Regina v CATT [2005] NSWCCA 279 | Case summary

Regina v CATT [2005] NSWCCA 279 | Case summary | Zoe

[49]

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. Part 2 - The nature of the present proceedings 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.

[58]

"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. Part 3 - The relationship between the appellant and Barry Catt 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.

[73]

"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." Fourth charge in the indictment - "the cricket bat/eucalyptus oil incident" 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." Fifth charge in the indictment - "the lithium incident" 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:

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"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." Sixth charge in the indictment - "soliciting James Morris" 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.

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Ms Van der Merwe: Could you go to the court or to my solicitor or go through him through the right channel? I mean I'm not saying Ramon has done it because I don't have any proof right?. Det Sgt Thomas: This is what I can do. I can apply to the Attorney-General, because you've given me information leading to the conviction of an appropriate person to have your matter squashed…..and you can see the report on it, I'll do it in your presence. I'll give a copy to your solicitor. Only on the condition, only on the condition you give Ramon up. I can't go any further unless you do". 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".

[380]

An accused may therefore use any material, either within the prohibited categories or any other material not within those categories. Section 84(2) of the Act deals with the subpoena or any other means of a requirement to produce documents, and incorporates the following: '… any application, document or transcript of evidence.' These three categories are qualified by the adjectival clause 'that is not admissible in evidence in criminal proceedings under subsection (1)'. Therefore, the prohibition under the subpoena or a call to produce or other such device is completely qualified by the phrase, and therefore, sin An accused may therefore use any material, either within the prohibited categories or any other material not within those categories. Section 84(2) of the Act deals with the subpoena or any other means of a requirement to produce documents, and incorporates the following: '… any application, document or transcript of evidence.' These three categories are qualified by the adjectival clause 'that is not admissible in evidence in criminal proceedings under subsection (1)'. Therefore, the prohibition under the subpoena or a call to produce or other such device is completely qualified by the phrase, and therefore, since an accused can require production of documents for the accused's own forensic purposes, an accused's requirement to produce cannot be in the prohibited category referred to in s 84(1), and therefore, an accused may require production of documents under s 84(2) of the Act." at 547 144 The appellant submits that Studdert J was in error and this Court should find that s 84(1) only precludes the tender of material in the relevant categories if tendered against the accused. Attention is drawn to the fact that although the judgment in Kremmer was concerned with the application of s 84(2) this could only be determined if s 84(1) was properly understood and in the passages identified this task was not undertaken by Studdert J. The submission is in the following terms: "Something seems to have gone radically wrong with this passage. The first sentence states a conclusion which, while unexceptionable, does not assist in determining the issue. Adding the words 'against any person' before the words 'in criminal proceedings' is unnecessary and makes no difference because they are there in effect in any event through the dependency of subsection (2) on subsection (1). The second sentence also does not advance the issue, but in this instance because the words in subsection (1) to which the words 'criminal proceedings under subsection (1)' are said to refer are simply not present in subsection (1). If one assumes that what was intended was a reference to the criminal proceedings referred to by subsection (1), that is, 'criminal proceedings (other than criminal proceedings in which the applicant is the accused) arising from substantially the same facts as those on which the application is based', that too is unexceptionable but does not advance the issue. All it does, like the first sentence, is to spell out the obvious which arises from the dependency of subsection (2) on subsection (1)." 145 Although the legislative provision could have been more clearly expressed I am of the view that the opinion of the majority in Kremmer is correct. It was not necessary for Studdert J in Kremmer to provide an authoritative discussion of s 84(1) as the court, on that occasion was concerned with the effect of s 84(2). 146 To my mind, the words "against any person" are not confined, as the appellant's submission requires, to the tender of documents in criminal proceedings "against the accused." So much is plain from the exception - "other than criminal proceedings in which the applicant is the accused." The reference to "the accused" in the exception clearly indicates that the reference to "any person" in the substantive provision must be a reference to any person whose evidence is sought to be diminished by reference to the documents. 147 I am also satisfied that construed in this manner the section will ensure that unless an accused has made an application, in which case the documents may be tendered, any document in support of an application made by another person cannot be used against that a person in criminal proceedings. No doubt this course was taken to ensure that persons would not be inhibited in making an application for compensation by a concern that the detail supplied with the application may be revealed to the alleged perpetrator of the crime. 148 It was suggested that because s 84(2) was added to s 84 by the Criminal Procedure Amendment (Sexual Assault Communications Privilege) Act 1999 the section should be confined to sexual assault crimes. I see no justification for this conclusion. Although amended by that Act the section is part of the Victims Support and Rehabilitation Act which is of general application. 149 Accordingly, the portion of the affidavit of Mr Catt admitted into evidence by Davidson ADCJ must be rejected. However, although the evidence is not admissible his Honour's discussion remains relevant and indicates the limited use his Honour made of the material in his ultimate findings. Further discussion of matters of particular relevance to count 5 by Davidson ADCJ 150 The relevant portion of Davidson ADCJ's consideration of count 5 is lengthy. However, in order to come to a conclusion with respect to that aspect of the appeal it is necessary to consider his Honour's reasons in detail. I have reproduced them below. H.EX AAB

[609]

Whilst there is evidence to support the conviction as to each of Counts 1, 2, 3, 4, 6 and 7, it is reasonably possible as to all counts that the acceptance by the jury of the Crown's case and their rejection of Ms Catt's, may have been substantially influenced, directly or indirectly, by the evidence of Ms Marie Whalen and Mr Shane Golds; the evidence of Const Cottee and Det Sgt Thomas as to the finding of an 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 mandarine and other consumables (see paras. 689-727; 760; 784; 828-836; 872). 157 The notice of appeal does not clearly identify the separate basis upon which it is contended that there has been a miscarriage of justice which would lead to the convictions being quashed. The notice contends that Det Sgt Thomas was corrupt and had a propensity to manufacture and invent evidence. As I understand the argument of the appellant the alleged propensity of Det Sgt Thomas to act in this way is to be considered together with the other matters of fresh evidence identified in paragraph 3 of the notice of appeal which raise individual matters, including some where Det Sgt Thomas was directly involved. The submission is that taken as a whole, the fresh evidence is such that there is a significant possibility that a jury acting responsibly would have acquitted the accused. 158 The appropriate test to be applied by an appellate court in deciding whether to set aside a conviction where fresh evidence is available has been discussed on a number of occasions. In Mickelberg v The Queen (1988-89) 167 CLR 259 Mason CJ expressed the question as being: "Whether the court considers that there is a significant possibility that the jury, acting reasonably, would have acquitted the appellant had the fresh evidence been before it at the trial." At 273 159 Dawson J, in Gallagher v The Queen (1986) 160 CLR 392 at 421, adopted the formula whether "a jury might entertain a reasonable doubt about the guilt of the appellant." Gibbs CJ although embracing the formulation of the majority was careful to point out that "no form of words should he regarded as an incantation that will resolve the difficulties of every case" ( Gallagher at 399). 160 In Mickelberg Brennan J expressed his continuing preference for a formulation which addressed the question "whether the jury, if the fresh evidence had been laid before it together with the evidence given at the trial, would have been likely to have entertained a reasonable doubt about the guilt of the accused" p 275. 161 In Mickelberg Toohey and Gaudron JJ said of the question: "The underlying rationale for a court of criminal appeal setting aside a conviction on the ground of fresh evidence is that the absence of that evidence from the trial was, in effect, a miscarriage of justice: see eg, Gallagher v The Queen (1986) 160 CLR 392 at pp 395, 402, 410. There is no miscarriage of justice in the failure to call evidence at trial if that evidence was then available, or, with reasonable diligence, could have been available: see Ratten v The Queen (1974) 131 CLR 510 at pp 516-517 per Barwick CJ, noting however, that there may be somewhat greater latitude in the case of criminal trials than in the case of civil trials. See also Lawless v The Queen (1979) 142 CLR 659 at pp 666, 675-677.

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There is no very precise formulation of the quality which must attach to fresh evidence before it will ground a successful appeal. It has been said that it must be 'credible', 'cogent', 'relevant', 'plausible': see eg, Gallagah (1986) 160 CLR at pp 395-396, 401-402, 408-409; Craig v The King (1933) 49 CLR 429 at p 439; Ratten (1974) 131 CLR at pp 519-520; Lawless (1979) 142 CLR at pp 671, 676-677. In essence, the fresh evidence must be such that, when viewed in combination with the evidence given at trial, it can be said that the jury would have been likely to entertain a reasonable doubt about the guilt of the accused if all the evidence had been before it ( Gallagher (1986) 160 CLR p 410, per Brennan J) or, if there be a practical difference, that there is 'a significant possibility that the jury, acting reasonably, would have acquitted the [accused]' ( Gallagher (1986) 160 CLR at p 399), per Gibbs CJ and per Mason and Deane JJ (1986) 160 CLR at p 402)). If th ere is a difference it is not material to the outcome of the present applications. For ease of expression we proceed by reference to the formulation that the jury is likely to have entertained reasonable doubt had all the evidence been before it, noting, in that context, that it is necessary that the fresh evidence be credible in the sense that a reasonable jury could accept it as true, but it is not necessary that the court should think it likely that a reasonable jury would believe it: see Lawless (1979) 142 CLR at pp 676-677, per Mason J and Gallagher (1986) 160 CLR at p 410, per Brennan J, but cf Barwick CJ in Ratten (1974) 131 CLR 519-520." At 301-302 162 In the present case all of the counts were dealt with in the one trial. As a consequence there was a risk, notwithstanding the care with which her Honour directed the jury, that the jury's conclusion in relation to issues of the appellant's credit, on one or more of the counts, would influence the view which they came to on other counts. It must be remembered that the defence case was that the prosecution was the result of a conspiracy between the relevant police, led by Det Sgt Thomas, Barry Catt and Mr Newell who brought under their control various others who gave evidence against the appellant. 163 Although there is fresh evidence from Barry Catt's children which supports the Crown, that evidence is, in my opinion, of little value in determining whether this Court should now intervene. On the other hand there is a substantial body of fresh evidence which would assist the appellant's case, at least on some counts, before a jury. 164 Of this evidence the most powerful, if accepted by a jury, is that of Mr Caesar to the effect that Det Sgt Thomas participated in the fabrication of evidence with respect to the gun and the lithium. If accepted by a jury the propensity thereby demonstrated to use illegal methods to create a case against the appellant would inevitably influence the view which a jury would take of the evidence of Mr Golds, Mr Morris and Mr Newell. The fresh evidence which, if accepted, demonstrates that the evidence of Ms Whalen may be unreliable is such that a jury could have come to a different view of the credit of the appellant on many contested issues. 165 One issue which was central to the appellant's credit at the trial was whether her allegation that Barry Catt had sexually abused his children was a fabrication by her intended to discredit Barry Catt. Although the evidence of the children themselves was critical to the issue, the evidence of Ms Whalen was important and, if accepted by the jury, would have been significant in any view which the jury formed of the appellant's credit. It is true, as the Crown submits, that Ms Whalen's evidence is not directly relevant to any of the charges. However, it is potentially of critical importance in relation to the appellant's credit. The fresh evidence which Davidson ADCJ received and which his Honour found a jury could accept, casts the evidence of Ms Whalen in a different light and would be significant in any consideration by a jury of whether the appellant was the victim of a conspiracy to bring a false case against her. 166 The difficulty in the resolution of the appeal is that, having regard to the fresh evidence in relation to admissions by Det Sgt Thomas as to his actions and evidence of his method of investigation and his possible motive to corruptly secure the conviction of the appellant, it is necessary to consider the extent to which this could have influenced a jury's verdict in relation to counts, other than count 9, where Det Sgt Thomas' evidence is of direct relevance. The problem is significant and although resolved by Davidson ADCJ in favour of the appellant I do not believe his Honour's conclusions are appropriate in relation to all of the counts. In some instances the evidence which was accepted by the jury was so strong that the possible influence of Det Sgt Thomas could not, to my mind, have rationally caused a jury to enter a verdict of acquittal on those counts. 167 In a detailed submission the Crown argues that Davidson ADCJ erred in his conclusion with respect to the characterisation of some of the evidence his Honour received as "fresh evidence" and submits that the evidence now given by the Catt children is highly probative direct evidence which has made a strong Crown case overwhelming. 168 The Crown submission has been prepared in great detail and contains submissions in relation to every witness and the issues at the trial and the Section 12 hearing. Although I have carefully considered all that has been written it would be a considerable task, particularly having regard to the manner in which the submissions are constructed, to explain my reasoning in relation to every point raised by the Crown. Having regard to the conclusions I have reached it would also be unnecessary. These reasons are already of considerable length and to extend them further would have taken considerably more time. 169 The Crown submits that this Court should "not accept" any of the evidence of Mr Peter Bridge, Ms Julieanne Bridge, Ms Faye Klarenbeek, Ms Joy McGregor, Mr Peter Caesar, Mr Graeme Fellows, Mr Gordon Henderson, Ms Anne Strachan, Ms Jeannie Strachan, Ms Kellie Perez and Mr Errol Taylor. Submissions were made that in various ways their evidence was tainted and could not be given any weight. 170 The approach which Davidson ADCJ took to the evidence of each witness and the findings which his Honour made of relevance to this appeal are recorded in his Honour's judgment. I am not persuaded that his Honour has fallen into any relevant error in relation to a finding made with respect to any of these witnesses. The Crown also made submissions attacking the credit of the appellant. It is submitted that she gave false evidence in relation to Ms Beverly Lyons and her knowledge of her, gave false evidence about Dr Sandfield, forged Barry Catt's signature, falsely swore a statutory declaration, made false allegations that Barry Catt had sexually assaulted his children, had wrongly cancelled insurance policies of Barry Catt and the children, had wrongly attempted to take over Barry Catt's business, had endeavoured to secure statements from alleged witnesses knowing they would be false and other matters. All of these issues and the evidence in relation to them were tendered, either at the trial, or, before Davidson ADCJ and his Honour has made findings, either in relation to them, or, with knowledge of the evidence. 171 The matters of general significance to which I have referred are of varying degrees of relevance to the appeals in relation to conviction on each count. In order to determine this appeal it is necessary to consider each matter separately. Counts 1 and 2 172 A finding that the appellant was guilty of count 1 would lead inevitably to a finding that she was guilty of count 2.

[645]

Mr Golds should now be regarded as an unreliable witness on the basis of fresh evidence, together with other evidence which was already before the jury, relating to the lack of objectivity of Det Sgt Thomas and his propensity to use improper methods of investigation. This supports the conclusion, which I draw, that there is a reasonable possibility that if that fresh evidence had been before the jury, they may have declined to accept Mr Golds' evidence." 181 Although the version of events which the jury accepted is now supported by the evidence of the children I do not believe this adds significantly to the strength of the Crown case. Leaving aside the children, when the jury considered whether the Crown case should be accepted, it necessarily had to form a view as to the credibility of the evidence given by the appellant and the evidence of Mr Golds. With respect to the appellant's evidence, whether or not she could be accepted, was likely to have been substantially influenced by the whole of the evidence relevant to her actions, including the allegations she made against Mr Catt, and the allegation of a conspiracy which she made against the police and lay prosecution witnesses. Those allegations are now supported by significant evidence which was not available at the trial. 182 The position in relation to Mr Golds is critical to the resolution of the appeal on counts 1 and 2. Although Mr Golds' recantation was apparently accepted by the jury the real question is whether the evidence which he gave at the trial would still be accepted having regard to the evidence which is now available with respect to Det Sgt Thomas' methods of operation. It is true that Mr Golds says that he was not influenced by Det Sgt Thomas, but, this would be inevitable, even if he had been influenced to give false evidence. This is to my mind, the essential question which only a jury could determine. 183 The appeal in relation to counts 1 and 2 should be upheld. Count 3 184 The Crown case in relation to count 3 was dependent on the evidence of Barry Catt and a number of other persons with no apparent connection with either Mr or Ms Catt. Furthermore, there is nothing to suggest that the case presented by the Crown was influenced in any manner by the investigative method of Det Sgt Thomas. For these reasons Davidson ADCJ accepted the submission of the Crown that the Crown's case as to count 3 remained unaffected by any evidence given at the Section 12 hearing.

[709]

Having considered the evidence against the background of other material relating to Det Sgt Thomas' methods of investigation, I am unable to determine whether it is likely that Det Sgt Thomas and/or Det Paget may have known of the allegations and Mr Morris' alleged involvement on or before 5 September 1989 when a statement was taken from Mr Morris. 213 There are difficulties in the resolution of the appeal in respect of this count. Although there is evidence of difficulties for Mr Morris with respect to allegations of organised prostitution, there is no evidence that Det Sgt Thomas was the initial source of Mr Morris' complaint with respect to the appellant's alleged attempt to engage him to kill Mr Catt. However, I share Davidson ADCJ's view that it would be unlikely that Det Sgt Thomas did not know of the allegations with respect to Mr Morris. The apparent propensity for Det Sgt Thomas to place improper pressure on witnesses and his apparent hostility towards the appellant, would make a submission that Mr Morris' evidence had been tainted by Det Sgt Thomas credible. However, even with the benefit of the evidence received by Davidson ADCJ it could not be concluded that such pressure was in fact imposed on Mr Morris. 214 Notwithstanding these matters, I am satisfied that this ground of appeal should be upheld. The Crown case depends upon the evidence of Mr Morris who says that, although he had never previously met the appellant, she nevertheless solicited him to kill her husband. 215 To my mind, although the alleged behaviour of the appellant is possible, it would not be a likely course for someone intent on killing another to approach a complete stranger in a public place and ask them to carry out the deed. I am also troubled by the delay in Mr Morris reporting the matter and the fact that this is only said to have occurred following his conversation with Mr Ferguson of FACS and Mr Ferguson's relaying of the allegation to another FACS officer. 216 All of the possible difficulties in his evidence were before the jury to evaluate and weigh against the denial by the appellant. However, the credibility of the appellant, and hence whether her denial gave rise to a reasonable doubt in the mind of the jury, was required to be determined having regard to the evidence on the other counts especially count 5 (lithium) and count 9 (the pistol). Having regard to the evidence which is now available in relation to these counts, which is such that, in my opinion, the conviction on those counts should be quashed, it would be open to a jury to come to a different view of the credit of the evidence in relation to count 6. 217 In these circumstances and with respect to those who may have a different view, I am satisfied that the appellant lost the chance of an acquittal on this count and the appeal should be upheld. Count 7 218 Davidson ADCJ summarises the evidence in relation to this count at the trial and the Section 12 hearing and concludes that nothing has been demonstrated to suggest "a miscarriage of justice specifically in relation to count 7." His Honour's discussion is as follows: THE TRIAL

[750]

Mr Connolly's evidence indicates a clear line of information moving from Mr Taylor to himself, to Mr Frakes and then to Det Sgt Thomas. I do not regard failure by the Crown to call him at the trial as involving impropriety. " 220 Davidson ADCJ's finding that the jury's conclusion on this count depended upon the evidence of Mr Taylor was appropriate. Mr Taylor's other involvement with the case, of which Mr Parkinson gave evidence at the Section 12 hearing, was not before the jury. Although there is no suggestion in that evidence that Det Sgt Thomas pressured Mr Taylor to give false evidence, the association between Mr Taylor and Det Sgt Thomas and Det Paget, and the efforts allegedly made by Mr Taylor to have Mrs Parkinson change her account, to my mind, could be significant in any view which the jury formed of Mr Taylor. If the evidence in relation to Det Sgt Thomas' activities, of particular relevance to counts 5 and 9, and otherwise of general relevance as indicating Det Sgt Thomas' approach to investigation, was accepted, a jury's conclusion in relation to the evidence of Mr Taylor, but more particularly the evidence of the appellant on this count, may be different to that formed by the jury at the trial. 221 The evidence which is now available could lead to the conclusion that Mr Taylor was, to some extent, a participant in the efforts of others to secure a conviction of the appellant on various of the charges. It is true that the evidence on this charge is not given by Det Sgt Thomas but his possible influence on the investigation, and the evidence given by others, could not be ignored by a jury. Although the trial judge pointed out to the jury that the Crown case was not dependent on the credibility of Mr Peter Thomas and that, apart from count 9 all the material witnesses were not police witnesses, the evidence which is now available calls for a far more critical examination of the role of Det Sgt Thomas and the influence which he may have imposed upon the evidence of others. 222 The appellant's case at the trial was that Det Sgt Thomas had conspired with others to fabricate the case against her. It is plain that the jury did not accept this proposition, which on the evidence then available could not be criticised. However, the evidence of the role of Det Sgt Thomas and his method of investigation is significantly different to that which was available at the trial. In these circumstances I am persuaded that in relation to count 7 the appellant lost a real possibility of an acquittal which should be corrected by this Court. Count 9 - the pistol 223 I have previously related Davidson ADCJ's findings in relation to count 9. These findings include fresh evidence implicating Det Sgt Thomas in the creation of evidence by putting the revolver in the drawer where it was found by Const Cottee in order to incriminate the appellant. There is evidence that Det Sgt Thomas had reason to dislike the appellant.

[766]

239 In the present case that Court made this order: "The Court orders that pursuant to the provisions of section 12(2) of the Criminal Appeal Act 1912, the factual issues in this case are remitted to a judge of a court of trial." 240 The remitter required the judge of a court of trial to determine the factual issues. The remitter did not require the judge to take a more general role. In so far as the judge has kept within the terms of the remitter his findings should be accepted unless they are affected by appellable error. To the extent that the judge has gone beyond the determination of factual issues this is impermissible and this Court must resolve those matters for itself. It is often not easy to draw the line. 241 Davidson ADCJ recognized that there was room for debate as to the extent of the remitter and what it involved and his role. Sensibly, he chose to make his report as comprehensive as possible. 242 The analysis contained in the report reveals the lack of credibility or flawed credibility of some of the main witnesses including the appellant and an unsatisfactory police investigation. 243 At the trial the appellant raised many of the issues covered by the fresh evidence. The trial was hard fought and the factual issues were canvassed at length. It is important to have regard to the judge's general directions and those in relation to the particular counts. 244 At SU2 the trial judge told the jury that by far their most important task would be to determine who in general was telling the truth and who was lying, adding that many, many lies had been told during the course of the trial. The trial judge elaborated (SU3): "There is no doubt that the principal participants on one side or the other in this quite incredible saga must have been lying to a substantial degree. But that does not necessarily mean that they are lying in everything they say; similarly the participants on the other side, whichever that may be, are not necessarily being truthful in everything they say. There may well be some shades of grey in relation to the credibility of the individual witness, and even of those who are the principal participants." 245 The trial judge emphasised the need to consider each charge separately. She said (SU6): "As you know, there are nine separate charges against Roseanna Catt and you are obliged to consider each one separately. There is a separate body of evidence in relation to each one which must be separately considered. When you return at the end of your deliberations, your foreman will be asked how you find in relation to each separate count and you will be required to give separate verdicts in relation to each count and you must separately consider each one.

[767]

As a matter of common sense, I suppose your findings in relation to some of them may well be affected by your general view as to the credibility of the principal participants in this trial, or principal witnesses in this trial. Nevertheless it by no means follows that your verdict in relation to all charges would necessarily be the same; with one exception and that relates to the first and second counts. If you convict the accused in relation to the first count, then it would be likely, but not necessarily so - As a matter of common sense, I suppose your findings in relation to some of them may well be affected by your general view as to the credibility of the principal participants in this trial, or principal witnesses in this trial. Nevertheless it by no means follows that your verdict in relation to all charges would necessarily be the same; with one exception and that relates to the first and second counts. If you convict the accused in relation to the first count, then it would be likely, but not necessarily so - and I will come to this shortly - that you would also convict her of the second count. But if you were to acquit her of the first count then you must, as a matter of law, acquit her of the second count. It must follow that if you acquit her of the first count then you simply forget the second count: acquittal must follow." 246 After instructing the jury that they must be satisfied, as to each count, of Mrs Catt's guilt beyond reasonable doubt before they could convict her (SU8) the trial judge remarked that in relation to some of the counts, particularly Counts 1, 3 and 4, the details in the evidence may give them some insight into the credibility of the two sides as the battle lines were firmly drawn between the evidence given by the Crown and the evidence given by the defence. 247 The trial judge pointed out. "It must be obvious to you that the evidence of the Crown depends on the major participants." The trial judge noted that counsel for the appellant contended that the Crown case also depended on Det Sgt Thomas (since resigned). She remarked: "…you may think that with the exception of the ninth charge which does depend on Peter Thomas, in relation to the other charges the Crown case does not depend on Peter Thomas." 248 After stating that the defence said that there was a conspiracy between Barry Catt and Peter Thomas, the trial judge continued: "But that does not mean that the Crown case is dependent on the credibility of Peter Thomas … with the exception of the ninth charge it is really not. All the material witnesses are non police witnesses." 249 Of course, in the proceedings before Davidson ADCJ Mrs Catt relied on the pervasive influence of Peter Thomas in the investigation and his strong dislike of her. 250 With this background I turn to consider the position as to each of the counts. Counts 1 and 2 - the rock incident and perjury 251 The trial judge pointed out to the jury that the direct evidence on Count 1 was squarely aligned. At the trial, on the Crown case there were Barry Catt, Mary Warwick and Shane Golds and on the defence case Mrs Catt, Sharon, Julie and Christopher. The three children no longer support Mrs Catt. 252 After briefly reviewing the evidence the trial judge said (SU30) "So those were the versions, and there is clearly a direct conflict between the versions given by the Crown witnesses and those given by and on behalf of the accused. They simply cannot stand together, and you would be entitled to find that there is no area for mistake in relation to the difference between the two versions, one or other of them must be lying. It is not, I must repeat again, a question of which you think is more likely. The Crown must satisfy you beyond reasonable doubt that its version is correct and the defence version is a fabrication." 253 On 2 May 1988 the appellant drove with her son, Peter Bridge, another apprentice in the business of Catty's Body Repairs (Shane Golds) and Christopher, Sharon and Julie Catt to Mary Warwick's house. McClellan AJA has summarised the events and the evidence which was given (paras [23] - [28]). The position of Barry Catt and his hostile relationship with the appellant was obvious at the trial as was the ill feeling between Mary Warwick and the appellant. 254 Shane Golds was partially independent in that he was not a family member. The weight to be attached to his evidence is important. He was born on 26 December 1968. In about August 1986 he commenced work with Catty's Body Repairs on a trial basis. His apprenticeship papers were signed about 6 January 1987 by Mrs Catt as employer. Peter Bridge was there when he started and they served their apprenticeship together. Shane Golds left the employ of Catty's Body Repairs about October 1988, transferring his apprenticeship to Paul Walton. By May 1991 Mr Golds was a panel beater. 255 Both at the committal proceedings and the trial of Mrs Catt, Shane Golds gave evidence to the effect that Mrs Catt was the aggressor in the rock incident and not Mrs Warwick and that it was Mrs Catt who struck Barry Catt with a rock on his head. Mr Golds said that on the way to the police station immediately after the incident (on 2 May 1988) Mrs Catt warned everyone in the car that they were going to have to make a statement - "it was Mary that hit Barry over the head with a rock and Mary was the one who was getting abusive." When the group eventually arrived at Mrs Catt's place she told them what to say again. She told them, "When you are going to give a statement to Teddy Hooke (her solicitor) put that it was Mary that hit Barry over the head with the rock; she went to hit me, but I ducked and she hit Ba Both at the committal proceedings and the trial of Mrs Catt, Shane Golds gave evidence to the effect that Mrs Catt was the aggressor in the rock incident and not Mrs Warwick and that it was Mrs Catt who struck Barry Catt with a rock on his head. Mr Golds said that on the way to the police station immediately after the incident (on 2 May 1988) Mrs Catt warned everyone in the car that they were going to have to make a statement - "it was Mary that hit Barry over the head with a rock and Mary was the one who was getting abusive." When the group eventually arrived at Mrs Catt's place she told them what to say again. She told them, "When you are going to give a statement to Teddy Hooke (her solicitor) put that it was Mary that hit Barry over the head with the rock; she went to hit me, but I ducked and she hit Barry and that Mary was getting abusive at her." Shane Golds said that Mrs Catt said to him "If you don't tell the story the way I told you to, you will lose your job." At that stage Mrs Catt was "pretty well running it (the business) all". 256 Mr Golds said that Mrs Catt repeated her remarks as to the contents of the statement and his losing his job a couple of times. 257 Mr Golds said that about Saturday, 21 May 1988 he attended at the office of Mr Hooke and made a statement. That incorporated what he had been told to say by Mrs Catt. 258 Mr Golds said that towards the end of his employment with Catt's Body Repairs Mrs Catt, on an occasion outside the office said "Do you need any money to knock Barry off and if you don't, do you know of anyone else who will?" 259 Mr Golds said that he continued to see Mrs Catt and Peter Bridge after he left Catty's Body Repairs. 260 At the trial Shane Golds said that on the morning of the hearing of Mrs Catt's case against Mr Catt, he was at Mrs Catt's home and so were the three Catt children and Peter Bridge. Mrs Catt read through their statements. She read his statement to him. She instructed Mr Golds, "Stick with this story and we will be right, we will win the case." Next, they all went to Taree Local Court. The evidence he gave at that hearing on 3 July 1989 was substantially in accordance with his statement to Mr Hooke. This was after he had left Catty's Body Repairs so the earlier threat of losing his job had lost its potency. Mr Golds said that the evidence he gave was not the truth. He was warned that he did not have to answer questions which might leave him open to being charged with a criminal offence. Mr Golds said that he gave the false evidence because he was scared of Mrs Catt. As she had asked him whether he wanted to knock Barry off he was worried what she would try to do to him if he told the truth. On 23 August 1989 he spoke to the police about the matter. 261 Mr Golds recalled an occasion at the workshop just after the rock incident when he, Mrs Catt and Peter Bridge were present and she said, "He's mad, we have got to get rid of him, get him put away." 262 Mr Golds prepared a plan of the scene of the rock incident showing the position of all the various people, Mr Catt's car and Mrs Catt's car and when they were all on the ground and Mrs Catt started hitting Barry Catt with the rock. Mr Golds said that he punched Mr Barry Catt at various stages. That plan indicates a fairly detailed recollection of the incident. 263 At the trial of Mrs Catt Mr Golds' cross-examination extended over 60 pages. Mr Golds agreed that Mr Hooke did not make suggestions as to what he should put in his statement. Mr Golds agreed that he made up part of the conversation he attributed to Mrs Warwick in his statement. This was to fit in with the instructions he had been given by Mrs Catt, that Mary Warwick abused her. Mr Golds insisted that the abuser was Mrs Catt. 264 Mr Golds agreed that he did not talk to his girlfriend, his employer (Mr Walton), his family or his friends about giving or having given false evidence. The first person he told was Det Sgt Thomas, whom he had not previously met. Det Sgt Thomas and Det C Paget had come to his workplace and his employer, Mr P Walton, knew them and told him that he should talk to them. He went with the police to their car and they drove to the Newell house. On the way the police asked what was going on between Mr and Mrs Catt. They referred to the rock incident. Det Sgt Thomas said, "If you are telling lies and we find out you will be charged with perjury. Do you want to speak to us about it?" Mr Golds decided to speak to the police and, according to him, "I told them the truth." Mr Golds said that he was sick and tired of keeping the matter to himself. Mr Golds said that Sgt Thomas never threatened him. Mr Golds said that he wanted to get the matter off his chest. 265 Mr Golds said that while he was surprised to be taken to a private house he did not say anything about it. Mr Golds said that he was not frightened. He was at the house for about half an hour. He only went there once. Mr Golds said he told the police what had happened and that it was Mrs Catt who hit Barry over the head with a rock. Mr Golds said that the police typed out a statement and that he signed it. He was then shown and read a statement by Barry Catt about the rock incident. The police took him back to his place of work. Mr Golds said that he told Sgt Thomas that he had made a statement to Ted Hooke and that it was untrue. He also told Sgt Thomas that the evidence he had given in Taree Local Court was untrue. 266 Mr Golds stated that he did not know that Mrs Catt and Peter Bridge had been charged with perjury. It seems that the first time he became aware of that was when he gave evidence at Mrs Catt's trial. 267 Mr Golds said that Sgt Thomas never said that he was considering charging him (Golds) with perjury. Nor did Sgt Thomas tell him that if he agreed with Barry Catt's statement he (Golds) would not be charged with perjury. Mr Golds said that Sgt Thomas might have said that the penalty for perjury was "six years gaol or something." 268 Mr Golds said that while the police discussed the question of his perjury and told him that he could still be charged with perjury, nobody ever told him before he gave evidence at the committal proceedings against Mrs Catt that if he came clean in relation to his evidence at the Taree Local Court on 3 July 1989 he would not be charged with perjury.

[770]

271 The cross-examiner took Mr Golds through his evidence before the magistrate on 3 July 1989 and attempted to elicit what evidence was true and what was false. In the course of Mr Golds' cross-examination the judge warned the jury that they must subject Mr Golds' evidence to "very special, very critical scrutiny" because he was an accomplice of the appellant and he had conceded that he had been involved in criminal conduct. She added that as a result - "…you must look very carefully at what he says. Also there may always been (sic) (? be) a tendency of somebody who has been closely involved, as he has, to misrepresent the events to perhaps reduce his own role and maximise somebody else's." 272 She also warned the jury that it would be dangerous to convict on the uncorroborated evidence of an accomplice. 273 Mr Golds conceded that there were a number of times during his evidence in the case against Barry Catt when he could have told the truth but he saw fit to continue to tell lies. Mr Golds said that he was holding Mr Catt down as Mrs Catt struck his head with the rock. Mr Golds claimed that after the second blow to the back of Mr Catt's head he (Golds) had called out "Stop". Mr Golds agreed that he had never previously mentioned this. 274 Mr Golds said that until Sgt Thomas arrived on the scene he was still a friend of Mrs Catt. 275 There was an occasion late in 1987 or the beginning of 1988 when Barry Catt abused and humiliated Mr Golds and made derogatory remarks about Mr Golds' mother. Mr Golds was in tears and Mrs Catt told him to take the rest of the day off. He did not give her any credit for that. He denied that his attitude to Mrs Catt had been poisoned by Sgt Thomas. 276 Mr Golds maintained that on the first occasion he was with Sgt Thomas he saw Barry Catt's statement. Mr Golds denied that he changed his evidence to fit in with what Barry Catt had said in his statement. 277 While Mr Golds provides evidence of meeting with Sgt Thomas and Det Paget, he appears to have seen more of Det Paget and to have developed some rapport with him. Mr Golds was strongly of the opinion that Sgt Thomas had not affected his attitude to Mrs Catt or influenced his decision to change his evidence. Sgt Thomas had never threatened him. 278 During his lengthy cross-examination Mr Golds managed to explain how and why he came to give false evidence. On his corrected evidence he had played a leading part in the initial assault on Mr Barry Catt by holding him down. Although still only a late teenager he would have realised that what he did was a serious criminal offence. The course proposed by Mrs Catt in May 1987 enabled him to escape criminal liability. From what he had seen since August 1986 Mrs Catt ran the business. By the time Mr Golds saw Mr Ted Hooke about 21 May 1987 it must have been obvious that the police were unlikely to prosecute Mr Barry Catt. Constable Brown had seen the injury to Barry Catt's head, taken a statement from him, spoken to Dr Wallman and been informed of Mr Catt's mental history. 279 Mr Golds appreciated that by changing his evidence and telling what he says actually happened he was making himself liable to prosecution and a substantial gaol sentence. Mr Golds stated that he wanted to get the matter off his chest. It was a difficult matter to discuss with his friends and family. It would not be an easy matter to live with. 280 The suggestion that Mr Golds was influenced or corrupted by Sgt Thomas to give a false version of events lacks weight in the circumstances where Mr Golds was finding it difficult to live with the evidence he had given, was exposing himself to prosecution and a number of years in gaol and was given no assurance that he would not be prosecuted. Of course, what Mr Golds did in giving false evidence was seriously and criminally wrong, but when the consequences for recanting were potentially so serious it is not reasonably possible that his recantation was due to the corrupting wrongful influence of Sgt Thomas. It was not impermissible for Sgt Thomas to warn Mr Golds that perjury was a serious criminal offence punishable by quite a long gaol sentence. 281 It has been pointed out that evidence was given before Davidson ADCJ that Mr Golds had told Mr Bridges that he had changed his evidence because he was scared of Sgt Thomas and an alleged threat that he would be charged if he did not change his evidence. This evidence was available at the trial and there was no explanation why the issue was not raised and the appropriate evidence called at the trial. 282 The appellant's position has weakened since the trial in that the children who gave evidence at the trial which supported her version have now, broadly speaking, reversed that evidence and supported the version given by their father and Mr Golds. 283 The evidence of the children at the trial was not accepted by the jury. It was not even sufficient to raise a reasonable doubt. While their present evidence must be approached with considerable caution it cannot be totally disregarded; it is confirmatory of the evidence of Mr Golds. In reversing their evidence the children made themselves liable to prosecution for perjury. This is unlikely to occur due to the lapse of time and the position in which they found themselves at various stages. 284 The injuries received by Barry Catt and testified to by Snr Con (then Cons) Brown support that Barry Catt was attacked. The question essentially was who was the assailant. 285 I have not overlooked the finding of Davidson ADCJ that there is fresh evidence as to Mr Thomas' conduct and propensity both as a detective of New South Wales Police and as an insurance investigator tending to support the conclusion that he may have brought improper pressure to bear on Mr Golds to give evidence in a criminal prosecution involving Mrs Catt irrespective of considerations as to the truth or falsity of that evidence. 286 I do not dissent from the findings of Davidson ADCJ as to the recreant behaviour of Sgt Thomas and the possibility of him wrongly putting pressure, or attempting to put pressure on Mr Golds to give false evidence. However, that is only the first question. The evidence of Mr Golds establishes that Sgt Thomas did not do so as to him. A jury was entitled to find, as they must have, that his (Golds') recantation was true, especially bearing in mind the potential consequences for Mr Golds. 287 When the fresh evidence is combined with the evidence given at the trial of Mrs Catt and accepted by the jury there is no reasonable possibility of her acquittal on counts 1 and 2. Count 3 288 I agree that the conviction of the appellant on this count must stand. The Crown case on this count was overwhelming. Mrs Catt's evidence was unbelievable and wholly destructive of her credit. Count 4 289 McClellan AJA has summarised the Crown case and evidence (paras [36] to [39]) and set out a passage from the remarks on sentence of Mathews J (para [40]).

[771]

290 The trial judge crystallised the issue thus (SU50): "So the real question is, did Roseanne Catt assault him with a cricket bat as was described? … the defence version is … that it must have been self-inflicted because … during the confrontation between them which, according to the defence, took place on the Saturday morning not the Friday night; nothing happened which could have accounted for that." While the principal evidence in support of Count 4 was that of Barry Catt the evidence of Mrs J O'Brien and Mr French was important. Indeed, the evidence of Mrs J O'Brien provided considerable support for the Crown case and reflected adversely on the credit of Mrs Catt. 291 The trial judge records that counsel for the defence contended that Mrs O'Brien had nothing to do with this. The trial judge (SU53) pointed out that the jury may think she had quite a bit to do with it as she confirmed in a sense Barry Catt's version of what happened and the trial judge explained why and how it did so thus (SU53): "[Jan O'Brien's evidence] not only supports Barry Catt's version that there was this conversation (and indeed that is what started the confrontation in the first place) but it also supports the suggestion that Roseanne Catt and the children were there in that office on the Friday night at a time when they themselves said that they were in Cowan Road" 292 In view of the importance of Mrs O'Brien's evidence I propose to refer briefly to the evidence which she gave at the trial. It appears that Mr Catt telephoned her after 11pm. She said that while she and Mr Catt were talking the appellant suddenly came onto the line and abused her. The abuse was couched in very coarse terms. The appellant said that Mr Catt was a sick man and enlarged on that theme. The appellant put Tony Catt and then Christopher Catt on the line to tell identical versions of what their father had done to them by way of sexual abuse. Mrs O'Brien did not believe what they asserted. 293 From Mrs O'Brien's evidence at the trial these matters emerge: (a) She had known Mr Catt for about 14 years as at 1991. (b) She and her husband had rented the cottage at 2 Cornwall Street, Taree for about 18 months, leaving about 20 October 1986. (c) She had been employed to do the housework at 1Cornwall Street by Mr Catt and to assist in looking after the children. (d) Mr Catt and his de facto (Sharon Clarke) separated in September 1986. (e) When she made her statement on 12 October 1989 at Newcastle Police Station Sgt Thomas, Det Paget and her husband were there. Sgt Thomas interviewed her. She had not seen Sgt Thomas since 12 October 1989 except once at Court in Taree. They did not discuss this case. (f) She disliked Mrs Catt and had previously agreed in Court in December 1990 that she had a deep resentment of Mrs Catt in October 1986. (g) Since October 1986 she had kept in contact with Mr Catt. (h) At one stage (September/October 1986) Mr Catt alleged that Noel Jago was trying to kill him. (i) She had described Mr Catt as being in a "zombie" or drugged condition in about September/October 1986. 294 Mrs Catt was probably aware of Mrs O'Brien's attitude to her and relations between the two women were poor. The jury accepted the evidence of Mrs O'Brien and rejected the evidence of the appellant. Mrs O'Brien's hostility to Mrs Catt was manifest and must have been taken into account by the jury but they may well have thought that it was soundly based. With her knowledge of Mr Catt, the family and Mrs Catt she was in a good position to assess matters. Her evidence should not be discounted simply because she is a friend of Mr Catt. The evidence reveals that Mrs O'Brien was strong minded, with very definite views. She needed no prompting or influencing by Sgt Thomas. The evidence does not suggest that she was influenced by Sgt Thomas or that her evidence was corrupted by him. That is not a reasonable possibility.

[776]

302 As to Count 7 the judge again pointed out that the evidence was in a very short compass with essentially Vernon Taylor for the Crown and Roseanne Catt for the defence, with a tiny cameo appearance from Sharon Catt. 303 After briefly referring to the evidence of Mr Taylor, Mrs Catt and Sharon the trial judge added: "I suppose the only other piece of evidence which is capable of being relevant to this comes from [Mrs Whalen] who said that within a period of months … before Roseanne Catt's arrest, the accused twice mentioned to her that it would cost $20,000 to have Barry Catt killed." 304 Correctly, that tends to place rather little weight on Mrs Whalen's evidence. That remark was followed immediately by the trial judge's comment that on the evidence there was a clear division between Mr Taylor and Mrs Catt. 305 The trial judge directed the jury as to Count 6: "…if you were to find that she was trying to persuade him [Morris] to do something less than murder her husband that would not be sufficient; you would have to nevertheless acquit in relation to that charge." "…if you were to find that she was trying to persuade him [Morris] to do something less than murder her husband that would not be sufficient; you would have to nevertheless acquit in relation to that charge." 306 At SU 118 and following the trial judge put the defence case that "the whole trial was a travesty, the result of a monstrous collaboration between Barry Catt and [Peter Thomas], possibly involving Adrian Newell, to mount a number of false charges against this innocent woman for the purpose of getting Barry Catt out of the court cases which he was then getting the worst of." The judge referred to the direct evidence relied upon and the circumstances from which they were asked to draw inferences of the collaboration. Count 6 307 It is necessary to refer in more detail to the evidence given at the trial. Mr Morris gave evidence that he had worked as a paid community liaison officer at Taree since 28 February 1988 and was still working in that capacity in July 1989. He was in daily contact with the police. He worked with a fellow community liaison officer. He had heard of Barry Catt, but he had never personally met the man.

[777]

308 Mr Morris said that he went with his sister to the RSL Club at Taree on Friday, 28 July 1989, arriving about 8.15pm. He went to the Club most Friday nights. He was able to recall the particular night because it was his daughter's birthday three days later. He played social darts and by the time he met Mrs Catt he had had about five schooners of beer. 309 He was at one end of the bar with his sister Sandra, talking to her. Mrs Catt and a friend (whose name and description he could not recall) walked up to the bar. His sister introduced Mrs Catt. There were just the four of them in that group. There were other people in the Club. He said that she was dressed in a white leather jacket, long sleeved with a waistcoat, with a short waist and white leather pants, white stilettos and blonde hair like a big blonde wig. She denies being so dressed. While Mr Morris could not remember the conversation he recalled there was some mention of her husband sexually harassing his children and that he was a monster to be doing things to his children. He thought that this part of the conversation lasted a few minutes. Mr Morris said that after this she said, "Do you want to make some money?" He asked her, "What for?" She replied, "To do a good job on my husband - break his arms and legs for $10,000. If you kill him you get a bonus." Mr Morris asked for a bit of time to think. 310 Mr Morris said that Mrs Catt reverted to discussing her husband and his children and what he had done to them. His sister was present throughout the conversation. The lady accompanying Mrs Catt was present during the first segment of the conversation when Mrs Catt was making comments about her husband and his children. Mr Morris was not sure but thought that the lady was present during the second segment of the conversation dealing with the soliciting, but she had left by the third segment of the conversation in which Mrs Catt continued to criticise her husband for his behaviour with his children. That last segment took just a few minutes. 311 Mr Morris stayed at the RSL Club until about 12.30am. He did not recall seeing Mrs Catt again that evening. Mr Morris said that he was "happy" when Mrs Catt spoke to him, having had five schooners and that he was "pretty drunk" when he left the Club. 312 Mr Morris said that during the conversation Mrs Catt asked about his "Twai Kwon Do"-Korean Martial Arts. He told her he had trained in those martial arts and instructed in them at Taree. 313 Mr Morris said that he next met Mrs Catt at K-Mart. It was about one week after their meeting at the RSL Club. Mrs Catt had a little girl with her and, he thought, another woman. Mrs Catt remarked, "Fancy him doing things like this to a little girl like this. Mrs Catt asked if he had thought about what they had talked about before. He replied, "Yes, I did think about it." Mrs Catt said, "When can you get it done? I would like it done straight away or as soon as possible." Mr Morris said that there was a further short conversation but he could not recall its terms. Mr Morris left K-Mart. 314 Mr Morris said that the first time he met Sgt Thomas and Det Paget was when he made his statement on 5 September 1989. Mr Morris said that he had never personally met Mr Barry Catt, but Mr Catt was a friend of his mother. 315 Mr Morris had heard the name of Adrian Newell, but he had not seen anybody by that name while in Sydney (waiting to give evidence at the trial). 316 Sandra Dawn Ridgeway gave evidence that she had met Mrs Catt a couple of times prior to July 1989. She went with her brother to the RSL Club, arriving about 8pm. She and her brother met Mrs Catt and another woman at the bar after 10pm. Ms Ridgeway corroborated the evidence of her brother, Mr Morris, about what happened and what was said at the RSL Club. Ms Ridgeway could not recall whether the lady with Mrs Catt was present throughout the whole of the conversation, but that lady was present at the beginning of the conversation. Ms Ridgeway thought that this lady was aged about 25 and could be a Maori. Her complexion was dark and she had long dark brown hair. The lady, who gave evidence at the trial appeared to be a Maori according to the trial judge. 317 Ms Ridgeway said that she had had about six middies of standard beer as at 10pm. She was fairly happy, but she was adamant that she was not drunk. Ms Ridgeway said that she had not met Sgt Thomas prior to her making her statement. She first met him at a trial in Taree. She did not know Det Paget before she made her statement. It appears that Ms Ridgeway was not influenced by Sgt Thomas and that Davidson ADCJ accepted that. 318 Ms Ridgeway said that Mrs Catt was a bit merry. When she left them they had a bit of a laugh. They did not think Mrs Catt was serious. Ms Ridgeway did not go to the police and tell them about the conversation in the RSL Club. She did not go to the police until she was called by the police. She did not remember who called her in to the police station. 319 The appellant denied that she had endeavoured to solicit Mr Morris. She accepted that she was at the Taree RSL Club on 28 July 1989. She denied ever seeing Mr Morris before he gave evidence at her trial. 320 Ms Joy McGregor, the appellant's sister, gave evidence before Davidson ADCJ that she was with the appellant at the RSL Club on that night and that she did not see the appellant speak to anyone such as Mr Morris. No explanation was given as to why Ms McGregor was not called at the trial. Her evidence is not admissible as fresh evidence. 321 Ms Lucy Parkinson gave evidence at the trial and before Davidson ADCJ. The further evidence she gave before Davidson ADCJ was not led at the trial because the appellant's counsel formed the view that it was not admissible. At the trial Ms Parkinson confirmed the appellant's account of events at the Taree RSL Club on 28 July 1989 and that Mrs Catt had not spoken to anyone at the Club who might have been Mr Morris. Ms Parkinson further said that she knew both Mr Morris and Ms Ridgeway. Ms Parkinson said that she had seen Mr Morris that night "getting a bit boisterous" and "very full, very drunk." She described Ms Ridgeway as "quite full". 322 McClellan AJA (at paras [204-210]) has set out passages from the report of Davidson ADCJ dealing with the additional evidence of Ms L Parkinson, the reports of officers of FACS (Family and Community Services), allegations relating to Mr Morris and underage Aboriginal girls, the knowledge of Sgt Thomas and Det Paget of these allegations and whether they used them to McClellan AJA (at paras [204-210]) has set out passages from the report of Davidson ADCJ dealing with the additional evidence of Ms L Parkinson, the reports of officers of FACS (Family and Community Services), allegations relating to Mr Morris and underage Aboriginal girls, the knowledge of Sgt Thomas and Det Paget of these allegations and whether they used them to exert pressure upon Mr Morris and the conclusions of Davidson ADCJ as to Count 6. 323 It appears that about 25 August 1989 Mr Ferguson, a District Officer of FACS told his supervisor (Mr Baggs) that Mr Morris had disclosed to him that Mrs Catt had offered money to Mr Morris to kill Mr Barry Catt. Mr Baggs, after telling Mr Ferguson that he should have revealed this information to the police at an earlier time, stated that he would do so and in fact informed Sgt Thomas that day. Mr Baggs said that he received no indication from the police that they were aware of the allegations as to Aboriginal children. Mr Baggs could not recall if he was aware of those allegations as at 25 August 1989.

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329 Davidson ADCJ wrote: "Mr Morris in effect denied that Mr Ferguson had asked him to make a statement to the police about the soliciting as a way of getting both him and Mr Ferguson out of difficulties in relation to allegations about under age Aboriginal girls." 330 Davidson ADCJ acknowledged that there was no direct evidence to establish that either Sgt Thomas or Det Paget was aware of allegations of serious sexual offences by Mr Morris relating to Aboriginal children and that the direct evidence given suggests that the contrary may be true. Davidson ADCJ was concerned that the allegations may have come to the ears of Sgt Thomas or Det Paget, but there was no evidence that this was so. 331 The evidence of Mr Morris and Ms Ridgeway was direct and straightforward and did not permit the inference that they had been "softened up" either directly or indirectly. Both dealt with the relatively simple incident at the Taree RSL Club and gave cogent accounts of that meeting. Mr Morris also gave evidence of the KMart meeting. What was said at the meeting at the Taree RSL Club by the appellant was the essence of the charge. 332 Davidson ADCJ concluded: "Having considered the evidence against the background of other material relating to Det Sgt Thomas' methods of investigation, I am unable to determine whether it is likely that Det Sgt Thomas and/or Det Paget may have known of the allegations and Mr Morris' alleged involvement on or before 5 September 1989 when a statement was taken from Mr Morris." 333 The report of Mr Baggs stated that the police investigation into the allegations against Mr Morris was "hush hush". There was no direct evidence from Sgt Thomas or Det Paget as to how they became aware of the incident at Taree RSL Club or of the evidence of Mr Morris and Ms Ridgeway. However, the report of Mr Baggs is to the effect that he told Sgt Thomas. 334 There is a further matter which should be mentioned. At the trial Lucy Parkinson gave evidence. She has since married and is now Lucy Cooper. She gave evidence before Davidson ADCJ by video link. Unfortunately, the Crown was apparently only advised of her identity about 1½ hours before she was called. She said that in about November 1989 she made a statement to Mr Michael Jones (Mrs Catt's solicitor) about events at the Taree RSL Club. Ms Parkinson (and I use her maiden name to avoid confusion) said that in about early December 1989 Mr Vernon Taylor came to her house at 13 Mile Avenue, Taree and she invited him to come inside. He asked her about the Barry Catt matter and said that he and Barry Catt had grown up together and were friends and that Roseanne Catt could not be trusted and was a "blow-in". Mr Taylor told her that Adrian Newell had sent him around to question her about what happened in July 1989 at the RSL Club. Mr Taylor indicated that Messrs Barr There is a further matter which should be mentioned. At the trial Lucy Parkinson gave evidence. She has since married and is now Lucy Cooper. She gave evidence before Davidson ADCJ by video link. Unfortunately, the Crown was apparently only advised of her identity about 1½ hours before she was called. She said that in about November 1989 she made a statement to Mr Michael Jones (Mrs Catt's solicitor) about events at the Taree RSL Club. Ms Parkinson (and I use her maiden name to avoid confusion) said that in about early December 1989 Mr Vernon Taylor came to her house at 13 Mile Avenue, Taree and she invited him to come inside. He asked her about the Barry Catt matter and said that he and Barry Catt had grown up together and were friends and that Roseanne Catt could not be trusted and was a "blow-in". Mr Taylor told her that Adrian Newell had sent him around to question her about what happened in July 1989 at the RSL Club. Mr Taylor indicated that Messrs Barry Catt and Newell wanted her to change her statement supporting Roseanne Catt the night they went to the RSL Club, claiming that she did not speak to James Morris. Ms Parkinson thought that Mr Vernon Taylor was a "little bit nervy and a bit just reckless" She told him that she would think about it. 335 She received some telephone calls from Mr Taylor and a further but very short visit from him. In a telephone call from Mr Taylor two or three days after his second visit she told him, "I would not like him or Barry Catt or for anyone else to tell me what happened that night. I was there." The Crown accepted that Mr Taylor had visited her. She disagreed that Mr Taylor asked her whether she was prepared to make a statement to the police. She added that he had asked her to change the statement which she had made to the police - that was the gist of the conversation. She emphasised that she had already made a statement to Michael Jones. 336 She said that after an allegation at the Barry Catt trial she "came forward to deny that allegation because I was there that night." The Barry Catt trial took place in 1990 and her reference to making a statement to the police may be a reference to making a statement to Mr Jones. These are minor points because Mr Taylor said that he had made two visits to Ms Parkinson and telephoned her perhaps more than once. 337 When Mr V J Taylor gave evidence in February 2003 before Davidson ADCJ his memory of events had been affected by the lapse of time since 1989. 338 It seems that Mr Taylor first unburdened himself as to his encounter with Mrs Catt and her request to kill Barry Catt to Andrew Connolly about 17-18 August 1989. It seems that Andrew Connolly may have told Mr Newell. On 19 August 1989 Mr Taylor met Mr Adrian Newell at the home of Mr Taylor's father. This was not pre-arranged. Mr Newell asked Mr Taylor some questions about Mrs Catt. On the following day, Sunday, 20 August 1989 Sgt Thomas, Det Paget and Adrian Newell came to his home and he made a statement. Mr Taylor conceded that the initial contact with Mr Connolly may have occurred on another date. 339 About 2 December 1989 Det Chief Inspector Murray came to Mr Taylor's home and he told DCI Murray: "About 18 August 1989 I spoke to Andy Connolly who used to go to the same church as I did and he wanted to know what I knew about Roseanne Catt wanting to kill her husband."

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"He thought that I was involved with them." Mr Taylor also said to DCI Murray: "I told him [Andrew Connolly] what I knew and that I was scared and didn't know who to go to." Mr Taylor could not recall these remarks but they appear in his statement. 340 Mr Taylor had known Barry Catt all his life. He did not know whether Mr Newell or Mr Connolly was a friend of Barry Catt. 341 Mr Taylor agreed that at the trial he had said that sometime after making his statement of 20 August 1989 he was speaking with the detectives on the phone and they asked him if he could find out where Ms Parkinson had moved to and ask her if she was prepared to make a statement to the police. Mr Taylor said that the police did not tell him the subject matter of the intended statement. He did not know at the time that Lucy Parkinson was a friend of Mrs Catt nor that she was called as a witness at Roseanne Catt's trial. 342 Mr Taylor said that after two visits and a couple of telephone calls Ms Parkinson told him she was prepared to make a statement, but it was not in his favour. Mr Taylor denied that he was trying to get evidence from Ms Parkinson which would assist a prosecution of Roseanne Catt. He simply asked her if she was prepared to make a statement to the police. Mr Taylor said he had spoken to Ms Parkinson about the same things he had spoken to Andrew Connolly. This was after he had spoken to the police on 20 August 1989. Mr Taylor said that he told her of the incident in which he was involved with Mrs Catt. Mr Taylor could not recall if the police had told him of an incident involving Ms Parkinson. Mr Taylor said that he was not aware that Ms Parkinson had given evidence about a conversation at some time in a club somewhere in Taree. Mr Taylor said that he told the police that Ms Parkinson was prepared to make a statement, but not in their favour. 343 Davidson ADCJ held that the evidence given by Mr Taylor that he had reported later to Sgt Thomas and Det Paget the end result of his conversations with Ms Parkinson made the terms of the conversation admissible and relevant as some evidence going to the allegation of collusion between these two police officers, Mr Newell and/or Mr Catt. The judge continued: "So viewed, however, the evidence does not go to the question whether there may have been any miscarriage of justice specifically in respect of count 6."

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344 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

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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

Regina v CATT

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