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.