would speak to her solicitor, “You can mention this Crista – if you give me the evidence I’m looking for against Ramon and that’s telling me everything you know about it and I’m satisfied with it, I’ll make representations to……change his mind and get you indemnify to defer prosecution (sic). But you’ve got to give me Ramon and anybody else who might be involved”.

Ms Van der Merwe: If I don’t know that part?.
Det Sgt Thomas: Just tell me the truth. Tell me how it might have been how it might have happened”.

100

At page 9 of the transcript, Det Sgt Thomas advised Ms Van der Merwe to go to a “completely independent” solicitor and say “can the police do it”.

101

Davidson ADCJ points out that it is not uncommon for the police to “do a deal” with an accomplice who is subsequently called as a witness in the Crown’s case against the co-accused.

102

Such a witness may be given an indemnity from prosecution or at least a “use” undertaking (s19 Such a witness may be given an indemnity from prosecution or at least a “use” undertaking (s19 Director ofPublic ProsecutionsAct 1986). However, such a witness should be either already dealt with for his/her part in the offence or a nolle prosequi entered (R v Grant & Ors (1944) 30 Cr App R 99 ; R v Norfolk Quarter Sessions, ex parte Brunson (1953) 37 Cr App R 6; c/f R v Robert Smith (1924) 18 Cr App R 19; but see now ss17 and 165(1)(d) Evidence Act 1995).

103

Davidson ADCJ points out that current practice in New South Wales seems to be that an indemnity from prosecution or a “use” undertaking together with an appropriate warning under s165 of the Evidence Act 1995 is regarded as sufficient. Sometimes no indemnity or undertaking is given, in which case privilege against self-incrimination is raised, reliance is then placed by the Crown on the court granting a Certificate under s128 of the Evidence Act 1995.

104

Davidson ADCJ expressed conclusions in relation to this material in the following terms:

"The issue is whether on a reasonable interpretation the contents of H.Ex L ("the transcript") may be regarded as an exhortation, express or implied, by Det Sgt Thomas to Ms Van der Merwe that she should provide information to the police as the basis for later evidence on oath or affirmation, regardless of its truth or whether she believed it to be true, in return for her not being prosecuted.

The portions of the document which tend to support that proposition are those in which she makes it clear that she had no information which could implicate Mr Bracamonte but nevertheless Det Sgt Thomas continues to press her to “give him up” and at one point said, “I don’t care if you were involved, just tell me you weren’t”. The passage “just tell me the truth, tell me where it might have been, how it might have happened” immediately after Ms Van der Merwe had asked rhetorically what would be her position if she did not know who “might be involved” also tends to be indicative of an attitude of Det Sgt Thomas that he was not concerned about the truth of any statement Ms Van der Merwe might have made as a witness provided it did implicate Mr Bracamonte.

On the other hand Det Sgt Thomas is recorded a number of times as having indicated to Ms Van der Merwe that he wanted “the truth” from her and his invitation to her that she consult a “totally independent” solicitor before deciding to make a statement tends to militate against the position for which Mr Molomby of counsel for Ms Catt contends. On the other hand Det Sgt Thomas is recorded a number of times as having indicated to Ms Van der Merwe that he wanted “the truth” from her and his invitation to her that she consult a “totally independent” solicitor before deciding to make a statement tends to militate against the position for which Mr Molomby of counsel for Ms Catt contends.
The conversation recorded although ambiguous in places, is capable of supporting a conclusion adverse to Mr Thomas of complicity in a serious criminal offence. It supports the contention that Det Sgt Thomas had a propensity to apply pressure by way of promise as well as threat to potential witnesses in a way calculated to produce false evidence. This further supports the conclusion that he may have exhibited that propensity in the Roseanne Catt investigation and trial."

105

I accept the conclusion of Davidson ADCJ in respect of this evidence. The conversation raises serious issues with respect to the propensity of Det Sgt Thomas to pressure witnesses to provide false evidence. There was also evidence before Davidson ADCJ which his Honour found suggests that Det Sgt Thomas may have committed perjury at the committal proceedings of Mr Bracamonte and Ms Van der Merwe. This material would only be relevant if Det Sgt Thomas gave evidence and is not directly relevant to the issues which must be resolved in this appeal.

106
Davidson ADCJ received evidence relating to the investigation of the fire which on 12 June 1999 destroyed the Royal Hotel at Monto in Queensland. His Honour's account of the evidence is as follows:

After the fire Ms Nagy, a licensee of the hotel jointly with her husband George, said she was contacted by Mr Thomas who was then an insurance investigator. At that time she was separated from her husband. She said in evidence at the section 12 hearing that Mr Thomas had said to her words to the effect, “If you tell me that your husband torched the pub, I will make you a very wealthy woman” (H/T p1778). She said that her husband had never “torched the pub” nor had he told her that he had and she had told Mr Thomas so.

Thereafter Ms Nagy said Mr Thomas contacted her again offering bottles of wine and “comfort” which she said she refused.

She claims he said again, “Why don’t you convince me that your husband has done it and I will make you a wealthy woman? I will make it worth your while. Just tell me the truth. I can even give you some money to pull you through She claims he said again, “Why don’t you convince me that your husband has done it and I will make you a wealthy woman? I will make it worth your while. Just tell me the truth. I can even give you some money to pull you through”.

She claims that he told her that he would put her husband away for life and that she could rest assured that she would live thereafter in comfort.

Ms Nagy said that on the night of the fire she had been living at the hotel with Ms Gina Hart, a family friend.

Ms Hart gave evidence and said that on the night of the fire she had been living in Mitchell Street about three to four kilometres from the hotel. Having seen signs of the fire she had gone to it and had there spoken to various members of the Nagy family.

Ms Hart said that some months later she had been telephoned by Mr Thomas and had gone to see him in Brisbane. He had said that he was certain that Mr Nagy had started the fire. Ms Hart said that she had expressed doubts about this and had referred to the financial costs from the loss of trade which would have ensued to the Nagy family if he had. Mr Thomas had then referred to income protection insurance cover which Mr Nagy had.

Ms Nagy claimed that Mr Thomas had asked whether she had ever had a sexual relationship with Mr Nagy. She denied having done so and he said words to the effect that he, Thomas, had come prepared to offer her $10,000 on the off-chance that during a wild moment of passion in “pillow conversation” Mr Nagy admitted to her that he had lit the fire. She said that again she denied that she had ever slept with Mr Nagy.

At the section 12 hearing Mr Thomas said that he had investigated the fire. He agreed that he had interviewed Ms Nagy but denied that he had offered, or was in a position to offer, anyone money for evidence as to the fire. He said that he had asked Ms Nagy questions about her sexual life because he claimed that was what she wanted to talk about.

107

Davidson ADCJ concluded that both Ms Nagy and Ms Hart are credible witnesses whose evidence is capable of being accepted. His Honour considered whether their evidence is relevant to the determination of any factual issue arising in the Section 12 hearing. It was submitted that the evidence goes beyond credit and tends to establish a propensity in Det Sgt Thomas to act in a particular way, namely to improperly influence potential witnesses into giving information and obtaining evidence regardless of its truth. The submission was based on the terms of s97 of the Evidence Act 1995.

108

His Honour expressed his conclusions in the following manner:

"As to the giving of reasonable notice as provided in that section, this question does not arise and in any event I would dispense with notice pursuant to s100 of the Evidence Act 1995. As to whether it is of “significant probative value” it should be considered in light of evidence relating to witnesses such as Ms Marie Whalen, Mr Shane Golds, Mr James Morris, Dr Richardson, Mr Barry O’Brien and Mr Farrar. It may also be relevant to the question of the alleged finding of the pistol in the en suite bathroom of Ms Catt on 24 August 1989 in light of the evidence of Mr Caesar, as indicating a propensity in Mr Thomas to act dishonestly in the gathering of evidence.

In no instance in the trial of Roseanne Catt, however, was any allegation made of Det Sgt Thomas having held out a financial inducement to a witness to give false evidence. Nevertheless, there were substantial issues before the jury in the trial as to whether Det Sgt Thomas’ methods of investigation may have tended to induce the giving of false or at least questionable evidence. In no instance in the trial of Roseanne Catt, however, was any allegation made of Det Sgt Thomas having held out a financial inducement to a witness to give false evidence. Nevertheless, there were substantial issues before the jury in the trial as to whether Det Sgt Thomas’ methods of investigation may have tended to induce the giving of false or at least questionable evidence.

Notwithstanding the difference in methods involved in the allegations contained in the evidence of Ms Nagy and Ms Hart as compared with the methods suggested on behalf of Ms Catt at her trial, the evidence of Ms Nagy and Ms Hart does have “significant probative value”, as does that relating to the Bracamonte/Van Der Merwe matter.
In addition, adopting the analogy of evidence of conduct of police officers at the New South Wales Police Royal Commission and applying the more stringent test propounded by Meagher JA in R v Vastag NSWCCA unreported 12 May 1997, the evidence, like that as to the Bracamonte/Van der Merwe matter, is relevant and cogent as going to whether Det Sgt Thomas may have used improper and dishonest methods of gathering evidence in the investigation of charges laid against Ms Catt."

It is plain that Ms Parkinson was not influenced by the approach of Mr Taylor. Her evidence at Mrs Catt's trial nearly two years later supported Mrs Catt's case on Count 6. The jury accepted the evidence of Mr J Morris and Ms Ridgeway as to what was said at the Club.

345

At the trial Ms Parkinson gave evidence of two occasions when she went to the RSL Club at Taree. On the first occasion a band called "Tight Fit" was playing. She said that Mr Morris was there but not Miss Ridgeway. On a second occasion and again on a Friday night in 1989, when the band "Screaming Jets" was playing, Ms Parkinson and Mrs Catt went to the RSL Club Taree. It was a girls' night out. There were about six ladies in the party. They were celebrating the birthday of a girl friend. According to Ms Parkinson, she and Roseanne Catt were at a table and Mr. Morris and Ms Ridgeway were at another table. She was never at the bar with Mr Morris, Ms Ridgeway and Mrs Catt although she did see Ms Ridgeway on her way to the bar. Ms Parkinson stated that she said hullo to Ms Ridgeway during the evening. Ms Parkinson was asked to assume (as was the fact) that Roseanne Catt was arrested in August 1989. Ms Parkinson thought that the occasion of which she was speaking occurred roughly two to three months before Mrs Catt was arrested. Ms Parkinson said that she could not remember the date.

346

Ms Parkinson said that she saw Mr Morris about 8.30pm and 9.30pm. He was "full" the first time and "even fuller" the second time; he was sort of slumping. When she saw Ms Ridgeway, the latter was staggering a little bit. She appeared to be fairly well affected by liquor.

347

Ms Parkinson appeared to accept that the second occasion on which she went to the Taree RSL Club was probably 28 July 1989. She did not see Mrs Catt talk to Mr Morris. Ms Parkinson said that she was not suggesting that she was in Mrs Catt's company during the whole of the evening. She gave this evidence:

"Q. I suggest there was one occasion when Roseanne spoke to James Morris on that particular evening, 28 July: what do you say to that?
A. No, I wouldn't know."

Ms Parkinson agreed that she knew quite a lot of people at the club and that she did go and say "Hello" to the people.

348

The evidence of Ms Parkinson does not provide strong support for the evidence of Mrs Catt. It was far from conclusive. She also had Mr Morris and Ms Ridgeway in a state of sobriety which, if true, would have meant that Mrs Catt would not have attempted to raise any matter of consequence with Mr Morris. Ms Parkinson's evidence as to the lack of sobriety of Mr Morris and Ms Ridgeway seems to overstate the position.

349

Ms Parkinson confirmed the presence of Mr Morris and Ms Ridgeway at the RSL Club on 28 July 1989. It is hard to accept the evidence of Mrs Catt that she had not seen Mr Morris prior to his giving evidence at the trial.

350

The basis for quashing the verdict on Count 6 is very tenuous and insufficient. The evidence points to the conclusion that Sgt Thomas and Det Paget were probably not aware of the allegations against Mr Morris as at 5 September 1989. The evidence also points to the conclusion that neither Mr Morris nor Ms Ridgeway were corrupted or influenced to give false evidence against Mrs Catt. She was aware of Mr Morris' involvement with martial arts. He was also connected with the police. She had a record of causing, or participating in having Mr Barry Catt placed in residential mental care or in custody and taking over the running of what had been his business.

351

The jury did not accept the evidence of the appellant and Ms Parkinson. The unusual incident and the evidence of the appellant and Ms Parkinson did not cause the jury to have a reasonable doubt. It is drawing an excessively long bow to suggest that Sgt Thomas or Det Paget were aware of allegations as to Mr Morris and that they used them to cause Mr Morris and Ms Ridgeway to invent a false story. The fresh evidence of Ms Parkinson so far as it points to collusion on the part of Sgt Thomas and others reveals that the attempt to influence her failed. There was no evidence that any collusion between Sgt Thomas, Det Paget, Barry Catt and Mr Newell affected the evidence of Mr Morris and Ms Ridgeway. That evidence stood on its own.

352

There is no reasonable possibility of the fresh evidence when combined with the evidence given at the trial resulting in the acquittal of the appellant. The jury's verdict on Count 6 should stand.

Count 7 (Soliciting Vernon Taylor)

353

This soliciting to murder Barry Catt allegedly occurred at Taree between 15 July and 16 August 1989. McClellan AJA (at para [216]) has set out Davidson ADCJ's review of the evidence at the trial of Mr Taylor, Mrs Catt and Christopher, Sharon and Julie and the evidence of Christopher, Sharon and Julie Catt before him with all three of the children changing their evidence before the remitter hearing and supporting the Crown case at that hearing by direct evidence. The evidence of Sharon Catt at the remitter hearing was very damaging to Mrs Catt. Davidson ADCJ also reviewed the evidence of Mr Andrew Connolly, who was not called at the trial. On 20 August 1989, being the same day Mr Taylor made a statement to the police, Mr Connolly made his statement. He gave evidence that on 17 August 1989 Mr Taylor had told him about a conversation which he had with Mrs Catt involving a proposal that she had put to Mr Taylor to kill Barry Catt for the payment of money. Mr Connolly conveyed this information to Mr Frakas, the solicitor then acting for Mr Catt. After that Sgt Thomas spoke to Mr Connolly. There was no delay on the part of Mr Connolly.

354

Davidson ADCJ stated that the only matter about which he had misgivings in relation to the evidence of Mr Taylor at the trial was that the jury did not have the evidence as to what Mr Taylor allegedly said to Ms Parkinson on the issue of alleged collusion. Davidson ADCJ commented that it was open to the jury to accept the evidence of Mr Taylor as establishing the Crown's case and that it was likely that the verdict on this count depended on the view which the jury took of him as a witness.

355

Davidson ADCJ pointed out that there was no indication on the evidence that there was any basis, such as there might have been with Mr Morris, for the application of pressure on Mr Taylor to give a false account. The judge held that nothing presented at the hearing before him raised concern that there may have been a miscarriage of justice specifically in relation to Count 7. The evidence points to the contrary. Mr Taylor's evidence came to the attention of the police via Messrs Connolly and Newell. Mr Taylor had known Barry Catt for many years, but did not contact him or his solicitors. There does not appear to have been even the possibility of pressure being placed upon him to make a statement incriminating Mrs Catt. The terms of Mrs Catt's soliciting emerged when Mr Taylor found it impossible to keep it to himself any longer. Mr Taylor's approach to Ms Parkinson came after he had made his statement to the police. He was obviously selected to make the approach to Ms Parkinson because she knew his mother and probably was aware of his existence.

356

Accepting for the purposes of argument the truth of the evidence of Ms Parkinson, Mr Taylor's approach fell on deaf ears and served to show the lengths to which Sgt Thomas was prepared to go. It did not affect the evidence which was given. While Mr Taylor's approach should not have been made, it appears to have had no effect on the evidence given on Count 7.

357

When the fresh evidence is combined with the evidence given at the trial there is no reasonable possibility of the acquittal of the appellant on Count 7. The verdict is reasonably and adequately supported on the evidence.

The Overall View

358

Davidson ADCJ accepted that there was evidence to support the convictions as to Counts 1, 2, 3, 4, 6 and 7. Undoubtedly there was such evidence. As to Count 3, the evidence in support of the Crown was overwhelming and that of the appellant was not credible. It was destructive of her credit. The evidence in the Crown case on the other counts was substantial and that of the appellant was not easy to accept.

359

Davidson ADCJ thought that it was reasonably possible that as to all counts the jury's acceptance of the Crown case and their rejection of that of Mrs Catt may have been substantially influenced, directly or indirectly, by the evidence of Ms Marie Whalen, Mr Shane Golds, the evidence of Const Cottee and Sgt Thomas as to the finding of the unlicensed pistol, the evidence of Det Paget as to the finding of Lithium and Rivotril in a handbag, the evidence of Mr Newell as to the finding of Rivotril on 5 September 1989 at 1 Cornwall Street and his evidence (and that of Mr Catt) as to a mandarin and other consumables. That is not a view with which I agree.

360

The view of Davidson ADCJ does not attach sufficient weight to the careful and lucid directions of the trial judge to consider the evidence on each count separately. The not guilty verdict on Count 8 indicates that the jury heeded the trial judge's directions. The appellant elected not to pursue an application for separate trials so she could point to the number of charges across quite a wide spectrum as helping to demonstrate that she was the victim of a conspiracy between Barry Catt and Peter Thomas. While I deplore the conduct of Peter Thomas assisted by Det Paget, that does not mean that such conduct affected every count and the evidence given on every count when the evidence, given independently of him was cogent and has been demonstrated not to have been affected by Mr Thomas' conduct or the conduct of Det Paget or Mr Newell. It is incorrect to proceed on the basis that Mrs Catt's evidence on the points at issue was worthy of credit and that her evidence enjoyed any credibility.

361

During the four month trial Mrs Catt gave evidence in chief on 29, 30 and 31 July 1991, a period of just over two days. It extended from p2644 to p2815 of the transcript. She was cross-examined on 31 July, 1, 2 and 5 and 6 August 1991, a period of over four days, her cross-examination being recorded on pages 2815 to 3075 of the transcript. The jury was thus placed in an excellent position to assess her credibility. The jury rejected her evidence. This is not surprising as much of her evidence was hard to accept and she emerged from the evidence given at the trial as highly manipulative and a manipulator of evidence. No subsequent tribunal was as well placed as the jury at her trial to assess her credibility. From her remarks on sentence the trial judge thought little of Mrs Catt's credibility. It is important not to overstate the effect of Sgt Thomas' regrettable conduct and to attribute to Mrs Catt a potential credibility which she does not have.

362

As to Count 1, the defence version of the event was not a persuasive explanation of how Barry Catt sustained a laceration to the side of the head which required suturing. The trial judge in her sentencing remarks stated that the acceptance of the Crown case and the rejection of the defence case was not surprising in the light of the conflicting versions given at different times by some of the defence witnesses. As to the second count of perjury, the trial judge observed that her conviction on this charge meant that the jury accepted not only that her version of the events of 2 May 1988 was false but that it was deliberately false. The trial judge added that this was not surprising as it was difficult to see how it could have been a matter of a mistake.

363

As to Count 3, on which the Crown case was overwhelming, the trial judge remarked that Mrs Catt was unable to explain how Barry Catt had sustained his wound. The trial judge observed that the jury had accepted Barry Catt and presumably the motel proprietor. The trial judge added, "This raises serious questions about the prisoner's attempts to manipulate evidence which she feared might be used against her". Manipulators of evidence have no credibility.

364

As to the fourth count the evidence of Mrs Jan O'Brien impacted upon any vestiges of credibility the appellant had left. After Mrs Catt struck Barry Catt above the eye with a cricket bat causing a laceration which later required suturing, he immediately left the premises and went to visit a friend. Mrs Catt and the three older children described an incident which they said occurred the following morning in which, upon their version, Barry Catt became violent and abusive with his two sons and afterwards sprayed eucalyptus oil in the eyes of his wife and youngest son. She called the police who took Barry Catt into custody. He spent the weekend in the police cells and was not released until the Monday afternoon, over two days after his arrest. The trial judge pointedly remarked:

"This was the second occasion on which the prisoner made allegations of violence against her husband, notwithstanding that it was he who had sustained obvious physical injury in the altercation between them."

365

As previously mentioned, Counts 6 and 7 were independent of the evidence of Barry Catt. An objective analysis of the evidence reveals that Sgt Thomas did not succeed in corrupting or influencing the evidence of Shane Golds, James Morris, Vernon Taylor and Lucy Parkinson.

366

Mrs Whalen's evidence involved many aspects of the factual issues including the conduct of Mrs Catt, her frequent allegations that Mr Catt had sexually assaulted his four children, various disputes between them, Mrs Whalen's interviews by Sgt Thomas and Det Paget and their conduct towards her and what they said, her interviews in about September 1989 with Mr Jones, the solicitor for Mrs Catt and what she said to him, the institution of AVO proceedings by Mrs Whalen against Mr Catt, allegedly at Mrs Catt's instigation. Mrs Whalen had cared for the Catt children for a number of years and lived in a house opposite the workshop. She was often in Mr Catt's home and the children were often at her home. Mrs Whalen had shot her husband and, at the time she gave evidence at Mrs Catt's trial, was serving a sentence for manslaughter at Mulawa.

367

Some of the evidence she gave at the trial was contrary to the evidence she gave at Mrs Catt's committal proceedings. Her evidence was also contrary to what she had allegedly told various other people. She had said to them that she was frightened of Sgt Thomas and Det Paget and that in effect they had stood over her and threatened her with criminal proceedings. She agreed that she had socialised with Mr Barry Catt while she was on bail. She said that they were no more than friends. Mrs Whalen agreed that it was obvious on 23 August 1989 that Sgt Thomas wanted to help Barry Catt.

368

Any jury hearing Mrs Whalen's evidence could not help but have substantial reservations about her reliability and truthfulness. Her evidence was also marked by a degree of self-justification and self interest. Her evidence was extensive and she was cross-examined at length.

369

Any jury acting reasonably would not have used Mrs Whalen's evidence or portions of her evidence to convict Mrs Catt with one possible exception namely that the relationship between Mr and Mrs Catt had soured and become embittered from at least early 1998 and probably from not long after their marriage.

370

The trial judge in her summing-up traced the history of the very sour relationship between Mrs Catt and Peter Thomas, which she described as antagonistic. At SU121 she told the jury:

"So that by the time these investigations commenced you would be well entitled to infer that Peter Thomas would have been less than objective on the subject of Roseanne Catt."

371

A consideration of the evidence on each individual count along with an overall view of the evidence, taking both the evidence adduced at the trial and the fresh evidence lead to the conclusion that the verdicts on Counts 1, 2, 3, 4, 6 and 7 should stand. These counts were well supported by the evidence led at the trial and were reasonable. On the evidence at the trial coupled with the fresh evidence, there is no reasonable possibility of the appellant being acquitted on the counts specified.

372

I have earlier expressed my agreement with the view that the convictions on Counts 5 and 9 must be quashed.

373

The question arises as to what order the Court should make if -

(a) the convictions on only Counts 5 and 9 are quashed

(b) the convictions on all counts except Counts 3 and 4 are quashed.

Sections 6(2) and 8(1) of the Criminal Appeal Act 1912 provide:

"6(2) Subject to the special provisions of this Act, the court shall if it allows an appeal under s 5(1) against conviction, quash the conviction and direct a judgment and verdict of acquittal to be entered
8(1) On an appeal against a conviction on indictment the court may, either of its own motion, or on the application of the appellant, order a new trial in such manner as it thinks fit, if the court considers that a miscarriage of justice has occurred, and, that having regard to all the circumstances, such miscarriage of justice can be more adequately remedied by an order for a new trial than by any other order which the court is empowered to make."

374

Mrs Catt sought that the convictions on all counts be quashed and that a verdict of acquittal be entered on all counts. She relied on Pedrana (2001) 123 A Crim R 1 at paras 72 to 77, contending that it has been the long standing practice of the court not to exercise its discretion to order a new trial where the sentence imposed as a result of the quashed conviction has been served.

375

The series of sentences imposed on Mrs Catt commenced on 11 September 1991 with sentences concurrent on Counts 1 and 3 (malicious wounding) and Count 4 (assault occasioning actual bodily harm) of 15 months imprisonment fixed term and Count 9 (unlicensed pistol) of 12 months fixed term. On Count 2 (perjury) she was sentenced to a fixed term of imprisonment of 3 years starting on 11 December 1992 and ending on 10 December 1995. On Count 5 (attempting to poison Barry Catt) she was sentenced to a fixed term of imprisonment of 3 years starting on 11 December 1995 and ending on 10 December 1998. On Count 6 (solicit Morris to murder) she was sentenced to a fixed term of imprisonment of 3½ years starting on 11 December 1995 and ending on 10 June 1999. On Count 7 (solicit Taylor to murder) she was sentenced to imprisonment for a minimum term of 6 years imprisonment starting on 11 December 1995 and ending on 10 December 2001 with an additional term of 2 years ending on 10 December 2003. The earliest date on which Mrs Catt was eligible for release on parole was 10 December 2001. The judge made it clear that the sentences would have been longer but for the application of the principle of totality. It will be seen that Mrs Catt has served all sentences except that on Count 7.

376

On 6 August 2001 Mrs Catt was released on bail, that is some four months four days before she first became eligible for release on parole and some 2 years 4 months and 4 days before the whole of that sentence ends.

377

The appellant's initial bail conditions included a requirement that she reside at an address in Dapto. On 17 October 2001 these conditions were varied by allowing her to reside either at the Dapto address or an address at Concord West. Initially, she had to report to the police three times per week. From 17 October 2001 this was reduced to once per week. On 5 December 2002 the reporting condition was deleted.

378

The appellant submitted that this Court would not order a retrial, principally for these reasons:

(i) she has fully served the sentences on all but one of the eight counts of which she was convicted

(ii) on the remaining count she had served all but 4 months and 4 days of the minimum term of 6 years, and has not been at unconditional liberty since

(iii) the events happened more than 15 years ago.

379

In Spies v The Queen (2000) 201 CLR 603 at 638 the joint judgment of four of the Justices states:

"Unless the interests of justice require the entry of an acquittal, an appellate court should ordinarily order a new trial of a charge where a conviction in respect of that charge has been set aside but there is evidence to support the charge. In the present case, given the competing considerations, it cannot be said that the interests of justice require that the appellant be acquitted of the s 229(4) charge [under the Companies Code – i.e., make improper use of position to gain an advantage]. That being so, it is a matter for the prosecuting authority to determine whether in all the circumstances there should be a further trial of the s 229(4) charge."

380

In Spies the Court balanced these considerations. It was unthinkable that if he were convicted on the s 229(4) charge, he would receive another custodial sentence or additional punishment. Prima facie, it seemed oppressive to put Spies to the expense and worry of another trial which was likely to take about 10 days. On the other hand, the case against the appellant on the s 229(4) charge seemed a strong one. If the Court refused to order a new trial of that charge, Spies would be acquitted of all charges. In addition, members of the commercial community as well as the general public have a vital interest in ensuring that directors who abuse their office and breach the criminal or company law, do not escape conviction. The Court ordered that there be a new trial of the charge under s 229(4) of the Companies (NSW) Code.

381

The problem was also discussed by Spigelman CJ in Regina v Hannes [2000] NSWCCA 503 at paras 389 to 395.

382 There was considerable delay in Hannes in hearing the appeal caused by him wanting a particular counsel and waiting for him. At the date of hearing the appeal Hannes had only three months to serve before he could be released on recognizance. Spigelman CJ said:

"… the strength of the Crown case and the public interest involved in the prosecution of the offence was such that the proper order to make is for a new trial leaving it to the prosecution to decide, whether or not, in the exercise of its discretion, it will pursue the matter in circumstances where the likely additional penalty to be imposed on a further conviction will be short. ( Cf Spies v The Queen …)"

383

Spigelman CJ held that in the case of most white collar crimes (of insider trading) the conviction is a very important part of the punishment. The Chief Justice also emphasised the issue of general deterrence. A new trial was ordered.

384

Approaching the matter on the basis of quashing the convictions on all counts except Counts 3 and 4, I would order that an acquittal be entered on Count 9 (unlicensed pistol). That is not as grave a matter as the other charges. The sentence imposed was a concurrent one and it was served over 12 years ago. The interests of justice do not require a new trial on that charge. In respect of all the other offences except those in Counts 3 and 4 the interests of justice would be best served by a retrial, subject to the right of the Crown to decide upon due consideration that it will not prosecute. The reasons are as follows:

(a) the offences of solicit to murder are extremely serious and involve great criminality. The offence of attempt to cause to be taken by Barry Catt a noxious thing with intent to injure is also a very serious offence.

(b) The offences of malicious wounding, assault occasioning bodily harm and perjury are serious

(c) the Crown case in respect of all offences mentioned in sub-paras (a) and (b) is supported by a substantial body of evidence.

(d) there is a strong public interest in those committing serious offences being charged and where proven convicted.

(e) the supporting evidence of the three Catt children is no longer available to Mrs Catt

(f) this case has achieved a wide coverage in the media. It is important that it be demonstrated to the public that despite all the problems of a flawed police investigation, the substance of the charges will be determined and that seemingly serious criminal conduct will be investigated and the alleged perpetrators brought to trial.

385

These considerations outweigh factors such as the worry and expense to the accused and that little if any further punishment will be imposed.

386

Approaching the matter on the basis that the convictions on only Counts 5 and 9 should be quashed, for the reasons earlier given, there should be no new trial on Count 9 and a verdict of acquittal should be entered on that count. As to Count 5. the sentence of 3 years imprisonment is concurrent with the sentence on Count 6 of 3½ years, both sentences having the same starting date. It is also concurrent with the sentence of 6 years minimum term, imposed on Count 7, that sentence also starting on 11 December 1995. The sentence imposed on Count 5 has been fully served.

387

Even if Mrs Catt was again convicted on Count 5 she would not receive extra punishment and she would be subjected to considerable worry and expense with a new trial. The events in question happened over 15 years ago so that memories of the event on both sides are likely to be affected.

388

However, the offence of which she was found guilty is a very serious one. It is not easy to prove and deterrence is of importance. There is a high public interest in those charged with such an offence being prosecuted and where guilt is proven convicted despite the lapse of time. There is a substantial body of evidence in support of the charge, although there seem to be areas where the evidence could be considered less than watertight.

389

It is a matter for the prosecuting authorities to weigh up all the competing factors and decide whether to prosecute. This Court should not pre-empt that decision.

390

Consequent upon quashing the conviction on Count 5 and a new trial being ordered, some slight adjustment to the sentences should be made on this account. I would not return her to prison as she has been on bail since 6 August 2001 and there was an unsatisfactory police investigation.

391

Pursuant to s 59 of the Crimes (Sentencing Procedure) Act 1999 I would vary the starting date of the minimum term of 6 years imprisonment on Count 7 to 6 August 1995 and the starting date of the additional term to 6 August 2001. Section 18(2) of the Criminal Appeal Act provides that the time during which an appellant is at liberty on bail pending the determination of his or her appeal does not count as part of any term of imprisonment under the appellant's sentence. This would mean that the additional term would commence on the day of delivery of judgment. There may be other approaches and I would be prepared to hear further argument on this point. It is a case where there are circumstances which would justify the additional term being served while on bail. The reference to this Court, the remitter and the subsequent further consideration of the matter by this Court have, because of the massive volume of material and the complexity of the issues, taken considerable time.

392

Section 59 does not permit the term of a sentence or a non-parole period to be varied under that section. Two further matters should be mentioned. Mrs Catt should remain on bail pending the consideration by the Director of Public Prosecutions whether to proceed on Count 5 and any consideration by the Parole Authorities whether to release Mrs Catt to parole.

393

I propose the following orders:

(1) Dismiss the challenge to and appeal against conviction on Counts 1, 2, 3, 4, 6 and 7

(2) Allow the challenge to and appeal against conviction on Counts 5 and 9. Enter a verdict of acquittal on Count 9. Order that there be a new trial on Count 5.

(3) Pursuant to s 59 of the Crimes (Sentencing Procedure) Act 1999 vary the starting date of the minimum term of imprisonment of 6 years on Count 7 to start on 6 August 1995 and end on 5 August 2001 and the starting date of the additional term of 2 years to 6 August 2001.

(4) Leave to Mrs Catt to apply as to Order (3).

(5) Note Mrs Catt being on bail from 6 August 2001

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Citations

R v Catt [2005] NSWCCA 279

Most Recent Citation

Kearns v R [2011] NSWCCA 103

Cases Citing This Decision

9

Beckett v New South Wales [2013] HCA 17

Beckett v The State of New South Wales [2012] NSWCA 114

Cases Cited

13

Statutory Material Cited

5

Doggett v the Queen [2001] HCA 46

Kirkland v The Queen [2021] SASCA 14

Gallagher v The Queen [1986] HCA 26

CITATION:	Regina v CATT [2005] NSWCCA 279
HEARING DATE(S):	27 October 2004
JUDGMENT DATE:	17 August 2005
JUDGMENT OF:	McClellan AJA at 1; Adams J at 237; Smart AJ at 238
DECISION:	1. Uphold the appeal in relation to counts 1, 2, 5, 6, 7 and 9 and quash each conviction; 2. Enter a verdict of acquittal on count 9; 3. Order that there be a new trial in relation to counts 1, 2, 5, 6 and 7; 4. Dismiss the appeal in relation to counts 3 and 4; 5. The appellant's bail is to continue; 6. Reserve liberty to apply

CATCHWORDS:	CRIMINAL LAW - appeal against conviction pursuant to s 474C(1)(b) of the Crimes Act 1900 - whether the convictions were the result of a miscarriage of justice - whether because of fresh evidence the conviction in relation to each count must be quashed
LEGISLATION CITED:	Crimes Act 1900 Crimes (Sentencing Procedure) Act 1999 Criminal Appeal Act 1912 Criminal Procedure Act 1986 Firearms and Dangerous Weapons Act 1973
CASES CITED:	Doggett v The Queen (2001) 208 CLR 343 Dunn and Cody v The King (1937) 57 CLR 170 Eastman v DPP (ACT) (2003) 77 ALJR 1122 Gallagher v The Queen (1986) 160 CLR 392 Histollo Pty Ltd v Director-General of National Parks and Wildlife Service (1998) 45 NSWLR 661 Johns (1999) 110 A Crim R 149 Mickelberg v The Queen (1988-89) 167 CLR 259 Pedrana (2001) 123 A Crim R 1 R v Grant & Ors (1944) 30 Cr App R 99 R v Hannes [2003] NSWCCA 503 R v Kremmer (2000) 50 NSWLR 538 R v Norfolk Quarter Sessions, ex parte Brunson (1953) 37 Cr App R 6; c/f R v Robert Smith (1924) 18 Cr App R 19 R v Roseanne Catt (1993) 68 A Crim R 189 Spies v The Queen (2000) 201 CLR 603 Suresh v The Queen (1998) 72 ALJR 769 TKWJ v The Queen (2002) 212 CLR 124
PARTIES:	The Crown Roseanne Catt
FILE NUMBER(S):	CCA 60487/01
COUNSEL:	W G Roser (Crown) T Molomby SC (Appellant)
SOLICITORS:	Director of Public Prosecutions (Crown) McGowan Lawyers (Appellant)