Beckett v The State of New South Wales

[2014] NSWSC 1773

Supreme Court of NSW|2014-12-12|Before: Davies J

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Source facts

Court

Supreme Court of NSW

Decision date

2014-12-12

Before

Davies J

Source

Original judgment source is linked above.

Judgment (11 paragraphs)

[1]

The Applicant's submissions 20The Applicant relied particularly on the role of Detective Sergeant Thomas and the Court of Criminal Appeal's conclusions about his involvement in all of the offences charged. The submissions said, without specific reference to what the Court of Criminal Appeal had said about these two counts, that the present application would demonstrate Detective Thomas' involvement in the charges arising out of the two incidents and his direct responsibility for their prosecution. In addition, it was submitted that there was fresh evidence in relation to the counts. 21Detective Thomas' involvement in the Swans Crossing incident as alleged by the Applicant can be summarised as follows: (a) Barry Catt, the only witness to give direct evidence of the alleged stabbing, provided the information to Detective Thomas in his statement of 9 August 1989; (b) About six months later Detective Thomas visited Garry Jeffrey, the main witness after the event, and asked him to give a statement about the incident. Detective Thomas prepared the statement which included an observation that Barry Catt visited Jeffrey at his workplace, a local service station, two weeks after the incident to discuss the matter; (c) When Detective Thomas executed the search warrant and arrested the Applicant on 24 August 1989 he seized two knives, and alleged a Wilkinson sword black-handled implement was the knife used to stab Barry Catt. Although Barry Catt had said in his statement that the knife was used to open oysters, when he was shown the knife at the Davidson inquiry, Barry Catt said he did not recognise the knife. (d) Detective Thomas interviewed Dr Goddard. Dr Goddard told Detective Thomas that he attended Barry Catt's panel shop some eight days after the alleged stabbing to pay an account for repairs to his motor vehicle and Barry Catt asked him to look at the wound. However, Barry Catt told Detective Thomas that Dr Goddard visited the panel shop and looked at the wound a day after the incident. 22The Applicant submitted that Detective Thomas' involvement in the cricket bat/eucalyptus oil incident was as follows: (a) After the Applicant was arrested and charged by Detective Thomas he conducted a Record of Interview with her. Detective Thomas put to the Applicant that she had struck her husband with the cricket bat and as a result he suffered an injury on his left little finger and a cut under his right eye which bled. Further, as a result of the blow striking his hand the bottle of eucalyptus oil that he was holding went into the air and spilled; (b) Detective Thomas conspired to conflate two separate incidents. The first occurred on the night of 5 May 1989 when Barry Catt threatened to kill his children Christopher and Tony. The other incident occurred on the morning of 6 May 1989 when Barry Catt threw a bottle of eucalyptus oil at the Applicant, with the contents of the bottle going onto the Applicant and Tony Catt. (c) Detective Thomas took a statement from John Pearson on 12 September 1989. John Pearson was the husband of Barry Catt's ex-wife. The cricket bat said to have been used by the Applicant was alleged to have belonged to John Pearson who had left it with Barry Catt for safe keeping. (d) Detective Thomas also prepared a statement for Max French on 6 September 1989. Max French was the witness who claimed to have seen the injury to Barry Catt's eye. The Applicant alleges that Max French was a friend of Detective Thomas and Barry Catt. (e) Detective Thomas arranged and coordinated the execution of the search warrant on the Applicant's home at 1 Cornwall Street, Taree on 24 August 1989. 23Implicit in the Applicant's submissions was the conspiracy said to have existed between Barry Catt, Detective Thomas, Detective Paget and Adrian Newell to harm the Applicant by false charges and false evidence. Although one aspect of the further evidence from Ms Strachan was said to demonstrate wrongdoing in this regard on Barry Catt's part, the Applicant's submissions were largely directed to wrongdoing on Detective Thomas' part and his involvement in the prosecution of all the charges including counts 3 and 4.

[4]

(2) Jeannie Strachan 28One of the significant witnesses at the trial was Marie Whalen. At the time the Applicant stood trial and went to prison, Ms Whalen was serving a sentence in prison for the manslaughter of her husband. Whilst in prison she met Jeannie Strachan and had a relationship with her. Following her release from prison in 1995 the Applicant asserts that Ms Whalen confided in Ms Strachan that she had conspired with Barry Catt, his friend Adrian Newell and Detective Thomas to give false evidence against the Applicant. Ms Whalen and Ms Strachan travelled to Taree together in 1995 and met Barry Catt. 29Ms Strachan has provided an affidavit sworn 26 May 2008 where she relevantly says this: [5] In 1995, after Marie Whalen and I were released from prison, we went to Taree where we visited Barry Catt. Marie Whalen and Barry Catt were laughing about the way they had stitched up Roseanne by giving false evidence against her. Marie Whalen and Barry Catt also spoke about Detective Sergeant Peter Thomas and Adrian Newell fabricating evidence against Roseanne. Barry Catt said, 'All you need is a few people who owe you favours and you put a bit of pressure on them' or words to that effect. [6] Barry Catt recounted how he and a friend had put lithium in his milk and then accused Roseanne of doing it. He spoke about how Detective Sergeant Peter Thomas got a cricket bat from Marie Whalen and then concocted a story that Roseanne had hit Barry Catt with the cricket bat. Barry Catt bragged about the way he had cut himself with an oyster knife and accused Roseanne of stabbing him. Barry Catt also said, 'I often do things like that to claim on my accident and injury insurance policy' or words to that effect. [7] Barry Catt described Roseanne as a bitch and said he was on a restraining order for 18 months prior to her arrest. He said this meant he had to arrange for his mates to follow her around before her arrest. He said, 'Everyone who gave evidence against Roseanne at her trial were my mates or Peter Thomas' mates and they owed us favours' or words to that effect. Barry Catt also said, 'I had to get Roseanne because if I went down [on child sex charges] everybody else was going down with me' or words to that effect.

[5]

(3) Errol Taylor 30Errol Taylor was a friend of the Applicant who gave evidence on her behalf at her trial. He swore an affidavit on 2 May 2008 where he relevantly said: [3] I gave evidence for Roseanne at her trial in 1991 and at the judicial inquiry into her convictions in 2003. I have always believed that she was the subject of a vendetta by Detective Sergeant Peter Thomas for reporting him to his superiors over allegations he was involved in fraudulent insurance claims and child pornography. In 1985, I conveyed information from Roseanne and her staff to the New South Wales Ombudsman about Taree police involvement in alleged paedophile activities. [4] I was not asked any questions at Roseanne's trial or at the judicial inquiry into her convictions about an alleged stabbing incident at Swan's Crossing in March 1989, or an alleged assault with a cricket bat on 5 May 1989. I am now informed that there are two remaining convictions against Roseanne for these two incidents on the basis that it did not appear to the Court of Criminal Appeal that Detective Peter Thomas was involved in either incident. [5] I believe that neither of these incidents occurred, and I say this because I was visiting Roseanne and her family in the first half of 1989 on a regular basis, and at no stage did anybody mention the incidents to me. Barry Catt talked incessantly about the past women in his life and how they tried to poison him and steal his assets. Had Barry Catt been stabbed by Roseanne, he would have told me about it and showed me the wound. [6] In all the years I visited Roseanne and her family at 2 Cowan Road, Taree, 1 Cornwall Street, Taree, and 8 Cornwall Street, Taree, I have never observed a cricket bat. I am a cricket enthusiast and I would certainly have noticed a cricket bat if one was available in any of these premises. I would have picked up the cricket bat, looked at it and talked about it. I would have been a keen participant in any game of cricket, but I have never observed Roseanne's children or Barry Catt's children playing cricket. [7] I was aware Roseanne had taken out a restraining order against Barry Catt in 1988 because of his violent and abusive behaviour. Also, I recall hearing about Barry Catt throwing eucalyptus oil in 1989, causing an injury to one of his children that required medical attention. There was no mention at the time of Roseanne striking Barry Catt with a cricket bat. I can say that I cannot imagine anybody striking Barry Catt without provoking a violent reaction.

[6]

Consideration 31Section 79 Crimes (Appeal and Review) Act relevantly provides: 79 Consideration of applications (1) After considering an application under section 78 or on its own motion: (a) the Supreme Court may direct that an inquiry be conducted by a judicial officer into the conviction or sentence, or (b) the Supreme Court may refer the whole case to the Court of Criminal Appeal, to be dealt with as an appeal under the Criminal Appeal Act 1912. (2) Action under subsection (1) may only be taken if it appears that there is a doubt or question as to the convicted person's guilt, as to any mitigating circumstances in the case or as to any part of the evidence in the case. (3) The Supreme Court may refuse to consider or otherwise deal with an application. Without limiting the foregoing, the Supreme Court may refuse to consider or otherwise deal with an application if: (a) it appears that the matter: (i) has been fully dealt with in the proceedings giving rise to the conviction or sentence (or in any proceedings on appeal from the conviction or sentence), or (ii) has previously been dealt with under this Part or under the previous review provisions, or (iii) has been the subject of a right of appeal (or a right to apply for leave to appeal) by the convicted person but no such appeal or application has been made, or (iv) has been the subject of appeal proceedings commenced by or on behalf of the convicted person (including proceedings on an application for leave to appeal) where the appeal or application has been withdrawn or the proceedings have been allowed to lapse, and (b) the Supreme Court is not satisfied that there are special facts or special circumstances that justify the taking of further action. ... (4) Proceedings under this section are not judicial proceedings. However, the Supreme Court may consider any written submissions made by the Crown with respect to an application. (5) The registrar of the Criminal Division of the Supreme Court must report to the Minister as to any action taken by the Supreme Court under this section (including a refusal to consider or otherwise deal with an application). 32In his report Davidson ADCJ said this of Barry Catt: [80] ...In light of the view which I have formed as to Mr Catt's credibility as a witness in the section 12 hearing, I do not accept his evidence unless supported by independent credible evidence from another source which I do accept. 33Davidson ADCJ in his report at [745] and [746] considered the evidence of Garry Jeffrey who was a significant witness in relation to count 3. Davidson ADCJ concluded: There is no indication in the evidence that Mr Jeffrey was pressured into making a statement, or making any particular statement, by anyone. 34Davidson ADCJ referred also to two other witnesses who tended to corroborate Mr Jeffrey and Mr Catt. The first was Beverley Thompson who was with Mr Jeffrey at Swans Crossing. The second was Garry McGuire who met Mr Catt when Mr Catt was hitchhiking back to Taree. He noticed that Mr Catt was wearing a blue t-shirt, he was holding his side and blood was oozing from his shirt. 35In his conclusions concerning count 3 Davidson ADCJ said: [760] Whatever conclusion might be drawn as to the integrity of Det Sgt Thomas arising out of fresh evidence given at the section 12 hearing, the Crown's case on Count 3 depended upon the evidence of Mr Catt and independent support given to it by witnesses such as Mr Jeffrey, Mr McGuire and Dr Goddard. There is no suggestion of any undue interference by the police with any of these witnesses. 36This is significant because, on the account given by the Applicant of this event, Mr Catt simply fell over onto his side but did not sustain an injury. Yet three other persons saw such an injury within a very short period of time afterwards. Nor was the credibility of the Applicant assisted by the evidence of Ms Eslick, the motel proprietor of the motel where the Applicant had stayed the previous night. The Applicant said that Mr Catt followed her, uninvited, to Swans Crossing, and that corroborated the Applicant's account of having stayed alone at the motel. Ms Eslick gave evidence that the Applicant had attempted to persuade her to give evidence that the Applicant had stayed alone at the motel when Mr Catt had also stayed with the Applicant. 37McClellan AJA at [184] and [186] expressly made reference both to Barry Catt's evidence and to the issue of Detective Thomas' involvement in the Swans Creek incident. McClellan concluded that Detective Thomas did not bring pressure to bear on witnesses, and that there was sufficient other evidence to justify the conviction and corroborate Barry Catt's evidence. 38Davidson ADCJ's conclusions in relation to count 4 was this: [784] The jury had the evidence of Mr Catt supported by the evidence of Mr French and other witnesses. The only fresh material at the section 12 hearing supports the case for the Crown. The evidence of the Catt children is now consistent with the jury's verdict which implicitly involved a finding that the evidence given by them at the trial was untrue and a product of pressure from Ms Catt. It was open to the jury to reject the suggestion of a self-inflicted wound. The verdict on this count has not been challenged by any evidence given at the section 12 hearing. 39In relation to this count both McClellan AJA at [191] and Smart AJ at [294] and [297] examined Detective Thomas' involvement and rejected the notion that his corrupting influence weakened the strength of the other evidence against the Applicant. They both also concluded that the other witnesses supported Barry Catt's account of the incident. 40Those findings of Davidson ADCJ and the Court of Criminal Appeal mean that the issues of Barry Catt's credibility, Detective Thomas' involvement in these counts and the alleged conspiracy between them fall within sub-paras (3)(a)(i) and (iii) of s 79. 41The issue of Detective Thomas' involvement in all counts was also the basis of the petition to the Governor in 2007. That issue, therefore, also falls within sub-para (3)(a)(ii). 42The Applicant did not seek special leave to appeal to the High Court against these conclusions of the Court of Criminal Appeal. 43It is necessary to see if the further evidence now put forward causes a doubt or unease or disquiet to justify a referral under the section.

[7]

(1) Tracey Mairinger 44On the material supplied by the Applicant it is difficult to discern what the nature of the evidence was that was given by Ms Mairinger at the Applicant's trial. The submissions from the Attorney-General say that her evidence was to the effect that she was retained by the Applicant to cook meals for the Catt household and she, therefore, regularly attended the Catt home to do so. At the time Barry Catt was living across the road in his office. 45The submissions went on to say that her evidence was focused on two matters. First, she was persuaded by the Applicant to carry a concealed tape recorder and to try to confuse Barry Catt so that he would make admissions regarding abuse of his children. Secondly, she gave evidence about the contents of, and access to, the fridge in the office (concerned with the allegation that the Applicant had poisoned Barry Catt by contaminating drinks in the fridge). 46In his report Davidson ADCJ, when dealing with the evidence of Mr Newell, said that Mr Newell's evidence to the effect that the Applicant had made statements consistent with the Crown's case before and during her marriage to Mr Catt was supported by the evidence of a number of other witnesses who included the person then described as Tracey Taylor. Nothing in the report of Davidson ADCJ nor in the judgment of the Court of Criminal Appeal suggests that this evidence was related directly or indirectly to the two incidents concerned. Indeed, Ms Mairinger says in her present affidavit that although she recalled an incident where Barry Catt threw eucalyptus oil there was no suggestion at the time that the Applicant struck Barry Catt with a cricket bat. Further, Ms Mairinger said that she did not know about the allegation that the Applicant stabbed Barry Catt until the Applicant's trial. 47In those circumstances, it is difficult to understand how any statement now by Ms Mairinger that she gave false evidence at the trial is relevant to a consideration of the outstanding convictions on counts 3 and 4. 48The statement in paragraph 8 of her affidavit that she was involved with the Applicant on a daily basis does not sit easily with evidence she gave in cross-examination at the trial to the applicant's counsel that she worked 5 days per week from 8.30 am to 5.30 pm and on Friday and Saturday nights from 6.00 pm to 11.00 pm. Nor is it surprising (but not helpful to the Applicant here) that Ms Mairinger did not know about the matters in counts 3 and 4 until the trial in 1991 because she was living in Queensland at the time. 49Finally, a comparison of her 2007 affidavit and the present one does not assist the Applicant because it raises credibility issues about Ms Mairinger. The following matters are noted. First, the 2007 affidavit said that "two detectives" arrived at her house in 1989 in Queensland. She said "I remember one detective was called PAGET". There is no mention of Detective Thomas. In her present affidavit she asserts that "two detectives, Peter Thomas and Carl Paget" arrived. Given that the 2007 affidavit was lodged in support of a petition to the Governor concerned with Detective Thomas' behaviour generally in the matter, it is significant that there is no mention of him by name in that affidavit. 50Secondly, she said "Parts of the evidence I gave at the trial were not truthful" without specifying which parts. In her present affidavit she said, "Much of the evidence I gave was untrue" without specifying the evidence referred to. Even if it was untrue, it is doubtful that it could have any effect on the convictions for counts 3 and 4. 51Thirdly, in the 2007 affidavit there is nothing at all about the incidents that resulted in counts 3 and 4. The present affidavit contains the material in paragraph 9 (set out at [27] above). What she says now can only have been information told to her by other persons. She had no direct knowledge of either event.

[8]

(2) Jeannie Strachan 52McClellan AJA dealt at length with the evidence of Marie Whalen but introduced his consideration of her evidence by saying this: [122] ...Although her evidence was important in relation to some collateral issues she did not give evidence about any matter central to any of the charges. Her evidence was primarily concerned with the veracity of allegations against Barry Catt of sexual abuse of his children and the preparation and content of a statement which suggests that the allegations may be true. The allegation made by the Crown was that the appellant had sought to fabricate evidence in support of the sexual assault allegations. The issue was obviously of critical significance to the appellant's credit. 53McClellan AJA then set out at length the assessment by Davidson ADCJ of evidence relating to Ms Whalen given both by her and a number of other witnesses. McClellan AJA then set out Davidson ADCJ's conclusions with respect to the evidence of Ms Whalen. These conclusions relevantly are: There is fresh evidence to support the conclusion which I draw that the evidence of Ms Whalen is so unreliable that she is not to be regarded as a witness whose evidence I accept on contested matters. If that fresh evidence had been before the jury in the trial of Roseanne Catt there is a reasonable possibility that the jury may have rejected Ms Whalen's evidence either in whole or substantial part. Acceptance of the evidence of Ms Whalen in whole or substantial part by the jury at the trial of Roseanne Catt is likely to have had seriously adverse repercussions to the case presented on behalf of Ms Catt on all contested issues at her trial. 54McClellan AJA then said this: [128] I also agree with his Honour's conclusion that the acceptance of Ms Whalen by the jury is likely to have "had seriously adverse repercussions to the case presented on behalf of Ms Catt on all contested issues at her trial". Given that the allegation of sexual abuse by Mr Catt of his children was a central issue with respect to the appellant's credit it could hardly be otherwise. 55Notwithstanding the lengthy survey by Davidson ADCJ of evidence relating to Ms Whalen and the conclusions to which he came that were accepted by the Court of Criminal Appeal, it was not considered that the evidence was relevant to counts 3 and 4 which stood or fell on the basis of the evidence given in relation to them. 56To the extent, therefore, that the effect of Ms Strachan's evidence is now that Marie Whalen agreed in 1995 that she had given false evidence against the Applicant, that is a matter that has already been dealt with by the Court of Criminal Appeal. In relation to counts 3 and 4 it was not thought to have any effect on the result on those counts. 57The evidence Ms Strachan gives is only evidence that impugns Barry Catt's and Marie Whalen's credibility. It does not concern the events giving rise to counts 3 and 4. The contention that Mr Catt was party to a conspiracy to give false evidence against the applicant was canvassed at the trial, during the Davidson inquiry and subsequently in the Court of Criminal Appeal after that inquiry. Notwithstanding the unreliability of Ms Whalen's evidence generally and what was accepted in relation to the conspiracy said to involve Mr Catt and Detective Thomas, the Court of Criminal Appeal did not consider that counts 3 and 4 were affected by those matters. Nothing in Ms Strachan's affidavit casts any doubt on that conclusion. 58It is also to be noted that the detail of the cricket bat story in Ms Strachan's affidavit differs from the case presented by the Crown and which the applicant says was false. That case was that the bat used had been left by John Pearson with Mr Catt for safekeeping. According to Mr Strachan, Barry Catt did not embrace that story. Rather, he claimed that Detective Thomas obtained a cricket bat from Mr Whalen and then concocted the story that the Applicant hit him. 59That account tends to underline the point that Ms Strachan's evidence in her recent affidavit tends only to undermine Mr Catt's credibility. That lack of credibility was taken into account by Davidson ADCJ and subsequently by the Court of Criminal Appeal. Ms Strachan's evidence does not tend in any other way to support the Applicant's account of the events of 5/6 May 1989 involving the cricket bat. Nor did they undermine the evidence of Jan O'Brien which was, as Smart AJ makes clear at [291] to [293] of R v Catt, important corroborative evidence of Mr Catt's account of the events.

[10]

Conclusion 63Both the conclusions of Davidson ADCJ and the Court of Criminal Appeal were to the effect that, despite what had been demonstrated about Detective Thomas there was no evidence to suggest that his wrongdoing affected the evidence given in relation to counts 3 and 4. Further, there was sufficient independent evidence of Barry Catt to justify the convictions in relation to these offences. To the extent that the Applicant's submissions rely on these matters I consider that these matters have been more than adequately dealt with by Davidson ADCJ and the Court of Criminal Appeal for the reasons given earlier. There is no basis for a further reconsideration pursuant to s 79(3) beyond what has been said above. 64The only aspect of the further material now put forward that might constitute evidence that relates to these counts is the evidence from Ms Strachan that in 1995 Barry Catt and Marie Whalen discussed how they had set up the Applicant in relation to these two counts. That single statement does not cause me to have a doubt nor a sense of disquiet or unease about the convictions on these counts. As mentioned earlier, this evidence of Ms Strachan is simply evidence that throws further doubt on the credibility of Barry Catt and Ms Whalen. Both Davidson ADCJ and the Court of Criminal Appeal were not prepared to accept their evidence unless otherwise supported by evidence which was accepted. This evidence from Ms Strachan does not advance matters in that regard for the Applicant. 65It is doubtful that the statements by Ms Whalen and Barry Catt that they had concocted the stories involving counts 3 and 4 in a manner adverse to the Applicant can be regarded as statements against interest in a manner that might possibly lead to the acceptance of those statements as true notwithstanding that both persons are both otherwise entirely unreliable witnesses. 66Even if those statements could possibly be accepted as true, there is no evidence, either before the Davidson inquiry, or put forward as part of the present application that provides even a prima facie foundation that the evidence of the independent witnesses in respect of those counts was not true. Ms Strachan's statement does not even suggest that those independent witnesses perjured themselves or were somehow influenced by Detective Thomas, Barry Catt, Marie Whalen or any other person. The highest the matter can be put is that Detective Thomas took statements from them. 67This issue of influence or pressure has been dealt with both by Davidson ADCJ and the Court of Criminal Appeal adversely to the Applicant. Nothing in present evidence put forward justifies a departure from the Court of Criminal Appeal's conclusions in that regard. 68It is not enough to say, as the Applicant does, that the whole of the evidence of Barry Catt and Detective Thomas is fraudulent and that one cannot look at the six charges where the convictions were overturned and quashed separately from counts 3 and 4. The distinction between those two groups of offences has been carefully analysed in the Court of Criminal Appeal and the distinction between them remains. As noted, no application for special leave was brought to challenge this conclusion. 69I do not consider that there is any doubt or question as to the Applicant's guilt on counts 3 and 4. 70I would refuse the application.

Parties

Applicant/Plaintiff:

Beckett

Respondent/Defendant:

The State of New South Wales

Legislation Cited (3)

Crimes Act 1900(NSW)

Crimes (Appeal and Review) Act 2001(NSW)

Criminal Appeal Act 1912(NSW)

Cases Cited (8)

Judgment 1The Applicant has applied for an enquiry pursuant to s 78 Crimes (Appeal and Review) Act 2001 (NSW) into her convictions for maliciously wounding Barry Catt and for assaulting Barry Catt occasioning actual bodily harm. The application seeks the referral of the convictions to the Court of Criminal Appeal to be dealt with as an appeal under the Criminal Appeal Act 1912 (NSW). 2The background to the application is set out in my judgment in Beckett v The State of New South Wales (No. 1) [2011] NSWSC 818. It may be summarised as follows. 3On 24 August 1989 the Plaintiff was arrested and charged in relation to a number of matters. On 14 May 1990 committal proceedings commenced in Taree Local Court in relation to the indictable offences. 4On 27 July 1990 Magistrate Evans ordered the Plaintiff to stand trial in the Supreme Court in relation to a number of the allegations which subsequently formed the following counts in the indictment presented at the Plaintiff's trial: Count 1: [Rock Incident]: On 2 May 1988 at Taree maliciously did wound Barry Catt (s.35 Crimes Act 1900). Count 2: [False Evidence About The Rock Incident]: On 3 July 1989 at Taree 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 (s.327 Crimes Act 1900). Count 3: [Swan's Crossing Incident]: Between 2 March and 30 March 1989 at Swans Crossing maliciously did wound Barry Catt (s.35 Crimes Act 1900). Count 4: [Cricket Bat Incident]: On 5 May 1989 at Taree did assault Barry Catt thereby occasioning to him actual bodily harm (s.59 Crimes Act 1900). Count 5: [Drug Incident]: Between 1 May and 31 July 1989 at Taree, maliciously did cause to be taken by Barry Catt a noxious thing, namely, lithium, and thereby did endanger the life of Barry Catt (s.39 Crimes Act 1900). Count 6: [James Morris - RSL Club]: On 28 July 1989 at Taree did solicit James Morris to murder Barry Catt (s.26 Crimes Act 1900). Count 7: [Vernon Taylor-1 Cornwall Street, Taree]: Between 15 July and 16 August 1989 at Taree did solicit Vernon Taylor to murder Barry Catt (s.26 Crimes Act 1900). Count 9: [Pistol]: On or about 24 August 1989 at Taree did have in her possession a pistol, namely, a Hopkins and Allen .32 calibre revolver, she then not being the holder of a licence for such pistol (s.25(l) Firearms and Dangerous Weapons Act 1973). 5In addition, Count 8 in the indictment presented at trial was this: On or about 24 June 1989 at Taree did encourage Leslie O'Brien to murder Barry Catt (s.26 Crimes Act 1900). On that matter the Magistrate did not commit the Plaintiff to stand her trial. Subsequently, however, the Director of Public Prosecutions presented an ex officio indictment in relation to that count which became Count 8 in the indictment. 6The Plaintiff stood trial in relation to the said nine counts before her Honour Justice Mathews and a jury in the Supreme Court. The trial commenced on 7 May 1991. On 11 September 1991 the jury returned verdicts of guilty to counts 1, 2, 3, 4, 6, 7 and 9, and an alternative guilty verdict in relation to count 5. The jury returned a verdict of not guilty in relation to count 8. On 18 October 1991 the Plaintiff was sentenced to a total of 12 years 3 months with a non-parole period of 10 years 3 months. 7The Plaintiff appealed from her convictions and sentence to the Court of Criminal Appeal. The Court subsequently dismissed her appeal (R v Catt (1993) 68 A Crim R 189). 8In early 2001 the Plaintiff petitioned the Governor, pursuant to s 474B Crimes Act 1900 (NSW), seeking a review of her convictions on the eight (8) counts on which she had been found guilty. On 24 July 2001 the Attorney-General referred the matter to the Court of Criminal Appeal, pursuant to section 474C(l)(b) of the Crimes Act. 9On 7 December 2001 the Plaintiff filed a Notice of Appeal in the Court of Criminal Appeal. In considering the appeal the Court of Criminal Appeal, on 12 July 2002, ordered that the factual issues in the appeal be remitted to a judge of a court of trial, pursuant to section 12(2) Criminal Appeal Act 1912 (NSW). The matter was allocated to Davidson ADCJ for the determination of factual matters. His Honour delivered his findings on 27 July 2004. 10On 16 September 2004 the Plaintiff filed Amended Grounds of Appeal. 11On 17 August 2005 the Court of Criminal Appeal delivered judgment in the appeal: R v Catt [2005] NSWCCA 279. McClellan AJA (with whom Adams J agreed) said: [232] I have come to the conclusion that the appeal in relation to counts 3 and 4 should be dismissed and the appeals in relation to counts 1, 2, 5, 6, 7 and 9 upheld. [233] With respect to count 9 (unlicensed pistol) the sentence has already been served and an order for a new trial would not be appropriate. A verdict of acquittal should be entered. [234] However, with respect to the other matters the charges are serious and although I am satisfied the convictions should be quashed it is a matter for the Director of Public Prosecutions, and not this Court, to determine whether a new trial should take place. Although there is undoubtedly significant reasons (sic) why a new trial may be appropriate, not the least of which is to ensure that when significant charges are brought they are determined according to law, this must be balanced with the fact that fresh trials would occasion significant expense and it would be unlikely that any further term of imprisonment would be required to be served, even if convictions were entered on all charges. The appellant was released on bail on 6 August 2001, just over four months before her release on parole was due on 10 December 2001. [235] In the circumstances, the appellant should remain on bail pending the decision by the Director of Public Prosecutions as to whether to proceed with any fresh trial. [236] I propose the following orders:

Uphold the appeal in relation to counts 1, 2, 5, 6, 7 and 9 and quash each conviction.
Enter a verdict of acquittal on count 9.
Order that there be a new trial in relation to counts 1, 2, 5, 6 and 7.
Dismiss the appeal in relation to counts 3 and 4.
The appellant's bail is to continue.
Reserve liberty to apply. 12On 22 September 2005 the Director of Public Prosecutions directed that there be no further proceedings against the Plaintiff on all the outstanding charges. On 26 September 2005 a form from the DPP headed "Particulars of No Further Proceedings Submission to the Director" ("the Particulars") was prepared for forwarding to the Court of Criminal Appeal Registry. 13As can be seen, although counts 3 and 4, the subject of the present application, were no-billed by the DPP, the Applicant seeks that the convictions be quashed. 14On 19 February 2007 the applicant petitioned the Governor for a review pursuant to s 474B of the Crimes Act 1900 (NSW) in respect of the convictions for counts 3 and 4. The petition was supported by an affidavit sworn by Tracey Anne Mairinger (nee Taylor) on 12 January 2007. The Governor declined the petition.

Legal principles 15The test to be applied in determining an application of this kind is whether it appears that there is a doubt or question as to guilt, as to any mitigating circumstances in the case or as to any part of the evidence in the case: s 79(2) of the Crimes (Appeal and Review) Act. 16The principles to be applied in determining an application under s 78 were summarised by Johnson J in Application of Peter James Holland under s 78 Crimes (Appeal and Review) Act 2001 [2008] NSWSC 251 as follows: [5] Part 7 Crimes (Appeal and Review) Act 2001 has its origins in a legislative scheme which was an innovation in New South Wales - it is remedial legislation designed to overcome injustices that sometimes arise in the course of the administration of criminal justice: Kirk Group Holdings Pty Limited v WorkCover Authority of NSW (2006) 66 NSWLR 151 at 154 [5], 155 [8]. An application under s.78 does not involve a judicial proceeding: s.79(4). In determining such an application, the Court performs an administrative act: Varley v Attorney General (NSW) (1987) 8 NSWLR 30 at 48-50; Eastman v Director of Public Prosecutions (ACT) [2003] 214 CLR 318 at 362 [124]. [6] The test is whether it appears that there is a doubt or question as to guilt, as to any mitigating circumstances in the case or as to any part of the evidence in the case: s.79(2). With respect to repealed s.475 Crimes Act 1900 (which used similar words), it was said that this view may be formed where the material causes the person considering the matter unease or a sense of disquiet in allowing the conviction or sentence to stand: Varley v Attorney General (NSW) at 48; Application of Rendell (1987) 32 A Crim R 243 at 245. This formula has been applied since the repeal of s.475 and its replacement by the provisions now contained in s.79(2): Application of Pedrana (2000) 117 A Crim R 45 at 463 [28]; Application of Suey [2001] NSWSC 543 at [18]. [7] Where it is contended that a doubt or question exists concerning part of the evidence in the case, it is appropriate to consider whether any doubt or question about that part of the evidence produces a doubt or question as to guilt: Application of Moore (2000) 112 A Crim R 331 at 332 [6]. The section is to apply to a part of the evidence which has some real material substance as effecting the conclusion of guilt: Application of Suey at [19]. [8] There has to be available material which, as a matter of practical reality, gives rise to a relevant sense of unease or disquiet: Application of Esposito (Hunt J, 14 July 1988, unreported at page 2); Application of Visser (Newman J, 27 June 1994, BC9402667 at page 3); Application of Dunn [2005] NSWSC 857 at [9]. Some Other Features of the Jurisdiction [9] The procedure under s.78 is not intended to provide a convicted person with yet another avenue of appeal after the usual avenues have been exhausted: Application of Dunn at [9]; Application of Milat (2005) 157 A Crim R 565 at 574 [26]. Nor is it an opportunity, in a sense, to run the trial again on paper, with the ultimate submission that acquittal should result. [10] The jurisdiction which a judge is exercising under Part 7 Crimes (Appeal and Review) Act 2001 is an administrative function which may be activated when the criminal justice system has run its course following trial and appeal and, in almost every case, where additional evidence has come to light which is said to raise a doubt or question as to guilt or sentence. The powers available under s.79 are limited to the direction of an inquiry or referral of the case to the Court of Criminal Appeal. They do not extend to a power to quash convictions or direct acquittals (as the Applicant sought in this case). [11] The nature of the jurisdiction under Part 7 involves some flexibility in the material which may be placed before a judge in support of an application for an order directing an inquiry or referring the case to the Court of Criminal Appeal. To invoke the fresh evidence rule at the ss.78-79 stage (as the Crown submissions of 30 November 2006 suggested by reference to R v Ion (1996) 89 A Crim R 81 at 93-94) does not sit well with the function being performed. In decisions concerning applications under s.475, it was observed that the fresh evidence rule had no application: Application of Esposito at page 2; Application of Visser at page 3. [12] If the judge refers the case to the Court of Criminal Appeal, however, that Court is to deal with the case so referred in the same way as if the convicted person had appealed against the conviction or sentence under the Criminal Appeal Act 1912: s.86 Crimes (Appeal and Review) Act 2001. On an appeal following referral, the test governing the reception of new and fresh evidence on appeal is applicable: R v Johns (2000) 110 A Crim R 149 at 151-153 [4]-[10], 165-169 [41]-[58]; R v Pollock [2005] NSWCCA 316 at [2]-[3], [24]ff.

(2006) 66 NSWLR 151

(1987) 8 NSWLR 30

Cited By (1)

Application by Christopher John Laycock under s 78 Crimes (Appeal and Review) Act 2001 [2015] NSWSC 1429