New South Wales Court of Criminal Appeal CITATION: Regina v CATT [2005] NSWCCA 279 HEARING DATE(S): 27 October 2004 JUDGMENT DATE: 17 August 2005 JUDGMENT OF: McClellan AJA at 1; Adams J at 237; Smart AJ at 238 DECISION: 1. Uphold the appeal in relation to counts 1, 2, 5, 6, 7 and 9 and quash each conviction; 2. Enter a verdict of acquittal on count 9; 3. Order that there be a new trial in relation to counts 1, 2, 5, 6 and 7; 4. Dismiss the appeal in relation to counts 3 and 4; 5. The appellant's bail is to continue; 6. Reserve liberty to apply CATCHWORDS: CRIMINAL LAW - appeal against conviction pursuant to s 474C(1)(b) of the Crimes Act 1900 - whether the convictions were the result of a miscarriage of justice - whether because of fresh evidence the conviction in relation to each count must be quashed Crimes Act 1900 Crimes (Sentencing Procedure) Act 1999 LEGISLATION CITED: Criminal Appeal Act 1912 Criminal Procedure Act 1986 Firearms and Dangerous Weapons Act 1973 Doggett v The Queen (2001) 208 CLR 343 Dunn and Cody v The King (1937) 57 CLR 170 Eastman v DPP (ACT) (2003) 77 ALJR 1122 Gallagher v The Queen (1986) 160 CLR 392 Histollo Pty Ltd v Director-General of National Parks and Wildlife Service (1998) 45 NSWLR 661 Johns (1999) 110 A Crim R 149 Mickelberg v The Queen (1988-89) 167 CLR 259 Pedrana (2001) 123 A Crim R 1 CASES CITED: R v Grant & Ors (1944) 30 Cr App R 99 R v Hannes [2003] NSWCCA 503 R v Kremmer (2000) 50 NSWLR 538 R v Norfolk Quarter Sessions, ex parte Brunson (1953) 37 Cr App R 6; c/f R v Robert Smith (1924) 18 Cr App R 19 R v Roseanne Catt (1993) 68 A Crim R 189 Spies v The Queen (2000) 201 CLR 603 Suresh v The Queen (1998) 72 ALJR 769 TKWJ v The Queen (2002) 212 CLR 124 The Crown PARTIES: Roseanne Catt FILE NUMBER(S): CCA 60487/01 W G Roser (Crown) COUNSEL: T Molomby SC (Appellant) Director of Public Prosecutions (Crown) SOLICITORS: McGowan Lawyers (Appellant) LOWER COURT JURISDICTION: IN THE COURT OF CRIMINAL APPEAL 60487/01 McCLELLAN AJA ADAMS J SMART AJ WEDNESDAY, 17 AUGUST 2005 REGINA v Roseanne CATT JUDGMENT 1 McCLELLAN AJA : The appellant, Ms Roseanne Catt, petitioned the Governor pursuant to s 474B of the Crimes Act 1900 seeking a review of her conviction on eight counts. The Attorney-General, after considering the petition, referred the case to the Court of Criminal Appeal pursuant to s 474C(1)(b) of the Act. That section provides for the referral of the "whole case" to the Court of Criminal Appeal "to be dealt with as an appeal under the Criminal Appeal Act 1912. 2 After the case had been referred the appellant filed a notice of appeal which was subsequently amended. The amended notice identified the following grounds of appeal. 1. " 1. The convictions of the appellant on eight counts of the indictment presented against her are the result of miscarriage of justice which has two separate but related components: (a) The former detective in charge of the case, Peter Thomas was at all relevant times a corrupt policeman, who was prepared to and did manufacture and invent the evidence upon which the convictions were based. The propensity of Peter Thomas towards corruption and the perversion of justice has been repeatedly demonstrated in other matters occurring both before and after the trial of the appellant; (b) The whole course of the committal and trial process leading up to the convictions of the appellant was contaminated by the fact of the multiplicity of the charges being presented against the appellant at the same time with resulting unfair prejudice to her. 2. In relation to each of the charges on which the appellant was convicted, the conviction is, having regard to the evidence at the trial and the evidence now available, unreasonable and should not be permitted to stand 3. There is fresh evidence capable of establishing, taken alone or in conjunction with other evidence, the reasonable possibility that: (a) the witness Marie Whalen was so unreliable as not to be accepted on contested matters. (b) Det Sgt Thomas knew on 29 July 1989 that Mr Newell was going to collect from office premises at 2-8 Cornwall Street specimens of Mr Catt's consumables in order that they might be subjected to analysis. (c) On or before 31 July 1989, and probably on 29 July 1989, Mr Newell informed Det Sgt Thomas of the advice of Dr Sandfield to the effect that the erratic behaviour being exhibited by Mr Catt may have been the result of overdoses of Lithium and a drug such as Rivotril in combination. (d) Mr Newell had both a motive and an opportunity to contaminate the substances he removed from Mr Catt's refrigerator on 30 July 1989 before they were submitted for analysis. (e) Mr Newell was motivated by antipathy towards Ms Catt and by sympathy towards Mr Catt to such an extent that he himself contaminated the liquids removed by him from Mr Catt's refrigerator on 30 July 1989 before they were submitted for analysis. (f) The request for analysis for the presence of both Lithicarb and Clonazepam was made to the Government Analytical Laboratories when the milk and orange juice were delivered to the Laboratories on 10 August 1989. (g) The request for analysis in respect of both substances was made by or with the knowledge of Det Sgt Thomas prior to 24 August 1989. (h) Contrary to his sworn evidence to that effect, Det Paget did not find containers of Lithium and Rivotril in a black handbag in a drawer in the main bedroom at 2 Cornwall Street on 24 August 1989. (j) The only container of Rivotril dispensed to Mr Catt in existence as at 24 August 1989 was that produced by Mr Newell to Crown prosecuting authorities on 14 May 1991 at the trial of Roseanne Catt. (k) Mr Newell and Mr Catt did not find the container of Rivotril last-mentioned at 1 Cornwall Street on 5 September 1989 as Mr Newell claims. (l) Det Sgt Thomas had an improper motive for securing the conviction of Ms Catt and of doing so by means which include the giving, or procuring the giving of evidence known to be untrue or not believed to be true. (m) Det Sgt Thomas had a propensity to act in the way referred to in (l) above. (n) Det Sgt Thomas put the revolver in the drawer where it was found by Const Cottee on 24 August 1989 in order to incriminate Ms Catt. (o) Det Sgt Thomas used improper methods which were calculated to induce information or evidence to be given by potential witnesses, regardless of its truth, and that in doing so Det Sgt Thomas was motivated by bias against Ms Catt. (p) Det Sgt Thomas offered an inducement to Ms Crista Van der Merwe to give evidence which was false or not believed to be true in order to secure the conviction of Mr Ramon Bracamonte of a criminal offence. (q) Det Sgt Thomas gave false evidence before a magistrate in relation to the investigation of Mr Ramon Bracamonte and Ms Crista Van der Merwe. (r) Mr Thomas, as an insurance investigator, offered a monetary bribe to a potential witness to give evidence which was false or not believed to be true in relation to the investigation of one Ms Margaret Nagy in connection with a fire. (s) Det Sgt Thomas brought improper pressure to bear on Mr Golds to give evidence in a criminal prosecution involving Ms Catt irrespective of considerations as to the truth or falsity of that evidence." 3 This Court is required by s 474L of the Crimes Act to deal with the case in the same way as if "the convicted person had appealed against the conviction" under the Criminal Appeal Act . Acting pursuant to that Act this Court ordered that the factual issues in the appeal be remitted to a judge of a court of trial. Section 12(2) of the Act provides that such a remitter may be made for "determination" of the relevant issues. 4 For the purpose of the remitter the District Court was appointed as the court of trial and Davidson ADCJ conducted a hearing and provided a "judgment on Remitter by the Court of Criminal Appeal under section 12(2) Criminal Appeal Act 1912 for Determination of Factual Issues." Davidson ADCJ states in his judgment that he has proceeded on the basis that the referral of the "whole case" to the Court of Criminal Appeal throws open factual issues relating to both substantive questions of guilt and also whether there may have been a miscarriage of justice due to a failure of the trial process or procedure (see Greg James J "Report pursuant to Part 13A of the Crimes Act 1900 into the conviction of Ronald James Suey" 6 September 2003, paras 5-19-5.2A; Eastman v DPP (ACT) (2003) 77 ALJR 1122). 5 It has been necessary in order to explain the conclusion to which I have come to incorporate significant portions of the judgment of Davidson ADCJ in these reasons. Part 1 - The appellant's trial, conviction and appeal in 1993 6 The appellant was tried on an indictment containing nine counts. The trial commenced on 13 May 1991 and verdicts were returned on 11 September 1991. She was convicted as charged on seven of the counts but acquitted on one, Count 8. On Count 5, the jury returned a verdict of guilty of attempt. The indictment was in the following terms, omitting formal parts: Count 1 ("The rock incident"): That Roseanne Catt on 2 May 1988 at Taree in the State of New South Wales maliciously did wound Barry Catt (s 35 Crimes Act). Count 2 ("The perjury count"): That Roseanne Catt on 3 July 1989 at Taree in the State of New South Wales in the Local Court before Mr G P O'Keefe, Magistrate on an occasion when truth of the same was material did knowingly and willingly falsely swear in substance, as follows, that is to say, that she, Roseanne Catt, at no time struck Barry Catt with a rock (this is the count as amended by consent on 28 August 1991: s327 Crimes Act). Count 3 ("The Swan's Crossing incident"): That Roseanne Catt between 2 March and 30 March 1989 at Swan's Crossing in the State of New South Wales, maliciously did wound Barry Catt (s 35 Crimes Act). Count 4 ("The cricket bat/eucalyptus oil incident"): That Roseanne Catt on 5 May 1989 at Taree in the State of New South Wales did assault Barry Catt, thereby occasioning to him actual bodily harm (s 59 Crimes Act). Count 5 ("The Lithium incident"): That Roseanne Catt between 1 May and 31 July 1989 at Taree in the State of New South Wales maliciously did cause to be taken by Barry Catt a noxious thing, namely, Lithium and thereby did endanger the life of the said Barry Catt (s 39 Crimes Act). The jury acquitted Ms Catt on this count but convicted her of the alternative, i.e. attempting to cause to be taken by Mr Catt a noxious thing, namely Lithium with intent to injure Mr Catt (ss 40, 41, 344A and 427 Crimes Act 1900. See now s 162 Criminal Procedure Act 1986). Count 6 ("Soliciting James Morris"): That Roseanne Catt on 28 July 1989 at Taree in the State of New South Wales did solicit James Morris to murder Barry Catt (s 26 Crimes Act). Count 7 ("Soliciting Vernon Taylor"): That Roseanne Catt between 15 July and 16 August 1989 at Taree in the State of New South Wales did solicit Vernon Taylor to murder Barry Catt (s 26 Crimes Act). Count 8 ("Encouraging Lesley O'Brien"): That Roseanne Catt on or about 24 June 1989 at Taree in the State of New South Wales did encourage Lesley O'Brien to murder Barry Catt (s 26 Crimes Act - acquitted). Count 9 ("Possessing a pistol"): That Roseanne Catt on or about the 24 August 1989 at Taree in the State of New South Wales did have in her possession a pistol, namely a Hopkins and Alan .32 calibre revolver, she then not being a holder of a licence for such pistol (s 25(1) Firearms and Dangerous Weapons Act 1973). 7 On 18 October 1991 the appellant was sentenced by Mathews J to terms of imprisonment as follows: On Counts 1, 3 and 4: concurrent sentences comprising a fixed term of 15 months to commence on 11 September 1991 (the date of verdict) and expiring on 10 December 1992; On Count 2: a fixed term of 3 years commencing on 11 December 1992 and expiring on 10 December 1995; On Count 5: a fixed term of 3 years commencing on 11 December 1995 and expiring on 10 December 1998; On Count 6: a fixed term of 3 years and 6 months commencing on 11 December 1995 and expiring on 10 June 1999; On Count 7: a minimum term of 6 years commencing on 11 December 1995 and expiring on 10 December 2001 with an additional term of 2 years from 11 December 2001 expiring on 10 December 2003; On Count 9: a fixed term of 12 months commencing on 11 September 1991 and expiring on 10 September 1992; 8 The earliest date on which the appellant became eligible for parole was 10 December 2001. 9 On 6 August 2001 the appellant was released on bail pending her appeal. She has four months of her sentence still to serve. The 1993 appeal 10 In 1993 the appellant appealed against her convictions and sentence. The appeals were dismissed on 10 June 1993: ( R v Roseanne Catt (1993) 68 A Crim R 189). The grounds of appeal were as follows: Ground 1: The learned trial judge erred in admitting evidence of the finding of certain property at the home of the appellant upon the execution of a search warrant on 24 August 1989 (sep. jdgts. of 9 May 1991 and 2 June 1991). Abandoned; Ground 2: Her Honour erred in admitting evidence of conversation said to have occurred between the appellant and the witness Shane Golds towards the end of 1988 (sep. jdgt. of 25 September 1991); Ground 3: Her Honour erred in admitting evidence of the witness Amanda Joy Taylor concerning the appellant's behaviour on an occasion in March 1988 (sep. jdgt. of 17 June 1991); Ground 4: Her Honour erred in admitting evidence of the witness Charon (sic) Lee Napper suggesting that in April 1988 the appellant had forged certain documents (sep. jdgt. of 24 June 1991); Ground 5: Her Honour erred in allowing evidence, in relation to the fifth count of the effect of Clonazepam (sep. jdgt. of 26 June 1991; and see T/T p1081-2). Abandoned; Ground 6: Her Honour erred in declining to discharge the jury upon application made after certain matters were put to the appellant in cross-examination (sep. jdgt. of 2 August 1991); Ground 7: Her Honour erred in directing that the trial be conducted upon the basis that the truth of the children's allegation that the witness Barry Robert Catt had assaulted them sexually was not a matter for the jury to determine (sep. jdgt. of 27 August 1991; S/U p175-6, 206FF); Ground 8: (a) There is fresh evidence bearing upon the credibility of the witness Peter Thomas (T1745ff.); (b) the unavailability of this evidence at the trial has caused a miscarriage of justice. Abandoned; Ground 9: The verdicts of guilty are unsafe and unsatisfactory. 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. 12 The effect of these provisions in the circumstances of a previous appeal, as occurred in the present case, was considered by this Court in the matter of Johns (1999) 110 A Crim R 149. In his Honour's reasons for judgment Greg James J referred to the article by A Castles, "Executive References to a Court of Criminal Appeal" (1960) 34 ALJ 163 as providing an authoritative discussion of the relevant principles. His Honour described those principles in terms which are relevant to the present proceedings. His Honour said: "It has been held that on such a reference the court was re-invested with jurisdiction notwithstanding an appellant had exercised and exhausted the ordinary right of appeal: Gunn (No 1) 43 SR (NSW) 23; but that the court was not called on to re-adjudicate upon any ground of appeal which had already been heard and disposed of unless some new matter arose (for example, fresh evidence) warranting a reconsideration ( Gunn (No 2)) (1942) 43 SR (NSW) 27). Mickelberg (1989) 167 CLR 259; 43 A Crim R 182, which confirmed the current test for the admissibility of fresh evidence on appeal, was itself an appeal from the Court of Criminal Appeal of Western Australia on a reference of the whole case under a similar provision. The jurisprudence developed as governing the reception of new and fresh evidence on appeal has been held to be applicable to these matters: Mickelberg; Davies and Cody (1937) 57 CLR 170. Mickelberg established that: "Prima facie, the reference of the whole case required the Court of Criminal Appeal to consider the case in its entirety, subject only to the limitation that it 'be heard and determined ... as in the case of an appeal by a person convicted'. That limitation necessitates that the matter be determined by 'legal principles appropriate to an appeal': Ratten (1974) 131 CLR at 514, per Barwick CJ. See also R v. Gunn [No. 1] (1942) 43 SR (NSW) 23 at 25, per Jordan CJ and Allen, Allen and Winter (1910) 5 Crim. App. R. 225 at 226. It has been held that, where the whole case is referred, the court may consider matters not relied upon in the petition ( R v. Gunn [No. 2] (1942) 43 SR (NSW) 27 at 31 and matters not specified in the reference ( Reg v. Chard [1984] AC 279. On the other hand, it has been said that, as a matter of practice, the considerations may be confined to those in the petition or the reference: see Re Matthews and Ford [1973] VR 199 at 201; Reg v. Chard [1984] AC at 292-293. And in R v. Gunn [No. 2] (1942) 43 SR (NSW) at 29 Jordan CJ. stated: 'In a case in which there has already been an appeal which has been disposed of on the merits ... the court, in the case of a reference such as the present, is not called upon to re-adjudicate upon any ground of appeal which has been already heard and disposed of, unless some new matter has come to light which makes a reconsideration of the ground necessary or desirable.' The words of s 21 (a) of the Code, so far as they require 'the whole case ... [to] be heard and determined', permit of only one meaning. It is the whole case which must be passed upon by the application of legal principles appropriate to criminal appeals. That being so, the power to exclude matters from consideration is properly to be seen as an aspect of the inherent power of a court to control its own proceedings. That power will authorise the exclusion of issues which are frivolous or vexatious: see Jackson v. Sterling Industries Limited (1987) 162 CLR 612; Tringali v. Stewardson Stubbs & Collett Limited (1966) 66 SR (NSW) 335; Metropolitan Bank v. Pooley (1885) 10 App. Cas. 210. However, subject to an issue being properly excluded as frivolous or vexatious, it is, in our view, the duty of a court to which there has been a reference of the whole case to pronounce upon the whole case as presented." 13 As his Honour observed it is the duty of this Court to consider and determine the appeal having regard to the whole of the case as presented at the trial and the evidence received by Davidson ADCJ and his Honour's findings. 14 The applicability of r 4 of the Criminal Appeal Rules relating to admissions is replaced by s 474L and r 78. In so far as the appeal relates to matters of fact no leave is necessary, notwithstanding s 5 of the Criminal Appeal Act. The approach to the findings made by Davidson ADCJ 15 Substantial evidence was given in the hearing before Davidson ADCJ and his Honour made many findings of fact. Many of those findings are sought to be challenged by the Crown in this appeal in submissions which extend over hundreds of pages and include detailed references to various matters in the evidence. In many respects the submissions seek to persuade this Court that, having regard to all of the evidence which is now available, the Crown case in relation to each count is overwhelming. 16 The correct approach to be taken when a matter or issue is remitted to a court of trial for determination, was considered by this Court in Histollo Pty Ltd v Director-General of National Parks and Wildlife Service (1998) 45 NSWLR 661. The reasons for decision in that appeal make plain that an appeal to this Court lies with respect to any determination in relation to a matter of fact made by Davidson ADCJ. However, that appeal is confined to the right of appeal conferred by s 5 of the Criminal Appeal Act. Accordingly, the appeal is not by way of rehearing and this Court may not intervene unless satisfied that an error has occurred. This Court has expressed the relevant test in the following terms: "Error may be demonstrated if there is no evidence to support a particular finding, or if the evidence is all one way, or if the judge has misdirected himself. But, unless error has first been established, this Court has no power to substitute its own findings for those of the trial judge." R v Simmons (1995) 79 A Crim R 31 at 35. 17 Accordingly, in so far as the Crown submissions seek to persuade this Court to come to a different view of the facts than was reached by Davidson ADCJ, unless appellable error is revealed, the submission must be rejected. 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. 19 In time Roseanne began making allegations that Barry Catt was and had been sexually and physically assaulting his four children. The Crown alleged these allegations were made for the purpose of alienating Barry Catt from friends and associates and encouraging people to side with Roseanne. It was alleged to be the reason Roseanne gave to people for wanting him put away. The children, whose natural mother had left home in 1981, when they were quite young, were allegedly manipulated by Roseanne and confirmed the story of abuse. On 26 November 1990 Barry Catt was arraigned in the Supreme Court at Taree to answer charges of sexual assault of each of his four children. He was tried and acquitted. 20 When Roseanne moved into Cornwall Street, with Barry Catt's consent, she not only took over the running of the household but assumed effective control of his panelbeating business, leaving him to do only manual work on the floor of the workshop. The Crown alleged that Barry Catt never agreed to Roseanne being a partner. He said he had no idea until after the event that she had notified the various organisations involved with his business, such as the Department of Motor Transport, that she had become a partner. The Crown alleged that she forged his signature on a number of documents and also forged requests for the surrender of various insurance policies. Barry Catt's previous girlfriend, Charon Napper (Clarke), gave evidence that, contrary to what Roseanne alleged, she had never signed a surrender of insurance policies in her name. The Crown accepted that Roseanne had put money into the business. The amount she had injected was not agreed. The Crown alleged that Roseanne sought, for the purpose of Family Court proceedings heard in August 1989, to exaggerate her financial interest in and control of the business and denigrate its condition before she became involved with it. 21 After the events known as "the rock incident", a summons was taken out against Barry Catt for apprehended violence by the appellant and each of the four children. In consequence he moved out of the main Catt residence at 1 Cornwall Street and lived in the office on the other side of the road. According to him he continued to visit the appellant at No 1 but only at her request and usually late at night. His understanding of the order of apprehended violence, as explained to him by the appellant, was that he was prohibited from seeing her or the children at his own behest, but was permitted to do so if she or they requested it. In early February 1989 he was arrested and charged with the sexual assaults on his four children for which he was later acquitted. Despite this event, he said that he was continuing to see the appellant from time to time on an intimate basis, although only when she requested it. Part 4 - An outline of the facts in relation to each count and the appellant's defence 22 It is convenient to summarise the nature of the evidence tendered at the trial on each count. I am indebted to the judgment of Sheller JA in the earlier appeal for a concise statement of the relevant material. First charge in the indictment - "the rock incident" 23 For reasons which did not emerge at the trial there was ill feeling between the appellant and Mary Warwick, Barry Catt's sister. On 2 May 1988 the appellant drove with her son, Peter Bridge, another apprentice at the panelbeating yard, Shane Golds, and the three older Catt children, Christopher, Sharon and Julie to Mary Warwick's house. According to both Shane Golds and Mary Warwick, on arrival the appellant abused Mrs Warwick claiming she had had sex with her own brother and that her two little girls were illegitimate. When Mary Warwick tried to close the security door the appellant slapped her on the face, took the keys from the security door and threw them into a rockery. The appellant and the others who had accompanied her there were back in her car when Barry Catt arrived in another vehicle. He had realised that something was amiss when he found that two apprentices and the appellant were absent from the panelbeating yard. 24 Barry Catt approached the appellant in her car, said something to her and turned the key to the off position. She yelled at him and hit him with the back of her hand. He retaliated in the same way. He then walked away and she followed him and started to pummel him on his back. He hit her again on the cheek, knocking her glasses off, and told her to wake up to herself. The Crown alleged that Shane Golds and Peter Bridge at the appellant's instigation attacked Barry Catt who fell down on all fours. The appellant picked up a heavy rock and struck Barry Catt who gave evidence of feeling the rock hitting his back and his head and hearing the appellant say "I'll fucking kill you, you cunt." She then threw the rock down, called her group off and drove away. 25 Barry Catt gave evidence that a neighbour called the police and took him to hospital where he had four stitches put into a gash on his head. 26 The Crown case at the trial was supported by Shane Golds. He had at first supported the appellant's account of the incident. Indeed, on 3 July 1989 he gave evidence for the appellant in assault proceedings brought by her. At the trial he said that his evidence on that occasion was false. He said that later on the day of the rock incident there was a meeting at the appellant's home at which the appellant encouraged Shane Golds, Peter Bridge and the Catt children to make statements that what occurred was not that the appellant hit Barry Catt with the rock but rather that Mary Warwick did. They made such statements. His reason for giving false evidence he said, was that the appellant had told him what he must say and had threatened him with the loss of his job if he did not. He said he was scared of the appellant who asked him some time after the rock incident, "Do you need any money to knock Barry off and if you don't, do you know of anyone else who will?" 27 The appellant's version of the incident given by her and each of the three children was that she had gone on Barry Catt's suggestion to visit Mary Warwick's house to sort out a disagreement which had arisen between them. She had the children with her rather than them being at school because Barry Catt had belted them the night before. The appellant claimed that it was Mary Warwick who was abusive, that no blows were struck between them and that they were on the verge of leaving when Barry Catt arrived and took the keys from her car and attacked her without provocation. The appellant alleged that Barry Catt was being restrained by the two boys when Mary Warwick picked up a rock from the rockery. She first tried to use the rock to strike at the appellant but missed. She then tried to hit the boys, but they ducked and the rock hit Barry Catt instead. The appellant denied that she had ever threatened Shane Golds or ever suggested that he give a false version of the events. The three older Catt children were called by the appellant and gave evidence supporting her version of events. 28 In her remarks on sentence Mathews J said: "The jury's finding that Roseanne Catt was guilty of malicious wounding in relation to this incident shows that it accepted the Crown version and rejected the version given by the defence. And it must be said that this was not a surprising outcome in the light of the conflicting versions given at different times by some of the defence witnesses." Second charge in the indictment - "The perjury count" 29 Immediately after the incident which formed the basis of the first charge, the appellant drove to the Taree Police Station and laid the complaint of assault against Barry Catt which came on for hearing in the Taree Local Court on 3 July 1989. The appellant as complainant gave sworn evidence in which she described the incident in much the same terms as she did subsequently at the trial. The appellant was charged with committing perjury at Taree Local Court on 3 July 1989; s 327 of the Crimes Act. The appellant denied that what she said on oath at Taree Local Court about the rock incident was false. 30 In her remarks on sentence Mathews J said: "Her conviction in relation to this charge means that the jury accepted not only that her version of the events of 2 May was a false one, but that it was deliberately false." Third charge in the indictment - "The Swans Crossing Incident" 31 The Crown alleged that on 12 March 1989 the appellant and Barry Catt went for a picnic together at Swans Crossing. At one stage during the picnic they were lying in their swimming costumes on a rug drinking stout when the conversation turned to Mary Warwick. Barry Catt gave evidence that the appellant then became very angry and started to drive a knife she was using to cut lemons through the rug. Barry Catt told her to stop, to which she said words to the effect of "I'll fucking stab you too" and proceeded to prod him twice with the knife and then drove the knife into his left side just below his ribs. He quickly walked off and approached a man who was having a barbecue some distance away. The Crown called this man, Garry Jeffrey, who gave evidence that he had given Barry Catt a t-shirt to put over his bleeding wound. Meanwhile the appellant having loaded up the car drove up to Barry Catt and told him to get in. He refused saying "No, you will stab me again." He then walked and hitchhiked home. Later that day the appellant bathed his wound and advised him it did not need stitching. The wound became infected. The Crown called evidence from Dr Goddard who came to the workshop as a customer and remembers Barry Catt showing him the wound. 32 The appellant denied inviting Barry Catt to a picnic at Swans Crossing and testified that Barry Catt followed her to Port Macquarie on the weekend this incident occurred. She claimed she was lying on the ground at Swans Crossing when Barry Catt approached her and started stabbing the rug. She put her foot out and he fell backwards or onto his side. The appellant in evidence would not concede that Barry Catt had any injury at all that day. If he did she claimed to know nothing about it. 33 At the trial more evidence was directed to what occurred the night before the Swans Crossing incident than to the incident itself. In particular the Crown alleged that the appellant had deliberately attempted to manipulate evidence which might otherwise be available for use against her and had attempted to persuade the proprietor of a motel, Janet Eslick, where she and Barry Catt had stayed on the previous night, 11 March, to say that she had stayed there alone. This was to support her version of events that she and Barry Catt had not gone to Swans Crossing together on 12 March, but rather that she had gone there alone and that he followed her and arrived unexpectedly. The appellant relied upon this additional evidence as showing that Barry Catt was unworthy of credibility and was being fed information by the police as to the details of the evidence during the course of the trial. In her remarks on sentence Mathews J said: "The jury's verdict indicates that it accepted Barry Catt's evidence, and also, presumably, that of the motel proprietor. This raises serious questions about the prisoner's attempts to manipulate evidence which she feared might be used against her. This is not a matter which can be used in aggravation of sentence, but it certainly deprives her of any leniency by reason of contrition or remorse." 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: "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. 48 The appellant told them her husband was a monster who had sexually assaulted his children and then asked Morris if he wanted to make some money. When asked why, she said: "To do a job on my husband - a good job on my husband." She mentioned that she would pay him $10,000 to break Barry Catt's arms and legs and that he would get an extra bonus if he killed him. Mr Morris' sister, Sandra Ridgeway, was called by the Crown to give evidence and confirmed this conversation. Mr Morris said he saw the appellant about a week later and she asked had he thought about her proposition. She added that she would like it to be done as soon as possible. The matter, however, was taken no further. 49 The appellant denied the conversations with James Morris. She said she was at the club that night with Lucy Parkinson and others and remembered Lucy talking to someone called Sandra, but, she herself did not talk to Sandra Ridgeway, nor did she leave the table to speak to anyone at the bar, let alone James Morris. She also denied that she owned the sort of clothing which was described by Mr Morris and his sister. The appellant called Lucy Parkinson who said that as far as she knew there was no conversation between the appellant and James Morris. She also described James Morris as being very drunk. The appellant's counsel commented to the jury that it was an extraordinary conversation to take place between two people who had never met before. In her remarks on sentence Mathews J said: "Nevertheless the jury was clearly satisfied that this incident took place as described by Mr Morris. I can only assume it indicates the extent of the prisoner's recklessness at this late stage of her relationship with her husband." Seventh charge in the indictment - "soliciting Vernon Taylor" 50 Mr Vernon Taylor gave evidence of the circumstances in which he began associating with the appellant in late 1988 or early 1989 and visiting her at the car yard to photograph her Corvette. According to his evidence he spent a considerable amount of time at Cornwall Street. He used to call around to the office on two or three afternoons a week. He said the appellant began to tell him more and more about how Barry Catt was sexually molesting his children. 51 Taylor was a professional kangaroo shooter and the appellant asked him at one stage did he have any guns, to which he replied yes. Some weeks later she asked if he would do a job for her. She said: "I want you to bump him off for me because if he is out of the road, it is all finished and there will be no more problems." Taylor knew that she was referring to Barry Catt. The constant thread in all her conversations, he said, was that Barry Catt was a monster who had sexually assaulted his children and that they would be better off without him. She went on to say that she would pay him $20,000 if he would do the job. She propositioned him a couple of times but he eventually said that he was not interested in making money that way. She told him not to tell anyone about it and mentioned that if he did she would know about it or if he went to the police she would know because she had friends there who would do anything for her. 52 The appellant alleged and Vernon Taylor admitted in cross examination that he was "sweet" on her and this was the reason he visited her workshop so often. The appellant's case was that Taylor's motivation for lying about the alleged conversation was that he was in fact a spurned lover. Eighth count in the indictment - "encouraging Leslie O'Brien" 53 Barry Catt gave evidence of overhearing a conversation at Taree Leagues Club between the appellant and Leslie O'Brien wherein O'Brien promised to shoot Barry Catt himself and get rid of the body, if she could entice him up to the farm. The Crown did not call O'Brien. 54 The appellant agreed that she had been at the Leagues Club on the relevant night. She had gone there with O'Brien after attending a wedding. However, from the moment they arrived she alleged that he stood at the bar talking to someone else while she stayed at the table talking to her friends. Accordingly, there was no explanation as to how Barry Catt could have seen her talking to O'Brien. 55 On this count the jury acquitted the appellant. Ninth count in the indictment - "possessing a pistol" 56 On 24 August 1989 the appellant was arrested. The Crown alleged that when the police executed a search warrant at the Catt residence on that date they found an unlicensed pistol in her en suite bathroom. Barry Catt gave evidence of an occasion when, a couple of months before they were married, the appellant had first shown him this pistol. The Crown also called evidence from Barry O'Brien and Beverly Lyons of conversations with the appellant when she talked about her gun. 57 The appellant denied she ever had a pistol or that she had ever shown one to Barry Catt or talked to Beverly Lyons about her gun. When the police located it during the search the Crown accepted that she said "What is it, a toy. I've never seen it before." The defence was that the police had planted the pistol or more particularly that Det Thomas had. She argued that any number of people had access to the en suite bathroom where it was located. 58 In her remarks on sentence Mathews J said: "The jury's verdict indicates that the police evidence was accepted in this respect. There was in any event considerable independent evidence of Roseanne Catt telling other people that she owned a gun." The defence of the appellant at the trial 59 The nature of the defence put by the appellant at the trial is significant in the determination of the present proceedings. The appellant denied each of the charges and gave an account of the relevant facts at odds with the Crown case. However, of greater significance is the fact that the appellant said that the whole of the Crown case against her was a concoction, being the product of a conspiracy between Barry Catt and the police, in particular, Det Sgt Thomas. The appellant said that they deliberately manufactured the charges for the sole purpose of assisting Barry Catt in the various court proceedings which he was facing at the time, and which he then appeared to be losing. 60 Accordingly, as Mathews J pointed out at the trial, the jury was presented with two clear alternatives. Either the appellant was a manipulative, evil woman, as the Crown contended, or she was the innocent victim of a conspiracy, as the defence contended. There was no intermediate version on the evidence as presented to the jury. 61 The verdict of guilty on eight of the nine counts meant that the jury essentially accepted the Crown version of events and rejected the defence case of a conspiracy. However, those verdicts now require careful reconsideration having regard to the fact that there is significant fresh evidence available which, if accepted by a jury, would support the conspiracy allegation. Part 5 - The appellant's case in this appeal: general matters 62 The appellant submits to this Court that, because of the fresh evidence tendered and admitted before Davidson ADCJ and the findings of fact which his Honour has made, the conviction in relation to each count must now be quashed. Although some of the fresh evidence is directly relevant only to an individual count, it is submitted that, because all of the counts were heard together, the difficulties which are now apparent with the evidence in relation to any particular count affects the reliability of the jury's verdict in relation to the others. The essential submission is that because each count required the jury to reach a view as to the appellant's credit and determine whether the appellant's evidence as to the relevant events should be rejected, and because the fresh evidence raises serious doubts as to the Crown case, on at least some of the counts and, furthermore, if accepted would be consistent with the conspiracy alleged by the defence, a jury properly instructed and, having regard to the fresh evidence may have come to a different view in relation to all of the counts. 63 The fresh evidence comes from a number of sources and must be analysed separately. It includes the evidence of the Catt children which is now unfavourable to the appellant, medical evidence with respect to the allegation that the children were sexually abused, evidence with respect to the police investigation of the matters, evidence as to the method of investigation of the police officer in charge of the matter, Det Sgt Thomas evidence of later statements by Det Sgt Thomas as to his actions in the investigation, and other evidence which casts doubt on evidence which was apparently accepted by the jury at the trial. 64 The evidence tendered before Davidson ADCJ related both to specific counts and to issues of general relevance. Before considering the evidentiary position of each count it is appropriate to consider the evidence which has general significance. 65 It will be obvious that the defence case at the trial carried significant risks. If the jury concluded that the "conspiracy theory" had no basis it would be likely to influence the view which it formed about the credit of the appellant and could affect its conclusion in relation to each count, even those counts where the involvement of Det Sgt Thomas in the gathering of evidence was minimal. Was there a conspiracy to create a case? - evidence with respect to Det Sgt Thomas 66 Evidence was tendered before Davidson ADCJ in relation to the methods which Det Sgt Thomas employed both as a policeman and as a private enquiry agent when seeking evidence in relation to events which may have involved a crime. Evidence was also tendered of statements which he has made since the trial in relation to his investigation of the appellant and the collection of evidence for the brief which was prepared for the prosecution. The evidence is directly relevant to at least counts five and nine and it is submitted by the appellant that, if accepted by a jury, raises a relevant doubt as to whether the Crown evidence in relation to any of the counts could be accepted. 67 There were a number of unusual aspects of the investigation. They are discussed by Davidson ADCJ and only a brief reference to them is now necessary. The base used for the investigation 68 The investigation was carried out from 27 Milligan Street, a home owned by a member of the Newell family, and not the Taree police station. Det Sgt Thomas said that he did not trust the Taree police. This, to say the least, was odd and had the consequence that the activities of the investigating police were isolated from the normal casual oversight which would occur if conducted in a conventional manner. The evidence of Barry O'Brien 69 An unusual sequence of events relates to an apparent forcible entry of the house of the appellant's son, Mr Bridge. On 15 September 1989, and after the appellant had been granted bail she, and others alleged that they saw Mr Catt and one of his employees, Mr Barry O'Brien running from Mr Bridge's house. There were signs of forcible entry of the house and although the matter was reported to the police no action was taken. Mr Catt was interviewed by the police and denied any involvement in the event. However, Mr O'Brien was never interviewed. Davidson ADCJ finds that this was apparently due to an instruction issued by Det Sgt Thomas. 70 Mr O'Brien gave evidence at the appellant's trial which was adverse to her both generally and particularly with respect to counts 5 and 9. 71 When cross examined at the Section 12 hearing about the alleged break in, his dealings with Det Sgt Thomas, and his evidence at the trial, Mr O'Brien at times gave inconsistent testimony. Having regard to all of the evidence Davidson ADCJ concluded that: "The inference is open that Det Sgt Thomas may have used his seniority and influence to prevent the proper investigation of an allegation of a serious crime to protect Mr Catt and in order to avoid the possibility of Mr O'Brien being charged and perhaps compromised as a witness in the case against Ms Catt." 72 The evidence upon which this finding was based was available at the trial and accordingly, it merely provides the background for the assessment of any fresh evidence. However, it becomes one of a number of significant pieces of evidence which together raise serious questions in relation to the appellant's case that there was a conspiracy against her. The issue of a search warrant 73 Davidson ADCJ relates the circumstances of the issue and service of a search warrant in respect of the premises at 1 Cornwall Street. Although objection was taken at the trial to evidence being given of materials seized in purported compliance with the warrant, the evidence was admitted. A challenge to the trial judge's ruling was not pursued on the appeal. 74 Irregularities with respect to the execution of search warrants and the disposition of property seized pursuant to them were also raised. In relation to these matters Davidson ADCJ draws an inference "adverse to Det Sgt Thomas from the evidence in relation to the disposition of some of the property in purported compliance with the warrant." 75 However, again this evidence, not being fresh evidence, only contributes to the background material in relation to the appeal. The appellant's bail applications - criticism by Allen J The appellant's bail applications - criticism by Allen J 76 Davidson ADCJ reviewed the material in relation to the appellant's bail applications, in particular, the occasion on 22 September 1989 when her private prosecution of Mr Catt in respect of the rock incident was due to commence and she was arrested for alleged breach of her bail conditions. In relation to these events Davidson ADCJ was extremely critical of Det Sgt Thomas. His Honour said that "whether or not Ms Catt's case had merit, it was lawfully before a court, the authority of which was flouted." 77 Both Allen J, who dealt with various bail applications made by the appellant and Mathews J, at the trial, commented adversely on Det Sgt Thomas in relation to the events surrounding bail matters. However, Davidson ADCJ concludes that the relevant material was before, or capable of being before, the jury. His Honour concluded: "It is therefore not fresh but it does provide background or contextual evidence against which to assess fresh evidence which supports the conclusion that the lack of objectivity to which Allen J (and Mathews J) referred, crossed the line into malice and abuse of power. It also tends to support Ms Catt's claim of the existence of collusive conduct on the part of persons including Det Sgt Thomas to secure her conviction irrespective of the merit in the prosecution case." 78 As a result of the criticisms by Allen J Det Sgt Thomas was directed not to do any further work on the Catt matters. However, he did not obey that directive and Davidson ADCJ formed the opinion that "it is likely that he persisted in being so involved for unprofessional and improper reasons." Pressure on witnesses by Det Sgt Thomas 79 There was evidence available at the time of the trial and considered by Davidson ADCJ of attempts by Det Sgt Thomas to damage the appellant by complaints made about her and her association with a former Attorney General and Allen J. The allegations were entirely baseless. 80 Davidson ADCJ formed the view that the letters which Det Sgt Thomas wrote making the various allegations were an indication of "his propensity to improperly use his office to damage Ms Catt irrespective of the risk of gratuitous collateral damage to others." His Honour also said that "it indicates a lack of objectivity having descended into malice and abuse of power." 81 A number of witnesses were called at the Section 12 hearing on the question whether Det Sgt Thomas, either as a police officer or insurance investigator, had a propensity to bring improper pressure to bear on prospective witnesses and others. His Honour concluded that there was evidence which, if accepted, could lead to a conclusion that Det Sgt Thomas had applied pressure to Ms Marie Whalen, Mr Frank Farrar, Dr Richardson, Mr Barry O'Brien, Mr Michael Jones, Mr George Baird, Mr Shane Golds and Mr James Morris. It will be necessary to examine his Honour's findings with respect to some of these persons in detail. 82 The submission for the appellant is in effect that, if called at the trial, this evidence would have thrown new light favourable to the appellant on the evidence already before the jury as to the investigative methods of Det Sgt Thomas, particularly as to the evidence of important witnesses such as Ms Whalen, Mr Golds and Mr Morris, but also as to the finding of the revolver and the part Det Sgt Thomas played in relation to the investigation leading to the charge in Count 5. The evidence of Mr Arthur Bates regarding Det Sgt Thomas 83 Mr Bates said that in the 1980s he had been the licensee of hotels at Moree and Lawrence. The Lawrence Hotel had been leased to a man named Mr Ray Coucher. In 1987 the hotel burned down and, although insured, it appears that the insurer had gone into liquidation and no claim in respect of that fire was met. 84 As a consequence of the fire, Mr Bates said that he had been charged by Det Sgt Thomas with arson. Twelve months later the charge was "no billed". 85 As Davidson ADCJ found whatever may have been the strength or weaknesses of the Crown's case, the fact is that there was a committal for trial involving the finding of a prima facie case. There is some evidence as to a similarity between these events and those of the fire in the appellant's premises. However, in my opinion, this incident has no significance to the appeal. Mr Ramon Bracamonte/Ms Crista Van der Merwe 86 Davidson ADCJ made various findings in relation to issues involving Mr Bracamonte and Ms Van der Merwe. Neither Mr Bracamonte nor Ms Van der Merwe was called at the trial, the matter not coming to light until after its conclusion. Nor was either of them called at the section 12 hearing. The facts established came in documentary form. 87 In an affidavit submitted in support of the granting of the petition, Mr Harrison, Crown Prosecutor, deposed that he acted for the Crown in the trial of Mr Bracamonte and Ms Van der Merwe who were charged with damaging a building with intent to gain financial advantage. 88 Other evidence establishes that the building had been a restaurant operated by the accused jointly at the time of the alleged offence. Ms Van der Merwe was then Mr Bracamonte's fiancé and they subsequently married. 89 The trial was listed to commence on 27 July 1992. One of the principal issues was to be whether the accused were in fact at their domestic premises and away from the restaurant building when the bomb exploded. 90 Mr Harrison deposed that on 13 July 1992, solicitors for each of the accused saw him in chambers. They produced a copy of what purports to be the transcript of an electronically recorded conversation which Davidson ADCJ was satisfied took place between Ms Van der Merwe and Det Sgt Thomas on 31 May 1989. 91 Det Sgt Thomas was one of the police officers involved in investigating the matter. He had given evidence at the committal proceedings and was due to give evidence if called at the forthcoming trial as was his colleague, Det Connolly. Mr Harrison elected not to call either of these officers. 92 Notwithstanding the absence of witnesses to the issue, Davidson ADCJ indicated that he was satisfied on the basis of Mr Harrison's evidence that the transcript which was tendered is sufficiently reliable as a source of evidence from which to draw inferences and base conclusions. 93 The transcript attributes the following words to Det Sgt Thomas which were addressed to Ms Van der Merwe, "Ramon (Bracamonte) did it, Ramon did it. There's no risk in the world. How he did it I'm not sure. I don't know whether you were there or you weren't there but I know you knew about it. You helped him set this thing up". Further words are attributed to him including an assertion that Ms Van der Merwe was the "ringleader of it". He states, "You know you're in heaps of big shit Crista (Van der Merwe), I The transcript attributes the following words to Det Sgt Thomas which were addressed to Ms Van der Merwe, "Ramon (Bracamonte) did it, Ramon did it. There's no risk in the world. How he did it I'm not sure. I don't know whether you were there or you weren't there but I know you knew about it. You helped him set this thing up". Further words are attributed to him including an assertion that Ms Van der Merwe was the "ringleader of it". He states, "You know you're in heaps of big shit Crista (Van der Merwe), I'll tell you how". Ms Van der Merwe is then recorded as denying that she had done anything and Det Sgt Thomas responds that "the whole thing's been set up to defraud the insurance company and you played a major part in it". 94 Ms Van der Merwe then enquires of Det Sgt Thomas, "Well, you tell me more about the deal" to which he responds, "Well what are you going to do – the deal is this – you can walk out if you (give?) me Ramon up. That's it." 95 Having spoken of the "deal", Det Sgt Thomas is then recorded as indicating how it might be implemented. "Det Sgt Thomas: I will go to the court and say look….. 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". Ms Van der Merwe: But I can't lie". 98 At page 7, Ms Van der Merwe: "Ramon never discussed the actual bombing with me….". 99 At page 8, Det Sgt Thomas after Ms Van der Merwe indicated that she would speak to her solicitor, "You can mention this Crista – if you give me the evidence I'm looking for against Ramon and that's telling me everything you know about it and I'm satisfied with it, I'll make representations to……change his mind and get you indemnify to defer prosecution (sic). But you've got to give me Ramon and anybody else who might be involved". Ms Van der Merwe: If I don't know that part?. Det Sgt Thomas: Just tell me the truth. Tell me how it might have been how it might have happened". 100 At page 9 of the transcript, Det Sgt Thomas advised Ms Van der Merwe to go to a "completely independent" solicitor and say "can the police do it". 101 Davidson ADCJ points out that it is not uncommon for the police to "do a deal" with an accomplice who is subsequently called as a witness in the Crown's case against the co-accused. 102 Such a witness may be given an indemnity from prosecution or at least a "use" undertaking (s19 Such a witness may be given an indemnity from prosecution or at least a "use" undertaking (s19 Director of Public Prosecutions Act 1986). However, such a witness should be either already dealt with for his/her part in the offence or a nolle prosequi entered (R v Grant & Ors (1944) 30 Cr App R 99 ; R v Norfolk Quarter Sessions, ex parte Brunson (1953) 37 Cr App R 6; c/f R v Robert Smith (1924) 18 Cr App R 19; but see now ss17 and 165(1)(d) Evidence Act 1995). 103 Davidson ADCJ points out that current practice in New South Wales seems to be that an indemnity from prosecution or a "use" undertaking together with an appropriate warning under s165 of the Evidence Act 1995 is regarded as sufficient. Sometimes no indemnity or undertaking is given, in which case privilege against self-incrimination is raised, reliance is then placed by the Crown on the court granting a Certificate under s128 of the Evidence Act 1995. 104 Davidson ADCJ expressed conclusions in relation to this material in the following terms: "The issue is whether on a reasonable interpretation the contents of H.Ex L ("the transcript") may be regarded as an exhortation, express or implied, by Det Sgt Thomas to Ms Van der Merwe that she should provide information to the police as the basis for later evidence on oath or affirmation, regardless of its truth or whether she believed it to be true, in return for her not being prosecuted. The portions of the document which tend to support that proposition are those in which she makes it clear that she had no information which could implicate Mr Bracamonte but nevertheless Det Sgt Thomas continues to press her to "give him up" and at one point said, "I don't care if you were involved, just tell me you weren't". The passage "just tell me the truth, tell me where it might have been, how it might have happened" immediately after Ms Van der Merwe had asked rhetorically what would be her position if she did not know who "might be involved" also tends to be indicative of an attitude of Det Sgt Thomas that he was not concerned about the truth of any statement Ms Van der Merwe might have made as a witness provided it did implicate Mr Bracamonte. On the other hand Det Sgt Thomas is recorded a number of times as having indicated to Ms Van der Merwe that he wanted "the truth" from her and his invitation to her that she consult a "totally independent" solicitor before deciding to make a statement tends to militate against the position for which Mr Molomby of counsel for Ms Catt contends. On the other hand Det Sgt Thomas is recorded a number of times as having indicated to Ms Van der Merwe that he wanted "the truth" from her and his invitation to her that she consult a "totally independent" solicitor before deciding to make a statement tends to militate against the position for which Mr Molomby of counsel for Ms Catt contends. The conversation recorded although ambiguous in places, is capable of supporting a conclusion adverse to Mr Thomas of complicity in a serious criminal offence. It supports the contention that Det Sgt Thomas had a propensity to apply pressure by way of promise as well as threat to potential witnesses in a way calculated to produce false evidence. This further supports the conclusion that he may have exhibited that propensity in the Roseanne Catt investigation and trial." 105 I accept the conclusion of Davidson ADCJ in respect of this evidence. The conversation raises serious issues with respect to the propensity of Det Sgt Thomas to pressure witnesses to provide false evidence. There was also evidence before Davidson ADCJ which his Honour found suggests that Det Sgt Thomas may have committed perjury at the committal proceedings of Mr Bracamonte and Ms Van der Merwe. This material would only be relevant if Det Sgt Thomas gave evidence and is not directly relevant to the issues which must be resolved in this appeal. The investigation of a fire at the Royal Hotel at Monto 106 Davidson ADCJ received evidence relating to the investigation of the fire which on 12 June 1999 destroyed the Royal Hotel at Monto in Queensland. His Honour's account of the evidence is as follows: "Ms Margaret Nagy After the fire Ms Nagy, a licensee of the hotel jointly with her husband George, said she was contacted by Mr Thomas who was then an insurance investigator. At that time she was separated from her husband. She said in evidence at the section 12 hearing that Mr Thomas had said to her words to the effect, "If you tell me that your husband torched the pub, I will make you a very wealthy woman" (H/T p1778). She said that her husband had never "torched the pub" nor had he told her that he had and she had told Mr Thomas so. Thereafter Ms Nagy said Mr Thomas contacted her again offering bottles of wine and "comfort" which she said she refused. She claims he said again, "Why don't you convince me that your husband has done it and I will make you a wealthy woman? I will make it worth your while. Just tell me the truth. I can even give you some money to pull you through She claims he said again, "Why don't you convince me that your husband has done it and I will make you a wealthy woman? I will make it worth your while. Just tell me the truth. I can even give you some money to pull you through". She claims that he told her that he would put her husband away for life and that she could rest assured that she would live thereafter in comfort. Ms Nagy said that on the night of the fire she had been living at the hotel with Ms Gina Hart, a family friend. Ms Hart gave evidence and said that on the night of the fire she had been living in Mitchell Street about three to four kilometres from the hotel. Having seen signs of the fire she had gone to it and had there spoken to various members of the Nagy family. Ms Hart said that some months later she had been telephoned by Mr Thomas and had gone to see him in Brisbane. He had said that he was certain that Mr Nagy had started the fire. Ms Hart said that she had expressed doubts about this and had referred to the financial costs from the loss of trade which would have ensued to the Nagy family if he had. Mr Thomas had then referred to income protection insurance cover which Mr Nagy had. Ms Nagy claimed that Mr Thomas had asked whether she had ever had a sexual relationship with Mr Nagy. She denied having done so and he said words to the effect that he, Thomas, had come prepared to offer her $10,000 on the off-chance that during a wild moment of passion in "pillow conversation" Mr Nagy admitted to her that he had lit the fire. She said that again she denied that she had ever slept with Mr Nagy. In cross-examination, Ms Hart was referred to notes which she agreed that she had initialled during the conversation which she had with Mr Thomas in Brisbane. She claimed, however, that she had not been able to read through the notes although she had initialled each page of them. She claimed that he had told her not to bother reading them as his secretary would send her a copy. She said she had never received a copy. Mr Peter Thomas At the section 12 hearing Mr Thomas said that he had investigated the fire. He agreed that he had interviewed Ms Nagy but denied that he had offered, or was in a position to offer, anyone money for evidence as to the fire. He said that he had asked Ms Nagy questions about her sexual life because he claimed that was what she wanted to talk about. Mr Thomas also said that he had spoken to Ms Hart but denied he had told her that he had suspected that Mr Nagy had an income protection policy. He denied any discussion with her about that. He claimed to have obtained from her a "signed statement" and said he could not recall saying that he would send her a transcript of the recorded interview. He denied having said words or words to the effect that she might be paid $10,000 if she was prepared to say that Mr Nagy had admitted "in a moment of passion" having started the fire." The conclusion of Davidson ADCJ with respect to Ms Nagy and Ms Hart 107 Davidson ADCJ concluded that both Ms Nagy and Ms Hart are credible witnesses whose evidence is capable of being accepted. His Honour considered whether their evidence is relevant to the determination of any factual issue arising in the Section 12 hearing. It was submitted that the evidence goes beyond credit and tends to establish a propensity in Det Sgt Thomas to act in a particular way, namely to improperly influence potential witnesses into giving information and obtaining evidence regardless of its truth. The submission was based on the terms of s97 of the Evidence Act 1995. 108 His Honour expressed his conclusions in the following manner: "As to the giving of reasonable notice as provided in that section, this question does not arise and in any event I would dispense with notice pursuant to s100 of the Evidence Act 1995. As to whether it is of "significant probative value" it should be considered in light of evidence relating to witnesses such as Ms Marie Whalen, Mr Shane Golds, Mr James Morris, Dr Richardson, Mr Barry O'Brien and Mr Farrar. It may also be relevant to the question of the alleged finding of the pistol in the en suite bathroom of Ms Catt on 24 August 1989 in light of the evidence of Mr Caesar, as indicating a propensity in Mr Thomas to act dishonestly in the gathering of evidence. In no instance in the trial of Roseanne Catt, however, was any allegation made of Det Sgt Thomas having held out a financial inducement to a witness to give false evidence. Nevertheless, there were substantial issues before the jury in the trial as to whether Det Sgt Thomas' methods of investigation may have tended to induce the giving of false or at least questionable evidence. In no instance in the trial of Roseanne Catt, however, was any allegation made of Det Sgt Thomas having held out a financial inducement to a witness to give false evidence. Nevertheless, there were substantial issues before the jury in the trial as to whether Det Sgt Thomas' methods of investigation may have tended to induce the giving of false or at least questionable evidence. Notwithstanding the difference in methods involved in the allegations contained in the evidence of Ms Nagy and Ms Hart as compared with the methods suggested on behalf of Ms Catt at her trial, the evidence of Ms Nagy and Ms Hart does have "significant probative value", as does that relating to the Bracamonte/Van Der Merwe matter. In addition, adopting the analogy of evidence of conduct of police officers at the New South Wales Police Royal Commission and applying the more stringent test propounded by Meagher JA in R v Vastag NSWCCA unreported 12 May 1997, the evidence, like that as to the Bracamonte/Van der Merwe matter, is relevant and cogent as going to whether Det Sgt Thomas may have used improper and dishonest methods of gathering evidence in the investigation of charges laid against Ms Catt." 109 I am satisfied that the conclusion expressed by Davidson ADCJ should be accepted. The defence of the appellant at her trial raised significant issues as to the evidence tendered against her and the manner in which Det Sgt Thomas assembled the prosecution case making this further evidence significant when considering whether the jury's verdict should now be set aside. Part 6 - The evidence of the Catt children 110 There are many difficult issues in this appeal and the evidence of the Catt children raises particular problems. The four children of Barry Catt gave evidence at the appellant's trial. That evidence was directly relevant to counts 1, 2 and 4. The conclusion of the jury to convict the appellant on these counts leads to the inevitable consequence that the children's evidence was rejected by the jury as being untruthful. 111 The children were called by the Crown at the hearing before Davidson ADCJ and gave evidence in relation to the rock incident, the cricket bat incident and other matters which was contrary to the evidence they had given at the trial. Furthermore, they now say that the sexual assault allegations which they had previously made against their father, Barry Catt, were false and explained that they had been persuaded to make them by the appellant. 112 The children also gave evidence before Davidson ADCJ that they had, at the instigation of the appellant, and with her active participation contaminated the liquids and other foodstuffs kept by Mr Catt with overdoses of his prescribed medication as alleged in count 5 of the indictment. 113 The Crown relies on this fresh evidence as strengthening the Crown case in relation to most counts. With respect to the evidence of the Catt children, Davidson ADCJ records the following submissions and refers to the following matters: "The Catt children have, according to their current versions, told lies in great detail of a kind designed to secure the conviction of their own father of major sexual offences at committal proceedings and at his trial. The jury, having declined to act on their version at Barry Catt's trial, three of them subsequently gave evidence at Roseanne Catt's trial, and, on the assumption which must be made, that the jury accepted her Honour's directions, the jury found beyond reasonable doubt that those three were lying in Roseanne Catt's trial. In addition, on the assumption which I have made that it is likely that the remarks of Wood J (made at the trial of Barry Catt on the sexual assault charges) were brought to their attention, all four were under continuing threat of investigation and perhaps prosecution for perjury if they maintained their previous versions at Roseanne Catt's trial. Three of them nevertheless did so. Having regard to the diametrically inconsistent versions given by each of them on oath in various proceedings, one approach might be to simply set aside the whole of their evidence at the section 12 hearing as lacking any credibility at all as to any contested issue. I have decided not to adopt this approach. Each of these witnesses claims as a child to have been heavily under the influence of Ms Catt when making the sexual assault allegations, making other out-of-court statements and in giving evidence supportive of Ms Catt's case as to eg. the "rock" incident and the "cricket bat/eucalyptus oil" incident, etc. Each of them also gave evidence of "coaching" by Ms Catt in Dapto aided by a former det sgt of the New South Wales Police, Gordon Henderson, whilst Ms Catt was on bail awaiting her trial. These matters must, of course, be given due consideration. The fact remains, however, that they have been found not to be witnesses of truth. The general process of conversion Following the conviction of Ms Catt and her incarceration, the children went to live with one of Ms Catt's sisters, Ms Dawn Lawson (not called at the trial nor in the section 12 hearing). According to the children's evidence, they only started to disclose to Ms Lawson what each of them now claims to be the true position after Ms Catt was sentenced and they were no longer under her influence. The Crown relies upon the fact that it was almost immediately after they got out of the sphere of influence of Ms Catt that they commenced the drastic revision of their accounts of relevant matters. Thereafter, for the purposes of the 1993 Appeal, Christopher and Sharon Catt swore affidavits which continued the process of revision leading to their yet more detailed evidence at the section 12 hearing In October 2001, Christopher and Tony Catt made oral statements on a 60 Minutes television programme generally affirming their revised version. Shortly prior to each of the four children giving evidence at the section 12 hearing they were interviewed by police officers assisting the Crown in the presentation of its case for the purposes of the hearing, and gave versions generally consistent with their evidence. This was done in interrogatory form and there is no hint, as I read the transcripts, of any undue or improper pressure or suggestion by those police Finally, in the section 12 hearing, each of them gave a comprehensive reversal of evidence given on oath on previous occasions as to alleged sexual assaults by Mr Catt and others, and provided other substantial support for the Crown's case in the way of direct evidence on which the Crown relies as to some of the substantive counts in the indictment." 114 Davidson ADCJ examined the children's evidence in detail. It is apparent that his Honour holds a suspicion of collusion and coaching by others in relation to the evidence which they now give and was troubled by the apparent "complete and comprehensive" nature of their change of story. His Honour said: "Internal inconsistencies and possibility of collusion Some suspicion of collusion, and perhaps of coaching by others, as for example Mr Newell or Mr Catt, as to their current versions is engendered by the complete and comprehensive nature of the "conversion" of these witnesses. There are also parts of their evidence which give some grounds for concern. Christopher Catt is recorded as having informed the presenters of the 60 Minutes television programme that in a drawer in the en suite of the main bedroom occupied by Ms Catt at 1 Cornwall Street he had previously seen the handle of a "pistol". This tends to support the Crown's case, if true, as to Count 9. In his pre-evidence interview, however, he told the police that what he thought he had seen was "just a cap gun." Tony Catt and Christopher Catt alleged at the trial of Barry Catt that they had been sexually assaulted by Mr Catt to the point of penile/anal penetration. They now assert no such sexual assault. Indeed, Tony Catt now alleges that he had only been sexually abused by Ms Catt . Sharon Catt (as with Christopher Catt) indicated during the section 12 hearing a close and continuing contact with Mr Newell as a family friend who had taken a sympathetic interest in Mr Catt's well-being, and as a witness. Sharon Catt said that Mr Newell had been in touch with her at about the time of the preparation of the 60 Minutes television programme, circa October 1991. In addition, whilst giving evidence at the section 12 hearing, she said that she had been in touch with Mr Newell about an aspect of one of her statements as to which she said she was in some confusion. Mr Newell it seems had a set of her statements. This and other activities of Mr Newell have generated allegations of collusion. Julie Catt in the trial of Barry Catt had said that she could remember when she was about one year old and still in nappies, that Mr Catt had vaginally penetrated her with his penis. I find it difficult to accept that an allegation in those terms was suggested to her by any adult. She resiled at the section 12 hearing from any allegation of sexual interference with her by her father. " The evidence of Drs Cooper and Rack 115 Of significance in this appeal is the receipt by Davidson ADCJ of medical evidence which in my view was properly rejected at the trial but which would now be admissible. The evidence tends to support a conclusion that there had been sexual interference with two of the children although the person who may have carried out the relevant acts, if they occurred, cannot be identified. 116 There was in evidence in the section 12 hearing, a transcript of the evidence at trial on the voir dire of Drs Cooper and Rack who, at the request of the Department of Family and Community Services, examined the four children after the making of the sexual assault allegations. Senior counsel for the appellant had sought to introduce this evidence before the jury but her Honour ruled it inadmissible although he was permitted, in light of the issue as to the appellant's state of mind, to adduce evidence from her as to what the doctors had told her. 117 The Crown, having called all four Catt children at the section 12 hearing to affirmatively assert the falsity of previous allegations made, put in issue the truth of the sexual allegations. Accordingly, Davidson ADCJ found that the evidence of the doctors now becomes directly relevant. That evidence and his Honour's findings in relation to it were summarised in the following terms. "Drs Cooper and Rack The evidence of Drs Cooper and Rack is supportive of the conclusion that at least Sharon and Julie Catt, at some time, had been sexually interfered with by someone to the point of penetration. The evidence is not, of course, corroborative of any relevant act having been done by Mr Catt but it is relevant, and in my view important, when considering the credibility of these two witnesses. The Crown's case at the trial of Roseanne Catt, however, was not limited to alleging total fabrication by Ms Catt of allegations of sexual assault and inducing the children to give that in evidence. Presumably as a "fall back" position, the Crown also asserted that she had promoted and exaggerated allegations which may have had a grain of truth but so as falsely to include serious sexual acts by Mr Catt. In either case, alleged the Crown, her motive was to induce revulsion among any of his friends and acquaintances who might otherwise have been expected to support him. Dr Williams Her Honour, at the Roseanne Catt trial, also rejected evidence from Dr Williams, psychiatrist, of her expert opinion as to whether the Catt children had been coached in the making of sexual assault allegations, essentially on the basis that specialist psychiatrists are in no better position than lay persons to make such an assessment and that there is no recognised body of expertise to base that opinion. On this issue the Crown also called Dr Walker on the voir dire. At the section 12 hearing, Dr Williams said that Christopher, Sharon and Julie Catt had been brought to see her by someone from FACS. She said that she understood Tony was then in Queensland. She said she maintained contact with the other three children until September 1991, and several times after the conviction of Ms Catt. Dr Williams said that at no time in speaking to the children did they alter the version that they had given of alleged sexual abuse. According to Dr Williams, Christopher Catt who at the section 12 hearing had alleged that he was sexually abused by Mr Bridge, Ms Catt's son, told her that he would like to grow up like Mr Bridge because he admired him very much and regarded him as a brother. Dr Williams gave evidence of what is described as "the accommodation syndrome" in the specialist literature. She said it occurs when children who have been abused sexually reverse their statements when interviewed by another person in order to accommodate the wishes of the interviewer. The doctor did not say whether in her opinion the recantation of versions given by the three Catt children she had counselled were explicable by the "accommodation syndrome". The only assistance I get from Dr Williams' evidence is that, following the incarceration of Ms Catt, none of the three children resiled from previous versions." The conclusion of Davidson ADCJ in relation to the evidence of the children. 118 The conclusions of Davidson ADCJ with respect to the evidence of the children is expressed in the following terms: "Conclusions as to weight to be given to evidence at Section 12 hearing of the Catt children. A jury rejected the evidence of all four of the Catt children at the trial of Barry Catt to the effect that they were sexually assaulted by him. Evidence they now give to the effect that they were not, is accepted on that issue. This is because it is clear that the jury rejected their evidence on the basis that they may have been subjected to pressure by Ms Catt. A jury at the trial of Roseanne Catt found beyond reasonable doubt that three of the Catt children, Christopher, Sharon and Julie, were not witnesses of truth as to the "rock" incident (Counts 1 and 2) and the "cricket bat/eucalyptus oil" incident (Count 4). Evidence now given by them to the opposite effect and consistent with the jury's verdicts as to these counts, although from an unreliable source, may nevertheless provide some support for the Crown's case on these counts. Where no previous version was given by any of the Catt children and reversed at the section 12 hearing so as to be now consistent with a verdict of the jury in the trial of Ms Roseanne Catt, evidence now given at the section 12 hearing is not accepted by me because it comes from an unreliable source (c/f Davies and Cody v The King (1937) 57 CLR 170, 183-5). This is so because one jury has already rejected the evidence of all four as not coming from witnesses of truth and another has reached the same conclusion as to three of them beyond reasonable doubt. Therefore the evidence of the Catt children at the section 12 hearing as to Counts 5 and 9 is not accepted by me." The Crown's submissions with respect to the children's evidence and some conclusions 119 The Crown takes issue with the approach of Davidson ADCJ to the children's evidence. It is submitted that the evidence given at the Section 12 hearing should be accepted as truthful, the explanation for the previous lack of truthful evidence being the fact that the appellant, being in a position to do so, had imposed pressure upon the children. As to the allegation of sexual assault in respect of Barry Catt, the Crown emphasises that Davidson ADCJ accepted the evidence which the children had given on that issue in the Section 12 hearing. 120 Davidson ADCJ rejected the evidence of the children on counts 5 and 9 (which evidence had never been considered by a jury) holding that, as their previous evidence on other matters had been rejected by a jury, their evidence should be treated as coming from an unreliable source. 121 Although Davidson ADCJ accepts that the evidence which the children now give, consistent with previous jury verdicts, may add some weight to the Crown case, in my view, it would be minimal. Although the evidence could not be entirely rejected there is evidence, particularly from the doctors, which would require careful evaluation before determining whether the children's evidence on any matter was credible (see Dunn and Cody v The King (1937) 57 CLR 170). Notwithstanding the fact that a jury has previously rejected the children's evidence, which they now say was false evidence, in my opinion, their evidence must be understood as coming from an unreliable source. Davidson ADCJ is careful to emphasise the possibility that the current version of events offered by the children may be the result of pressure and coaching. Given their admitted susceptibility to pressure in the past, this is a significant matter and militates against giving any significant weight to the evidence which they now give. Part 7 - The evidence of Mrs Whalen - a significant witness with respect to the appellant's credit 122 At the trial of Barry Catt, Ms Whalen gave evidence under the pseudonym "Mrs A". At that time she was serving a sentence for the manslaughter of her husband. Although her evidence was important in relation to some collateral issues she did not give evidence about any matter central to any of the charges. Her evidence was primarily concerned with the veracity of allegations against Barry Catt of sexual abuse of his children and the preparation and content of a statement which suggests that the allegations may be true. The allegation made by the Crown was that the appellant had sought to fabricate evidence in support of the sexual assault allegations. The issue was obviously of critical significance to the appellant's credit. 123 There was tendered in evidence a statement above the signature of Marie Dawn Whalen which has also been signed by Mr Farrer JP. The statement is dated 29 July 1989 and suggests that its author had witnessed non-sexual assaults by Barry Catt of his children as well as behaviour with a sexual connotation. Ms Whalen had been in a position to witness behaviour within the Catt household at times before the appellant formed a relationship with Barry Catt. Davidson ADCJ concluded that if the contents of the statement are true they would provide support for the truth of the allegation of sexual abuse by Barry Catt of his children. 124 Mrs Whalen gave evidence at the trial in which she denied signing the document. 125 In order to understand the significance of this issue it is necessary to understand the various findings made by Davidson ADCJ in relation to it. They are expressed in the following terms: "Ms Whalen had known Mr Catt since about 1976. She had cared for the Catt children after Ms Lorraine Catt, their natural mother, had left Mr Catt. She claimed at the trial that before Mr Catt had been charged with sexually assaulting his children, Ms Catt had told her of the sexual assault allegations involving not only Mr Catt but also other named persons. Ms Whalen said that none of the children had ever made such allegations to her whilst she was looking after them. She claimed that she had told Ms Catt that she did not believe the allegations. Ms Whalen spoke of a conversation along these lines at which a number of other persons were present. She said that she had told Ms Catt that she required proof of the allegations since she had not suspected anything of the kind alleged whilst she was looking after the children. She claimed that Ms Catt had said words to the effect "Marie, it wouldn't hurt to stretch the truth a little to see the bastard go". Ms Whalen claimed that she had seen a statement, evidently written by Julie Catt, in which one of Ms Whalen's daughters had been involved, apparently as a victim, in sexual activities. She said that Ms Catt had told her that if she would "do the right thing that will be struck from Julie's statement". Ms Whalen said following this, she had gone to the Taree Local Court with Ms Catt's sister, Ms Faye Klarenbeek, to take out a summons against Mr Catt with a view to having an apprehended violence order made against him on the basis that he was harassing her. Among the documents which Det Paget claims to have found in a brief case at 1 Cornwall Street, where Ms Catt and the Catt children lived as at the date of her arrest, 24 August 1989, was T.Ex 21. It is a statement above the signature "Marie Dawn Whalen". It purports to have been signed before Mr Farrar JP on 29 July 1989. It indicates that its author had witnessed non-sexual assaults by Mr Catt of his children as well as behaviour with a sexual connotation. If the contents of T.Ex 21 are true they would provide support for the truth of the allegations of sexual abuse by Mr Catt of his children. Ms Whalen denied, however, that she had signed the document. Ms Catt said that T.Ex 21 came into existence when Ms Whalen made a visit to 1 Cornwall Street and said she had been to see Det Sgt Burgess who was investigating the sexual allegations, and that she wanted to make a statement. Ms Catt said that Ms Whalen at her own request then dictated a statement to Ms Catt who wrote it out. She said that Ms Whalen had read it over and had said that she would take it home to show to her husband. According to Ms Catt, Ms Whalen returned with the document the following day whilst Mr Jago, a friend of Ms Catt's, was there. Ms Whalen asked Mr Jago to type the document so that she could send it to Det Sgt Burgess who confirmed that he had received T.Ex 21 among other documents which he had sent to the Office of the Director of Public Prosecutions at Newcastle (H.Ex 2.1; T/T p2363-4). After Mr Jago typed the document Ms Whalen read it over and requested that something be added to it. Ms Catt said that she had done so in handwritten block capitals as appears on the document. Ms Catt said that it was at her suggestion that the document should be signed by Ms Whalen and attested before a JP. Accordingly, Ms Catt said she rang her accountant, Mr Crossman (not called either at the trial or section 12 hearing), who had nominated Mr Farrar as a JP for that purpose. At Ms Whalen's request, Ms Catt said she had driven her to Mr Farrar's office and there, in the presence of herself and Sharon Catt, Ms Whalen had signed T.Ex 21 and her signature was witnessed by Mr Farrar. Although Mr Farrar was "very sure" that only two adult females were present at the signing of T.Ex 21, Sharon Catt at the trial said that she, Ms Catt and Ms Whalen had gone to see Mr Farrar and Mr Farrar had witnessed Ms Whalen's signature. In her affidavit for the 1993 Appeal, Sharon Catt deposed that the evidence she gave at the trial was "completely untrue". Mr Jago (since deceased) gave evidence at the trial. He went to 1 Cornwall Street at the request of Ms Catt. He had there typed the document in the presence of Ms Catt and Ms Whalen. He said that Ms Whalen had taken it away to have it witnessed before a JP. He was not present when the document was signed by Mr Farrar. Although there are some apparent discrepancies between his account and that of Ms Catt, if accepted, Mr Jago's evidence at least tends to confirm Ms Whalen as having been present when T.Ex 21 was typed and of her leaving with it to have it signed before a JP. The Crown called, as to other parts of its case, a handwriting expert, Insp Chivers. He gave no evidence, however, as to the authenticity of the signature "Marie Dawn Whalen" on T.Ex 21 although the signature was clearly in dispute. Why this was not done does not appear. Mr Anderson, also a handwriting expert, was called in Ms Catt's case. He found nothing to suggest that the person who signed T.Ex 21 and the specimen signatures of Ms Whalen was not the same person with, however, the cautionary proviso to this opinion that T.Ex 21 is a photocopy. Ms Whalen said that she first saw T.Ex 21 when, on 23 August 1989, it was shown to her by Det Sgt Thomas and Det Paget at the house, 27 Milligan Street, Taree, made available to these police by Mr Adrian Newell for the purposes of conducting their investigations into Ms Catt. Ms Whalen said that subsequently she had been taken by other police to see Mr Farrar JP. She said that she had never previously met him. Mr Farrar gave evidence at the trial but not at the section 12 hearing. He confirmed attesting the signature to T.Ex 21 on 27 July 1989. Mr Farrar said that the document had been signed by a lady who had accompanied Ms Catt to his office. He said that Ms Whalen was not that lady. He gave substantially the same version at Barry Catt's trial in 1990 Mr Farrar said that Ms Whalen had been brought to his office on 20 September 1989 by police other than Det Sgt Thomas and Det Paget. He said on the previous Sunday, Det Sgt Thomas had telephoned him at home and had told him that "he had something on me" and would be up to see him the next day. Mr Farrar, however, said that he did not think that Det Sgt Thomas was serious in making this remark. There is evidence of similar conduct of Det Sgt Thomas. At the trial, Ms Catt (H.Ex 2.10; T/T p2644 et seq esp at p2801) said that Ms Whalen approached her and arranged a meeting with her at the business premises of Ms Fleming, a Taree manicurist. Ms Whalen said, according to Ms Catt, that she was concerned that her own daughters had been associated with the Catt girls and she felt that in good conscience she should make a statement as to sexual matters involving the children and Mr Catt. Ms Catt claimed that she had told Ms Whalen to contact Det Sgt Burgess who was conducting investigations into the sexual assault allegations. Ms Fleming confirmed such a meeting as having taken place in 1988. Ms Whalen agreed that she had met Ms Catt at Ms Fleming's salon on one occasion and that she had a conversation with Ms Catt about the Catt children but denied that she had originated any conversation about the children being sexually assaulted (H.Ex 2.1; T/T p2435-6). After a voir dire examination, Ms Fleming was permitted before the jury to give evidence to the effect that it had been Ms Whalen who had asked to arrange the meeting with Ms Catt. She also said that there was a conversation about the sexual assault of children and that conversation had been initiated by Ms Whalen. Ms Fleming said that she overheard "quite a bit" of that conversation. Ms Sharyn Cox gave evidence at the Roseanne Catt trial. On 19 May 2002 she made an affidavit in support of the petition. Paragraph 15, was admitted in evidence over objection by the Crown that the evidence was not fresh. Presumably the Crown was referring to the fact that Ms Cox was called as a witness at the trial and no evidence along the lines of paragraph 15 was led from her. There is no evidence, however, that the legal advisers of Ms Catt were aware of what Ms Cox deposed to in paragraph 15. Pursuant to the established latitude which may be applied to criminal matters I allowed Mr Martin to lead evidence of its contents. I treat it as fresh evidence for present purposes. Ms Cox deposed and confirmed in her evidence before me that on 18 August 1989 a woman identifying herself as Ms Whalen had telephoned her and said words to the effect, "I was approached today in the street in Taree by Mr Catt who threatened me and said if I did not change my story he would kill me and my children and my husband what should I do?". Ms Cox said that she told her she should go to the police. The woman said, "The police will not listen to me". Ms Cox suggested she should see a solicitor. The woman said, "I have previously been a babysitter for the Catt children, and I feel guilty in respect to the sexual assaults because I saw signs and the children complained to me which I did not believe". The affidavit continues to the effect that it was only some two to three days later that Ms Cox heard on the news that Ms Whalen had been arrested for the murder of her husband. Mr Whalen did not die until 30 October 1989. Ms Cox, in verifying the contents of that part of her affidavit at the section 12 hearing, qualified it by saying that she thought her dates were wrong and it was not three days but "some time", although not a long time, after the conversation that she had heard on the news of the arrest of Ms Whalen for the killing of Mr Whalen (H/T p1799-1800). In cross-examination at the section 12 hearing, Ms Cox said that she had never before spoken to the person who had spoken to her on the phone on 18 August 1989 identifying herself as Ms Whalen. Nor had she spoken to Ms Whalen subsequently. She agreed with the suggestion of counsel that it could have been "any female at all" (H/T p1803-4). Whilst this of course puts in issue whether it was indeed Ms Whalen who made the telephone call, the conversation contains details which permit the inference to be drawn that whoever did make it knew a good deal about Ms Whalen. Ms Cox had spoken both face to face and on the telephone to Ms Catt before and since 18 August 1989 and it may be assumed that on 18 August 1989 she did not recognise the voice as that of Ms Catt. There is no suggestion otherwise on the evidence that anyone else may have made the call and impersonated Ms Whalen. Although the conversation of 18 August 1989, deposed to by Ms Cox, was not in terms put to Ms Whalen at the trial, Ms Whalen gave evidence in cross-examination that in early 1989 Ms Catt had rung her solicitor from her own office in Ms Whalen's presence. She said that as a result of that call she had been advised to see a counsellor. She said she had done so but it was not Ms Cox, but a man to whom she had spoken. When she was asked whether she had spoken to that man about a threat made to her by Mr Catt, Ms Whalen said that she had spoken to the man about the "whole incident" and "told him that I had enough….of being harassed by everybody" (H.Ex 2.1; T/T p2446). At the section 12 hearing, Ms Whalen confirmed that she had sought an AVO against Mr Catt but claimed that she was "threatened to do so by Mrs Catt". Her attention was drawn to evidence she had given at the trial to the effect that Mr Catt had spoken to her about "knowing some hit people". She said she could vaguely remember giving that evidence. Ms Whalen said she could not remember the name Sharyn Cox and denied that Mr Catt had ever threatened her. She also denied the substance of the telephone call which Ms Cox said had been made on 18 August 1989 (H/T p2012-3, 2028). Ms Whalen said that the children had never given her any indication that they had been sexually assaulted but that she had felt guilty because she thought that if that had happened, she had no knowledge of it and she had had the children in her care for over four years (H/T p2072-3). Ms Catt, at her trial, gave evidence of Ms Whalen coming to see her at the office at 2-8 Cornwall Street "possibly" in June or July 1989. Ms Catt claimed that Ms Whalen told her that Mr Catt had approached her and threatened her that "if she did give evidence against him she would be dealt with". Ms Catt said that Ms Whalen did not have a phone at her home and when she had come to her office she had rang her solicitor and was advised that "she should ring Sharyn Cox…and she did". Mr Jones was a solicitor acting for Ms Catt in a number of matters. On 15 September 1989 he had gone to Mr George Baird's house at Old Bar to interview Ms Whalen on behalf of Ms Catt. He said he had spoken to Ms Whalen and had there met her husband, Mr Tom Whalen. Mr Jones said he had made no contemporaneous notes of the conversation he had with Ms Whalen but had typed out what he recalled of it at his office apparently on that same day. He said that she had told him that when she had first heard of the alleged sexual assaults she could not believe it of Mr Catt. Later she said that she and Ms Catt had "compared notes". Mr Jones went on to recount that part of the conversation which he said dealt with Ms Whalen's visit to the house at Milligan Street, Taree with the police officers Det Sgt Thomas and Det Paget on 23 August 1989. She told Mr Jones that she had gone to the house feeling frightened, under some degree of pressure from Det Sgt Thomas. Mr Jones said Ms Whalen claimed that Det Sgt Thomas had declined to allow her to make arrangements for the care of her children whilst she was away from her own house. She claimed that Det Sgt Thomas had told her that they had information on which they might charge her with some "serious offences" including social security fraud and that she would be charged if she did not go with the police (as to other evidence of alleged threats to potential witnesses by Det Sgt Thomas see paras. 609-688). Mr Jones said Ms Whalen claimed that Det Sgt Thomas had declined to allow her to make arrangements for the care of her children whilst she was away from her own house. She claimed that Det Sgt Thomas had told her that they had information on which they might charge her with some "serious offences" including social security fraud and that she would be charged if she did not go with the police (as to other evidence of alleged threats to potential witnesses by Det Sgt Thomas see paras. 609-688). Ms Whalen said, according to Mr Jones, that when she went to the house at Milligan Street she was terrified and had been kept there for approximately five hours. Mr Jones claimed that Ms Whalen said that the police officers had said to her, in effect, that they wanted her to change her story and confirm that Ms Catt was a liar. She said that she kept denying matters put to her by Det Sgt Thomas but he kept shouting at her that she was "a fucking liar" and that she was "in big trouble unless you say what we want". Ms Whalen said that she had told the police about taking out a summons against Mr Catt seeking the protection of an AVO and that the police had "warned" her not to turn up on that summons. Mr Jones said that Ms Whalen had told him that the police had said that Ms Catt was to be arrested the next day and that the same thing would happen to Ms Whalen unless "you tell us what we want". Mr Jones said Ms Whalen told him that she had believed that she was going to be killed or charged with a serious offence and was so terrified that she was prepared to tell the police anything they wanted to hear. She went on to say, however, that she was not prepared to say anything further to Mr Jones until her legal adviser had told her that she was protected. She spoke about "these corrupt police". Mr Jones claimed that Ms Whalen had told him that whilst she was at the house in Milligan Street, the police had referred to Ms Catt as a bitch and spoke of "setting her up". He said that Ms Whalen said that a revolver had been produced and she had believed that she might have been shot. She told him that while she spoke, the police were typing and themselves dictating responses to questions which purported to have come from her. She said she had signed a statement although she knew that substantial parts of it were untrue and the words used were not hers but those of the police. Ms Warne, a FACS Officer, gave evidence at the trial (H.Ex 2.10; T/T p3367 et seq) and at the section 12 hearing (H/T p2089 et seq). At the trial she said she had spoken to Ms Whalen after the arrest of Ms Catt on 24 August 1989 whilst the Catt children were in the care of FACS. She said on 19 September 1991, in the presence of another FACS officer, Mr Baggs, Ms Whalen had come into the FACS office making enquiries about the Catt children. Ms Warne claims that Ms Whalen told her that she was a good friend of Ms Catt's and that she, Ms Whalen, would care for the children. Ms Warne said that Ms Whalen said that Det Sgt Thomas had "stormed" into her house and taken her to the vacant house at Milligan Street where she had been for a number of hours. She said that another detective, obviously referring to Det Paget, had "sat spinning a gun" at her. Ms Warne said that Ms Whalen had mentioned something about them wanting her to make a statement or change a statement. Ms Warne said that Ms Whalen had said that she had eventually signed whatever they wanted her to sign. She said she was afraid of Det Sgt Thomas. Ms Warne, at the section 12 hearing, identified a note (Pt H.Ex MMMMM) in her handwriting tending to confirm that Ms Whalen made a second visit to the FACS office and that she had done so with her husband, Tom. There is a date "4/10" on the note and there is also, as part of H.Ex MMMMM, a letter apparently from Ms Whalen addressed to the Catt children. Ms Warne said that she saw Ms Whalen and her husband at the FACS office on more than one occasion Ms Warne said that Ms Whalen had asked her to pass on the letter (Pt H.Ex MMMMM) to the Catt children. It is dated 2 October 1989 and supports the inference that all four of the Catt children were still then in foster care. Ms Warne said that she could not remember Ms Whalen saying that she had signed a statement to the police under duress (H/T p2099). Mr Baggs, FACS Officer, gave evidence at the trial (H.Ex 2.8; T/T p3396 et seq ) and at the section 12 hearing (H/T 2102-42) of visits by Ms Whalen on both 19 September 1991 and 4 October 1991. She was introduced to him by Ms Warne. He said on the first occasion Ms Whalen was alone. On the second, her husband was with her. He said that although Ms Whalen's appearance had differed on each occasion, it was the same person (see also evidence of Ms Jeannie Strachan: paras. 208-209). He confirmed the substance of the evidence of Ms Warne as to what had been said. At the section 12 hearing Mr Baggs confirmed the accuracy of a report which he had made, H.Ex UUUU, on the basis of FACS records for the Ombudsman and admitted without objection as evidence of the facts stated in it. Paragraph 73 contains an extensive note of the conversation of 19 September 1989 with Ms Whalen. She alleged having been taken from her home by Det Sgt Thomas and Det Paget, to the house at Milligan Street and being held for five hours and interrogated. She said that Det Paget had spun the chamber of his revolver while she was being questioned. She maintained that she had signed a statement under duress. Mr Baird was a friend of Ms Catt's. When bailed he was her surety. He said at her trial that on the morning after her arrest on 24 August 1989, he had gone to Ms Whalen's house and had seen she was distressed. She told him that she had been taken by the police to a house where she was questioned. She said that the police had a gun beside a typewriter. She said that one of them had taken the gun out of a holster and was looking at it whilst he was talking to her. Mr Baird said that he had told her that she should see a solicitor and make a statement but she said, "The police told me not to contact anyone, they had a car outside the place all night" (H.Ex 2.8; T/T p3724-5). Ms Whalen at the section 12 hearing confirmed that she had gone to the house at Milligan Street but denied that Det Paget had spun the chamber of his revolver. She also denied both making a statement under duress and having told the officers of FACS that she had been threatened or otherwise badly treated by two police officers (H/T p2013, 2018). Ms Whalen denied that she had told Mr Michael Jones that the police had taken her to the house at Milligan Street and had threatened her. She said she had made no complaint to Mr Jones or Mr Baggs (H/T p2014). T.Ex VVV is a handwritten note made by Ms Whalen and left at the door of 27 Milligan Street, Taree. It states in part, "I do want to help you people…." and requests a meeting "at 3" (see evidence of Mr Thomas, H.Ex 2.7; T/T p2115-6). This was relied on by the Crown as evidence that "she really was being co-operative with the police and was concerned to assist them T.Ex VVV is a handwritten note made by Ms Whalen and left at the door of 27 Milligan Street, Taree. It states in part, "I do want to help you people…." and requests a meeting "at 3" (see evidence of Mr Thomas, H.Ex 2.7; T/T p2115-6). This was relied on by the Crown as evidence that "she really was being co-operative with the police and was concerned to assist them" (S/U p125-6 where the jury was also directed that what Ms Whalen had told Mr Jones "does not constitute positive evidence that the events did take place as she described" (c/f now position under s106 Evidence Act 1995)). After Ms Whalen was released from gaol she had spoken to Ms Anne Strachan (H/T p2152-5), the mother of Ms Jeannie Strachan who had been an inmate and "girlfriend" of Ms Whalen in gaol. Ms Anne Strachan said that Ms Whalen had told her that Mr Catt was "sexually abusing his children". Although Ms Whalen denied the substance of other alleged conversations between her and Ms Anne Strachan, this allegation was not put to Ms Whalen in the witness box. Ms Strachan was called in the case for Ms Catt at the section 12 hearing. She said (H/T p2335 et seq ) that Ms Whalen had blonde hair about collar length or a bit longer when they first met in prison. Ms Jeannie Strachan said between early to mid 1990 until late 1992 Ms Whalen had cut her hair "very short and spiky and dyed black". Ms Strachan said that Ms Whalen had had her hair black for three or four months and then blonde again (see photographs H.Ex UUUUU). This evidence was led to suggest that Ms Whalen may have changed her hair colour between the time that she had, according to the case for Ms Catt, gone to see Mr Farrar on 27 July 1989 and the time that she had visited his office with the police on 20 September 1989 (see also evidence of Mr Baggs at para. 197). Ms Strachan said that whilst in gaol, Ms Whalen had "blamed Roseanne for a lot of things". She said that Ms Whalen said she had "set Roseanne up". She claimed that Ms Whalen had spoken of getting Ms Catt into trouble and wanting to "bash her", "just to give this lady a very hard time" (H/T p2337). Ms Perez (H/T p1095 Ms Perez (H/T p1095 et seq ) said that between May 1989 and September 1989 she was an inmate at Mullawa prison where she had spoken to Ms Whalen. She said about two weeks after a date in December 1991, she had returned to gaol and shared a cell with Ms Whalen who told her that she had "very influential friends on the outside" who were willing to pay money to put Ms Catt in hospital. Ms Perez claimed that Ms Whalen had told her that Ms Catt had to be hurt "bad enough to keep her in hospital" and if she should happen to accidentally kill her "they'll put more in your account". Ms Perez said she was released from prison in September 1992. She had attended the trial of Mr Bridge in 1995 and had been in continuous contact with Ms Catt since her release. She said that although they had discussed "her Appeal" they had not discussed the evidence. She described Mr Bridge as "like a brother to me" and said she was very close to the family. Ms Perez denied that she had ever used the name "Roseanne Catt" as one of her aliases although she said she had used different names from time to time but did not do that now. Although the Crown appears to have been in possession of some documentary evidence tending to indicate that Ms Perez had used "Roseanne Catt" as one of her aliases, I rejected the tender of that document on the basis that it was on its face unreliable (see H/T p1914). SENTENCING PROCEEDINGS AND GAOL VISITS On 12 October 1990, in sentencing Ms Whalen for the manslaughter of her husband, Wood J (as he then was) imposed a term of five years with an additional term of three years. Although there is no suggestion in the Remarks on Sentence that there was to be any reduction for assistance to authorities, it is clear that his Honour had been made aware that Ms Whalen was to be a Crown witness in the prosecution of Ms Catt (see Remarks on Sentence, Pt H.Ex 37). There were a number of contacts in gaol between Ms Whalen and the investigating police, Mr Newell and Mr Catt before and after she was sentenced. On 31 July 1990 she was visited by Mr Newell before she had entered a plea of guilty to manslaughter. Mr Newell gave character evidence for Ms Whalen on sentence with, according to Ms Whalen, no sufficient basis of prior knowledge of her. Ms Whalen gave evidence that she had expected support from Det Sgt Thomas and Det Paget at her sentencing proceedings which, however, was not forthcoming. It is difficult to see what they might have been expected to say on her behalf other than to indicate to the sentencing judge what his Honour already knew, namely that she was an important Crown witness in the forthcoming trial of Ms Catt. On 5 December 1990, Ms Whalen gave evidence at the trial of Mr Catt, in effect refuting T.Ex 21 and denying that it was her document. On 15 July 1991, she gave evidence at the Roseanne Catt trial to similar effect. On 13 September 1991, two days after the jury had returned with their verdicts in the Roseanne Catt trial, Ms Whalen was visited in gaol by Mr Newell again and by Mr Catt. Ms Whalen described this as a "victory" visit. Mr Catt also visited her on 6 October 1991. On a date which does not appear, there being no record of it in the Corrective Services official record of visits to Ms Whalen but which must have been after the date on which she was sentenced, she was visited by Det Sgt Thomas and Det Paget (see statement of Shirley May Heggarty, H.Ex 40). There is no suggestion as far as I am aware that either of them took any part in the investigation into the death of Mr Whalen. Ms Whalen said in evidence that on the gaol visit to her by Det Sgt Thomas and Det Paget, they had extended expressions of continuing good will and support. " 126 Davidson ADCJ expressed a number of conclusions with respect to the evidence of Ms Whalen. Relevant matters are as follows: "CONCLUSIONS AS TO MS MARIE WHALEN A review of the evidence relating to the alleged telephone conversation with Ms Cox on 18 August 1989 leads me to conclude that it was Ms Whalen who rang Ms Cox. I accept that a conversation ensued in terms of the evidence given by Ms Cox. I am of the view that this evidence qualifies as fresh evidence. The evidence of Ms Anne and Ms Jeannie Strachan and Ms Perez is clearly fresh and is to be considered in the context of evidence given at the trial which I regard as reliable, namely that of Ms Fleming, Mr Jones, the FACS officers Ms Warne and Mr Baggs, the contents of H.Ex UUUU, and Ms Cox. There is fresh evidence to support the conclusion which I draw that the evidence of Ms Whalen is so unreliable that she is not to be regarded as a witness whose evidence I accept on contested matters. If that fresh evidence had been before the jury in the trial of Roseanne Catt there is a reasonable possibility that the jury may have rejected Ms Whalen's evidence either in whole or substantial part. Acceptance of the evidence of Ms Whalen in whole or substantial part by the jury at the trial of Roseanne Catt is likely to have had seriously adverse repercussions to the case presented on behalf of Ms Catt on all contested issues at her trial. The evidence of the gaol visits to Ms Whalen by Det Sgt Thomas and Det Paget, and by Mr Newell and Mr Catt, is a circumstance which tends to support the inference that Ms Whalen should not be regarded as a witness of truth as to contested matters. Mr Newell putting himself forward as a witness qualified, when he was not, to give evidence as to the good character of Ms Whalen is a circumstance which tends to support an inference of the real possibility of collusive conduct to secure the conviction of Ms Catt irrespective of the real merits of available evidence (as to Mr Newell's evidence see Pt H.Ex 41, Q&A 50; H/T p2027-30). The evidence, not available to Ms Catt's legal advisers at the trial, to the effect that Ms Whalen bore considerable and continuing ill-will towards Ms Catt up to and including advocating serious physical injury to her or even her death, tends to support the conclusions to which I have come. Although Ms Perez, Ms Anne and Ms Jeannie Strachan were subjected to cross-examination as to their credit, I do not regard their evidence as incapable of acceptance. " 127 The Crown challenges the findings made by Davidson ADCJ in relation to Ms Whalen in virtually every respect. However, given the confined role of this Court the submissions must be rejected. His Honour had the considerable advantage in this case of observing the witnesses and I am not persuaded that his Honour's findings as to the credit of Ms Whalen and those who gave evidence relevant to the evidence she gave were other than appropriate. 128 I also agree with his Honour's conclusion that the acceptance of Ms Whalen by the jury is likely to have "had seriously adverse repercussions to the case presented on behalf of Ms Catt on all contested issues at her trial". Given that the allegation of sexual abuse by Mr Catt of his children was a central issue with respect to the appellant's credit it could hardly be otherwise. Part 8 - The evidence of Mr Caesar 129 Mr Peter Caesar gave evidence at the Section 12 hearing of particular relevance to count 9. However, it is also of general significance and the account and findings of Davidson ADCJ in relation to that evidence were as follows: "Mr Caesar was an insurance loss adjuster when he first met Mr Thomas who was then in the process of resigning from the New South Wales police force. He said that Mr Thomas had moved to Brisbane and commenced working with Mr Caesar for the same firm. He and Mr Thomas had an amicable employment and social relationship at first. During the course of it, Mr Caesar claimed that Mr Thomas had shown him files labelled "New South Wales Police" including one pertaining to Ms Catt (H/T p1565-8). In 1991, after Mr Thomas had returned from Sydney where he had given evidence in the Roseanne Catt trial (he commenced his evidence on 27 June 1991, and the jury returned their verdicts on 11 September 1991), Mr Caesar claimed that Mr Thomas had spoken to him about that case. Mr Thomas had described Ms Catt as the lowest form of a slut and said, "It's common knowledge that I planted the gun" (H/T p1568-9). This of course is more directly relevant to Count 9 rather than Count 5 and is dealt with also in that context later (para. 501). Mr Caesar said that in discussing the Roseanne Catt case with him, Mr Thomas had also described Mr Catt as "a mate". Mr Caesar gave evidence of a workplace dispute between an employee, Ms Cheers and Mr Thomas which had led to litigation. He claimed that he had overheard an argument between Ms Cheers and Mr Thomas during the course of which Mr Thomas said words to the effect that he would "do Leanne in as he did Ms Catt, she was still rotting in gaol in Sydney" (H/T p1578). In cross-examination on the basis of a statement (H.Ex 30) made on 26 July 2001 to a detective sergeant of police then attached to the NSW Crown Solicitor's office, Mr Caesar conceded that Mr Thomas had not used words to the effect, "I planted the gun on her" but had said words to the effect, "There are things you have to do. This sheila was bad, and it had to be done". Mr Caesar nevertheless insisted in evidence before me that Mr Thomas had "numerous times" said words to the effect that he had "planted" a gun on Ms Catt (H/T p1584). In an earlier part of the same statement, H.Ex 30, Mr Caesar is recorded as having said that Mr Thomas had said to him words to the effect that, "It's common knowledge that I planted the gun on the bitch". Notwithstanding any apparent inconsistency, I am satisfied that the statement of 26 July 2001 (H.Ex 30) contains the substance of what Mr Caesar alleged in evidence Mr Thomas had said. Mr Caesar nevertheless insisted in evidence before me that Mr Thomas had "numerous times" said words to the effect that he had "planted" a gun on Ms Catt (H/T p1584). In an earlier part of the same statement, H.Ex 30, Mr Caesar is recorded as having said that Mr Thomas had said to him words to the effect that, "It's common knowledge that I planted the gun on the bitch". Notwithstanding any apparent inconsistency, I am satisfied that the statement of 26 July 2001 (H.Ex 30) contains the substance of what Mr Caesar alleged in evidence Mr Thomas had said. Mr Caesar was further cross-examined on a document, H.Ex 7, being a written memorandum by Mr Caesar to Mr Thomas in which Mr Caesar appears clearly enough to be suggesting to Mr Thomas that they should take steps dishonestly to exclude a joint venturer with them in a business enterprise from his money (H/T p1586-7). Mr Caesar was also cross-examined on a file register kept by Mr Thomas. Mr Caesar said that after Mr Thomas had left he had found the register in a communal office, not Mr Thomas' personal office. Mr Caesar agreed that he had provided a Four Corners television programme, in which adverse criticism had been made of Mr Thomas, with material apparently from the file register (H/T p1588). Mr Caesar agreed in cross-examination that he had access to a diary containing details of mutual clients which he had supplied to Ms Catt after her release from prison. He agreed in effect that he would do anything to get back at Mr Thomas. He denied, however, making false allegations against Mr Thomas. Mr Caesar agreed that he had sent material to some of Mr Thomas' clients, samples of which are contained in H.Ex 10 being newspaper clippings of 20 and 21 October 2000 relating to the Four Corners television programme in which Mr Thomas is associated with dishonest and criminal allegations relating to claims of insured persons. He agreed that he had distributed this material "just to get back at" Mr Thomas (H/T p1590). Mr Caesar said that he had been prosecuted for fraud in Queensland at the instigation of Mr Thomas and was ultimately acquitted of these matters (see Pt H.Ex 8)." 130 In the submissions to this Court the Crown challenges his Honour's findings with respect to Mr Caesar and submitted: "Also, in his findings, in relation to this count, his Honour appears to have placed great support for his conclusion on the evidence by Mr Caesar in the section 12(2) hearing. As his Honour said: "The evidence of Mr Caesar as to Mr Thomas' alleged admission that he had 'planted a gun' on Ms Catt is fresh and, is capable of acceptance although from a witness whose credit is under attack. It is of substantial materiality.' It is submitted that Mr Caesar was a totally discredible witness. He had a strong motive to lie. He stated in evidence that he would do anything he could to get back at Mr Thomas because Mr Thomas reported him to police for fraud. And, he said, that he was a vindictive person. Mr Caesar also said in evidence that Mr Thomas, contrary to his Honour's finding, did not say he planted a gun on the appellant but had said words to the effect 'There are things you have to do. This shiela was bad, and it had to be done.' Mr Caesar also conceded in evidence that he had sent a written memorandum to Mr Thomas in which Mr Caesar suggested to Mr Thomas that they should take steps dishonestly to take rid off a fellow partner of the business of $10,000 (sic). Mr Caesar had provided a 'file register' which belonged to Mr Thomas to the ABC 4 Corners program. This file had been taken from Mr Thomas' office. Mr Caesar also supplied the appellant with a copy of Mr Thomas' telephone diary. Mr Caesar also admitted that he sent adverse material on Mr Thomas to some of Mr Thomas' client in an endeavour to destroy Mr Thomas. He said that he distributed this material 'just to get back at' Mr Thomas. In the section 12(2) hearing Mr Thomas denied that he said the words that Mr Caesar alleges he said. It is submitted that his Honour erred in his finding that Mr Caesar would ever be accepted as a witness of truth particularly in any evidence he gave against Mr Thomas because of his hatred and vindictiveness against him." 131 The submission that Mr Caesar did not give evidence in which Det Sgt Thomas said he had planted a gun on the appellant cannot be accepted. Although Mr Caesar may have said only that Det Sgt Thomas said he had "planted a gun" this could only be a reference to planting a gun on the appellant. In his statement made prior to the Section 12 hearing Mr Caesar related a conversation with Det Sgt Thomas in which the latter said: "Ceez, its common knowledge that I planted the gun on the bitch." 132 The Crown emphasises the fact that Mr Caesar had apparent motivation to hurt Thomas and may have been influenced by these matters in giving his evidence. However, although Davidson ADCJ acknowledged that Mr Caesar's credit was under attack his Honour found that his evidence was capable of acceptance by a jury. 133 This finding is critical to count 9 and it is necessary to consider the consequences for the other counts if this evidence had been available at the trial. Part 9 - Other material relevant to the defence case of collusion 134 Having reached conclusions with respect to the process of investigation and the evidence of Ms Whalen, Davidson ADCJ considered the effect of this evidence and other evidence on the defence case of collusion or conspiracy to wrongly convict the appellant. His Honour considered firstly the relationship between the appellant and Det Sgt Thomas and the detective's relationship with Mr Catt. "Background Det Sgt Thomas Det Sgt Thomas had been stationed at Taree when, in 1983-4, he had investigated a fire in a delicatessen in which Ms Catt, then known as Roseanne Annetts, with her partner Mr Douglas Annetts, had an interest. The matter was "no billed". There followed complaints made by Ms Catt against Det Sgt Thomas. There were some twenty-five to thirty of these complaints made by Ms Catt and another person, Mr Errol Taylor. At Roseanne Catt's trial, Mr Thomas, as now referred to, having resigned from the police force on 19 January 1991, asserted that he bore no animosity towards Ms Catt as a result of these complaints and that they had nothing to do with his resignation (H.Ex 2.6; T/T p1777-8). Mr Thomas nevertheless conceded that the making of the complaints did cause him concern. He said that since he had met Ms Catt in 1983, he had spent six years of his life "ducking the internal security police and justifying my existence". He denied, however, that he wanted to "pay back", or had "an axe to grind" in relation to Ms Catt (H.Ex 2.6; T/T p1780-3). It was with this background of animosity between them that he undertook charge of the investigation of the matters alleged against Ms Catt in 1989. He said he had done so because he had been requested by Det Sgt Duffy and also because he knew the Taree area (H.Ex 2.6; T/T p2058). The bias of Det Sgt Thomas against Ms Catt when he took charge of the investigation was made apparent to the jury at her trial. Her Honour told the jury that by the time the investigation commenced, they "would be well entitled to infer that Peter Thomas would have been less than objective on the subject of Roseanne Catt. Indeed you may well think that if there was any member of the New South Wales Police Force who should not have been assigned to this investigation, in particular not assigned to be in charge of it, it was Detective Sergeant Peter Thomas, who had this prior antagonistic relationship with Mrs Catt" (S/U p121). Det Sgt Thomas and Mr Barry Catt As to his relationship with Mr Catt, Mr Thomas said that whilst previously stationed at Taree he had met Mr Catt but had only done business with him on two occasions that he could recall, when Mr Catt had done work on a vehicle which he owned and when he had sold Mr Catt a ski boat. He had also come across Mr Catt at "various venues socially" (H.Ex 2.6; T/T p1780). Mr Catt said that Mr Thomas had never been in his house at 1 Cornwall Street until the arrest of Ms Catt on 24 August 1989. He denied any visit by Mr Thomas for a purpose alleged by three of the Catt children, namely to take part in pornographic displays and to witness the Catt children being made to conduct themselves sexually with each other (H.Ex 2.6; T/T p206). He said that he had known Mr Thomas for a number of years as a "business associate". Mr Noel Jago Mr Jago said that he had seen Det Sgt Thomas at Mr Catt's business premises over a period of three to four years when Det Sgt Thomas had brought police vehicles for repair there. He also said that Det Sgt Thomas, Mr Catt and employees of Mr Catt would drink beer together on Friday nights. Ms Lorraine Pearson (Catt) Ms Pearson, Mr Catt's first wife, said that Det Sgt Thomas had come to the workshop to get work done on his car about half a dozen times between 1975 and 1982. She said that whilst she was living there, he was never invited into the house (H.Ex 2.5; T/T p1514). Ms Sharon Napper (Clarke) Ms Napper (Clarke) had a domestic relationship with Mr Catt after Ms Pearson had moved out lasting for about five years from 1982. She said she saw Det Sgt Thomas only once or twice at 2-8 Cornwall Street in that time and never at the house being entertained (H.Ex 2.4; T/T p1622). She said Det Sgt Thomas and Mr Catt were "mates" but she had never seen them drinking together although they had a common interest in cars and motorcycles (H.Ex 2.4; T/T p1626-7)." The role of Mr Newell 135 Davidson ADCJ summarised the evidence with respect to Mr Catt's friend, Mr Newell in the following terms: "Mr Newell, a retired automotive engineer, had lived in Taree and its environs for many years. He first met Ms Catt in January 1987 and said that even before marriage she was talking of having Mr Catt treated and having him "committed" (H.Ex 2.4; T/T p1229, 1257). Mr Newell said that Ms Catt had informed him that she believed that Mr Catt was not fit to run the business and that she and her son, Mr Bridge, could build the business and run it. He claimed that at about Christmas 1988, she had told him that he, Mr Newell, should help her to get rid of Mr Catt, "then you can come over here any time you like and use the workshop" (H.Ex 2.4; T/T p1241). Mr Newell said that Ms Catt told him of the sexual assault allegations as a further reason why Mr Catt should be excluded from the business (H.Ex 2.4; T/T p1242). He said that he had attended Mr Catt's committal proceedings in respect of the sexual assault charges in July 1989. On 31 July 1989, Mr Catt had been committed for trial. He said after that Ms Catt had spoken to him in terms that he should join the "winning side" otherwise people might think that he too had been engaged in sexual interference of the children (H.Ex 2.4; T/T p1243). The evidence of Mr Newell to the effect that Ms Catt had made statements consistent with the Crown's case before and during her marriage to Mr Catt was supported by the evidence of a number of other witnesses. These included Ms Beverley Lyons (H.Ex 2.4; T/T p1471-2); Mr Ian Lyons (H.Ex 2.4; T/T p1443-5A); Ms Tracy Taylor (H.Ex 2.6; T/T p1418-29); Ms Amanda Marlin (Taylor) (H.Ex 2.6; T1418); Ms Julie Banks (H.Ex 2.1; T/T p1000-1, 1005, 1008-10, 1019); Mr Brian Cross (H.Ex 2.3; T/T p1202-4, 1207); Mr Barry O'Brien (H.Ex 2.5; T/T p1126-39); Ms Janet O'Brien (H.Ex 2.5; T/T p884-92). Mr Newell had clearly formed a view favourable to Mr Catt during the disputes which developed between Mr and Ms Catt. He took an active role in arranging for a police investigation which led to Det Sgt Thomas being designated the officer in charge of it. He then made available a house from which Det Sgt Thomas and Det Paget might interview witnesses (see para. 521) and he took an interest in the detail of, and an actual part in, the investigation far greater than usual for a civilian. For example it was he who on 30 July 1989 went to the premises at 2-8 Cornwall Street and took liquids from Mr Catt's refrigerator which, on analysis, proved to be contaminated with Lithium and Rivotril (see paras. 273-278). At the conclusion of the trial of Roseanne Catt, he seems to have come into possession of a considerable number of the exhibits. Reference has also been made (para. 125) to his having a set of the proofs of evidence of Sharon Catt. No satisfactory explanation was put before me for Mr Newell being in possession of such materials. Mr Newell's conduct during the course of the section 12 hearing caused me concern in that he was in touch with at least one witness after being told he should not speak to anyone about the evidence given. Telephone Contact Between Witnesses At the section 12 hearing, evidence of a large number of telephone calls between a number of persons was admitted (H.Ex AE, AF, AG). Mr Molomby of counsel for Ms Catt has prepared a schedule comparing the dates of the calls made and the likely parties to them with dates on which witnesses were expressly requested in effect not to communicate with any person about the case. The phone services in question are in the name of or otherwise linked to, among others, Mr Newell, Mr Catt, Mr Thomas and the Catt children. I am satisfied on Mr Molomby's analysis that a large number of these calls were made at a time after requests were made to witnesses who were parties to these calls not to communicate with others as to the case. There is no evidence, however, as to what any particular person may have said to any other during the course of any of these telephone calls. This material was not the subject of oral evidence. I have been unable to reach any firm conclusion as to the evidentiary value of this material, although it raises considerable concern as being suggestive of a possibility that there may have been improper communication between witnesses during the course of the hearing. I have formed a view that this material should be further investigated to determine whether any criminal act may have been committed. I propose to direct that copies of the relevant documents be forwarded to the Commissioner of Police and the Director of Public Prosecutions with a view to such further investigations. Ms Roseanne Catt Ms Catt at the trial said that, apart from seeing Mr Newell at the workshop talking to Mr Catt on one occasion, she did not know Mr Newell and said she did not have any conversation with him of a private or personal nature (H.Ex 2.9; T/T p2764). Mr Barry Catt's erratic behaviour Mr Newell, as well as a number of other witnesses, gave evidence of seeing Mr Catt behave as if intoxicated during a period from shortly after his marriage to Ms Catt in August 1987. Other witnesses gave evidence of observing Mr Catt behave in this way during the first half of 1988. There is other evidence, however, that as early as September 1986, before he had formed any relationship with Ms Catt, she had seen Mr Catt "walking around like a zombie". She said that he appeared to be in a drugged condition "all the time". She said that Mr Catt had put this down to pills which he was being given by Mr Jago in the absence of Ms Napper (Clarke) with whom Mr Catt was then in a relationship (Evidence of Ms Jan O'Brien H.Ex 2.5; T/T p897, 899). Mr Adrian Newell's intervention It was as a consequence of these observations of Mr Catt's odd behaviour that Mr Newell began to suspect that Mr Catt may have been overdosed with his prescribed medication or with some other substance. It was this which led him to contact ICAC and which in turn led to Det Sgt Thomas being put in charge of the investigation." Part 10 - The allegation of conspiracy and count 5 136 The preceding discussion provides the background to Mr Newell's involvement. Davidson ADCJ considered the evidence in relation to counts 5 and 9 in the context of the allegation by the defence that the case against the appellant was false and created from a conspiracy involving a number of persons including Det Sgt Thomas and Mr Newell. The first count considered was count 5 which relates to the administering of various drugs to Mr Catt. His Honour's discussion is in the following terms commencing with an account of the drugs prescribed for Mr Catt by medical practitioners: "LITHIUM / RIVOTRIL AND MR BARRY CATT Dr Aguado The first specialist medical practitioner who prescribed Lithium for Mr Catt was Dr Aguado who, as a trainee psychiatrist, saw Mr Catt following his committal to a hospital in Watt Street, Newcastle on a schedule completed by Dr Richardson, psychiatrist, on 25 August 1987. Dr Aguado prescribed 500mg three times per day. On the day before his discharge on that schedule, Dr Aguado also prescribed Rivotril, 1mg three times per day. Later, however, before he left the hospital on 28 September 1987 after another admission, Dr Aguado took Mr Catt off Rivotril at his own request (H.Ex 2.1; T/T p1035-6, 1041). Dr Aguado said that Lithium takes some ten to twelve days to have effect while Rivotril, a quicker acting drug, takes effect within a few hours of ingestion (H.Ex 2.1; T/T p1023 et seq ). Rivotril may be prescribed to accelerate the calming effect of Lithium. Dr Sandfield Mr Catt was also treated by Dr Sandfield, psychiatrist, who scheduled him for re-admission to hospital on 5 September 1987. Dr Sandfield had also put Mr Catt on Lithium together with Rivotril. He ceased to give him Rivotril, however, at about the end of September 1987. He said that he had initially given Mr Catt some Rivotril from his own stock and had given him a written prescription for it on or about 3 September 1987 (H.Ex 2.6; T/T p1083-6). Dr Sandfield said that when Rivotril was discontinued, other drugs, Neulactil and Tegretol were prescribed instead. He had no record of any prescription for Rivotril for Mr Catt in 1989 (H.Ex 2.6; T/T p1090-2). Rivotril: How Much of it was Dispensed? Mr Catt said that he had always used Owen's Pharmacy at Taree to obtain his prescribed medication (H.Ex B, a statement made on 7 August 1989). Mr Owens, the Taree Pharmacist who gave evidence only at the trial (H.Ex 2.5; T/T p1181-9), identified his computer record of Mr Catt's dispensing history (T.Ex BB; H.Ex DD). He also identified a number of Mr Catt's prescriptions and repeat authorisations (see H.Ex SSS). The patient dispensing history (H.Ex DD), is for the period August 1987 to September 1989. It shows that there was only one dispensing of Rivotril in that period. The prescription provided for one repeat. The clear inference from the documents available is that the original prescription for Rivotril was dispensed on 29 October 1987 and that the repeat was never dispensed (see H.Ex SSS supplemented by the Crown during the section 12 hearing with what on its face is the pharmacy copy of the repeat authorisation indicating that no medication was dispensed on the authority of it). As at 29 October 1987 and at all material times thereafter, the evidence supports the conclusion that only one container of Rivotril had been dispensed for Mr Catt and even before that date, he was no longer taking that medication. It would seem likely, therefore, that none of the contents of that container was consumed at least in accordance with the Doctor's directions." 137 Davidson ADCJ then discusses the involvement of Mr Newell in the gathering of evidence in relation to the possible contamination of Mr Catt's drinks. The sequence of events is unusual in so far as a police investigation of a possible attempt at the poisoning of any person is concerned: MR ADRIAN NEWELL'S VISIT TO 2-8 CORNWALL STREET ON 30 JULY 1989 At the section 12 hearing, Mr Newell gave evidence that some days prior to the weekend of 29–30 July 1989, he had spoken to Dr Sandfield and had obtained from him some empty specimen containers. He had also discussed with Dr Sandfield the erratic behaviour which Mr Catt was said to be exhibiting and whether overdoses of Lithium might be the cause. He said that Dr Sandfield had said that due to the slower reaction of Lithium, there might also be some other faster-acting substance such as Rivotril which might explain Mr Catt's quick deterioration in behaviour (H/T p904, 926). This evidence of Mr Newell's is of high significance, as will appear. Mr Catt was due to appear at the Taree Local Court on 31 July 1989 in the committal proceedings as to the sexual assault charges. On 30 July 1989, Mr Newell went to where Mr Catt was then still living at 2-8 Cornwall Street to pick up a change of clothes for Mr Catt so that he might be suitably dressed for court on 31 July. On his visit to the office at 2-8 Cornwall Street on Sunday 30 July, Mr Newell took from the office refrigerator, a carton of milk, another of chocolate milk and one containing orange juice. There was evidence that these were liquids which Mr Catt was in the habit of consuming in order to quench a thirst which is said to be aggravated by taking Lithium. Mr Newell took these cartons to his home at Old Bar and stored them in a refrigerator overnight. DET SGT THOMAS: DID HE KNOW MR ADRIAN NEWELL INTENDED TO TAKE THE LIQUIDS? Mr Newell said that he had spoken to Det Sgt Thomas in Taree on 29 July 1989. This was the first meeting between them after Det Sgt Thomas took charge of the investigation. Mr Newell deposed that he did not tell Det Sgt Thomas of his intention to collect consumables from 2-8 Cornwall Street, but that he did tell Det Sgt Thomas of his suspicions relating to Mr Catt being overdosed with prescribed medications. There was admitted at the section 12 hearing, without objection, a portion of the transcript of evidence given by Det Sgt Thomas at the Roseanne Catt committal proceedings (H.Ex AL). Det Sgt Thomas is recorded as having said in effect that what had been done by Mr Newell on 30 July had been at Det Sgt Thomas' suggestion made on 29 July: "I suggested that he might do something and he did it and later as the result of something else I was told I took the samples to the Government Analysts". Later in his evidence he said, Det Sgt Thomas is recorded as having said in effect that what had been done by Mr Newell on 30 July had been at Det Sgt Thomas' suggestion made on 29 July: "I suggested that he might do something and he did it and later as the result of something else I was told I took the samples to the Government Analysts". Later in his evidence he said, "He suggested to me that he might do certain things. He did that and gave me the samples that he'd taken possession of". On 31 July 1989 at his home, in the presence of Det Sgt Thomas, Mr Newell decanted some of the liquids from each of the three cartons into a specimen container previously provided to him by Dr Sandfield. He then gave the bulk of the material to Det Sgt Thomas who said he took the three cartons with him back to Newcastle where he returned that day from Taree. The bulk containers remained at the Newcastle Police Station until submitted to the Government Analysts for analysis on 10 August 1989 (H/T p49-50). At the section 12 hearing, Mr Thomas said that having met Mr Newell on 29 July 1989 and having picked up the materials on 31 July 1989, there was a further conversation between them in which Mr Newell had said he suspected that "Roseanne was drugging Barry". CONCLUSION AS TO DET SGT THOMAS' KNOWLEDGE OF WHAT MR ADRIAN NEWELL INTENDED I find that Det Sgt Thomas knew, on 29 July 1989 that Mr Newell was going to collect from the office premises at 2-8 Cornwall Street specimens of Mr Catt's liquids in order that they might be subjected to analysis for traces of Mr Catt's prescribed medication. I reject Mr Newel's evidence to the effect that he did not tell Det Sgt Thomas what he intended. I find that before he collected those substances, Mr Newell was well aware of the significance a finding in them of traces of Lithium and Rivotril in combination might have. I also regard it as likely that on or before 31 July 1989, and probably on 29 July, Mr Newell informed Det Sgt Thomas of the advice of Dr Sandfield that the odd behaviour of Mr Catt, noticed by a number of people including Mr Newell, may have resulted from overdosage of Lithium and a drug such as Rivotril in combination. THE ANALYSES FOR LITHICARB AND CLONAZEPAM Mr Newell said that he gave the specimen containers and their contents to Dr Sandfield with a request that he have them tested (H/T p901). Part of H.Ex E consists of a one-page signed statement dated 22 November 1989 of Mr John Dickeson, Clinical Chemist, Royal Newcastle Hospital. Whether there should be a second page of this statement I am unaware. The other part of H.Ex E is extracts from a statement of Dr Sandfield dated 18 September 1989, only the second page of which bears signatures. Neither Dr Sandfield nor Mr Dickeson was called at the section 12 hearing and Mr Dickeson was not called at Roseanne Catt's trial. Having regard to the importance of these witnesses, this was an unsatisfactory way of presenting their evidence at the section 12 hearing. If there was an explanation for the absence of these witnesses then I am not aware of it except that I understand that Dr Sandfield may be in ill-health. So far as H.Ex E relates to Dr Sandfield, however, it may be regarded as uncontroversial. It refers to a conversation with Mr Newell at the end of July 1989 concerning milk and orange juice taken from Mr Catt's refrigerator and continues, "As a result, I made some arrangements for samples of the liquids to be analysed at the Royal Hospital, Newcastle". Mr Dickeson's statement was admitted, without objection, and I propose, therefore, to treat it too as evidence of the facts asserted. It shows that on Monday, 7 August 1989, Mr Dickeson received from Dr Sandfield the four specimen containers; two with orange juice, one of plain milk and the other of chocolate milk. He also received a request on an accompanying form from Dr Sandfield that the contents be tested for both Lithium and Clonazepam (H.Ex 12). Mr Dickeson "subsequently" tested one of the containers of orange juice for Lithium and found it to contain greater than 200mg per litre of that substance. He carried out no further tests on any of the substances for reasons which do not appear. He contacted Dr Sandfield and informed him of what he had found. On the same day as he spoke to Dr Sandfield, he spoke to Det Sgt Thomas. As will be seen it is likely that Mr Dickeson spoke to Det Sgt Thomas on 7 August 1989. All specimen containers were then put into a foam "Esky" which was picked up from the hospital on 10 August 1989 by Det Sgt Thomas. H.Ex 12, the pathology request form addressed to the Royal Newcastle Hospital by Dr Sandfield for tests for the presence of Lithium and Clonazepam, has a notation on it "send to Div'n Anal Labs". On the back of the form there is some other unidentified writing part of which reads as follows, "Lithium and Clonazepam levels – sent to Analytical Laboratories, Lidcombe". This clearly refers to the sending of the materials for further testing as to both substances to the Government Analytical Laboratories in Lidcombe, and suggests these were the terms of the initial request received (para. 314). DET SGT THOMAS' INTERVIEW WITH MR BARRY CATT ON 7 AUGUST 1989 On 7 August 1989, after he had given evidence at the Family Law Court, Mr Catt was interviewed by Det Sgt Thomas at the Newcastle Police Station and signed the statement then made (H.Ex B). Mr Catt confirmed to Det Sgt Thomas that his current dose of Lithium was four tablets in the morning and four in the evening usually taken with milk. He said he normally got a prescription for Lithium from Dr Sandfield when he visited him for a check up and blood test for Lithium levels. He said that his prescription was for one bottle of 100 tablets and one repeat authorisation for the same number. Mr Catt claimed that on the majority of occasions, Ms Catt would "negotiate" his prescriptions. This does not however seem to accord with such prescriptions and repeat authorisations as are in evidence, H.Ex SSS. There are two prescriptions or repeats dated within the period 1 May 1989–31 July 1989 specified in Count 5 of the indictment. Only one of these indicates that Ms Catt picked up the medication, the other appears to be signed by Julie Catt. Of the other eight which bear dates outside that period, only two indicate that the medication was collected by Roseanne Catt, these being dated in February 1987 and March 1988. The fact, of course, that one of the Catt children may have collected the medication on other occasions does not exclude that they may have done so on behalf of either Ms Catt or Mr Catt. Mr Catt said that he did not think that in the month or six weeks prior to 7 August 1989 Ms Catt "filled any prescriptions because our marriage has reached the stage of no return" (H.Ex B, Q&A 16). Before then, he maintained, he collected the medication the majority of times prior to 23 May 1988 when he commenced living by himself at 2-8 Cornwall Street (H.Ex B, Q&A 17-19). Mr Catt said that he did not think that in the month or six weeks prior to 7 August 1989 Ms Catt "filled any prescriptions because our marriage has reached the stage of no return" (H.Ex B, Q&A 16). Before then, he maintained, he collected the medication the majority of times prior to 23 May 1988 when he commenced living by himself at 2-8 Cornwall Street (H.Ex B, Q&A 17-19). Mr Catt said that when Ms Catt did pick up the tablets she would take them to 1 Cornwall Street. When he ran out of tablets at the workshop he had to ask her if she had any at the house and he said "she normally did". He maintained that of those he kept in the office where he lived after 23 May 1988, Ms Catt often asked him if he had the tablets and would sometimes get them for him from the cupboard he kept them in (H.Ex B, Q&A 25-27). PROVENANCE OF THE MILK AND ORANGE JUICE Mr Catt said he normally bought from the milkman two litre plastic containers of chocolate milk and "until about 2-3 months" prior to 7 August 1989, a two litre carton of white milk every day. He said that in the previous three months staff had not been coming into the office for morning tea so he might be getting only a two litre container of white milk every two days. He claimed that during the three month period prior to 7 August 1989, only he had used the milk in the refrigerator (H.Ex B, Q&A 31-35). Mr Catt said that on Thursday, 27 July he had bought the milk which Mr Newell had removed from his refrigerator on 30 July 1989, and that he had drunk some from each container on Friday, 28 July. He tended to exclude Saturday or Sunday as a day on which he might have consumed any of the rest because he said, "I haven't been drinking much over the weekends because I have been steering clear of the business to avoid Roseanne and the children". He said that he had bought the orange juice on "the same night" as he bought the milk (H.Ex B, Q&A 46–48). Mr Catt told Det Sgt Thomas that he was not aware that Mr Newell had removed liquids from his office refrigerator on 30 July 1989. Det Sgt Thomas confirmed that on 31 July 1989 he had spoken to Mr Newell about the containers and "about the reason he took possession of them" (H.Ex B, Q&A 42). Det Sgt Thomas also informed Mr Catt that a scientific analysis had been carried out on a portion of the contents "of each" of these containers by "Dr Dickeson" of the Royal Newcastle Hospital and that a trace of the drug Lithium was located "in each of these samples". This of course, although inaccurate, confirms Mr Dickeson's statement to the effect that he had spoken to Det Sgt Thomas (H.Ex B, Q&A 42-44). Det Sgt Thomas also informed Mr Catt that a scientific analysis had been carried out on a portion of the contents "of each" of these containers by "Dr Dickeson" of the Royal Newcastle Hospital and that a trace of the drug Lithium was located "in each of these samples". This of course, although inaccurate, confirms Mr Dickeson's statement to the effect that he had spoken to Det Sgt Thomas (H.Ex B, Q&A 42-44). WAS MS ROSEANNE CATT THE ONLY PERSON WHO HAD AN OPPORTUNITY TO PUT THE LITHIUM AND RIVOTRIL IN THE LIQUIDS? Accepting the accuracy of Mr Catt's answers to Det Sgt Thomas as recorded in H.Ex B, if Ms Catt did put or cause to be put Lithium and Rivotril in the liquids which Mr Newell removed from Mr Catt's refrigerator on 30 July 1989, she could only have done so after Mr Catt had purchased them on the evening of Thursday, 27 July and before Mr Newell removed them on Sunday, 30 July 1989. If Mr Catt did consume some of those liquids on Friday, 28 July as he said he did, there is no evidence or suggestion that he was adversely affected by it at any relevant time. The evidence of Mr Newell is that Mr Catt had spent the weekend of 29–30 July away from 2-8 Cornwall Street either at Mr Newell's place or at the house of Mr Catt's friend, Mr Max French. Whatever opportunity Ms Catt may have had to place the medications in Mr Catt's liquids, Mr Newell also had an opportunity. Having discussed the matter with Dr Sandfield some days previously, he was aware of the doctor's view that overdoses of Lithium and Rivotril in combination might provide an explanation for the odd behaviour being exhibited by Mr Catt. There is no direct evidence that Mr Newell independently of Mr Catt had access to either of these prescribed medications on or before 30 July. Mr Catt, however, told Det Sgt Thomas that he kept his medications in the kitchen at the office at 2-8 Cornwall Street (H.Ex B, Q&A 23), the place to which Mr Newell went on 30 July and removed the very liquids later found to be contaminated with medications of the kind prescribed for Mr Catt. WHEN WAS THE REQUEST FOR RIVOTRIL ANALYSIS MADE TO THE GOVERNMENT ANALYTICAL LABORATORIES? Det Sgt Thomas said at the trial that he had delivered the bulk liquids together with the specimen containers to a person at the Government Analytical Laboratories he described as a female, "Dr Prolov" (H.Ex 2.6; T/T p1747). Ms Tatiana Prolov, a senior analyst at the Forensic Toxicology Laboratory at Lidcombe, confirmed receipt of the liquids at the Laboratory on 10 August 1989. The associated documentation which may have established the scope of that request for analysis, however, is not in evidence. Ms Prolov was shown a document which she described as "not a standard form that came from the hospital" which she later specified as Newcastle Hospital (H.Ex 2.5; T/T p1531, 1533). Whether this was H.Ex 12 or a copy of it does not appear nor is it anywhere else affirmatively established what the initial request for analysis was. If it was H.Ex 12, then it was clearly enough a request for analysis of both substances. There is a reasonable inference, which I draw, that since Dr Sandfield's request to Newcastle Hospital was for analysis for both substances, which Mr Dickeson seems to have been unable or unwilling to comply with in full, it is likely that a request for analysis for both Lithicarb and Clonazepam was made to the Government Analytical Laboratories when the milk and orange juice were delivered on 10 August 1989. This is suggested by the note on the reverse side of H.Ex 12 (see para. 296). It is clear, however, that different analysts conducted, on different dates, a separate test for each substance. The first analysis was for Lithium levels which were confirmed as to each of the containers by Mr Kacprzak on 15 August 1989. On 29 August 1989, Mr Sheehy tested for and found traces of Clonazepam (H.Ex 2.6; T/T p2330. See also certificates, T.Ex VV; H.Ex D). Although his certificate purports to show results for both Clonazepam and Lithium, Mr Sheehy incorporated into his certificate the results obtained by Mr Kacprzak for Lithium. The gap in dates between the test for Lithium and that for Clonazepam, and in particular the fact that the test for Clonazepam did not take place until after 24 August 1989, the date of Ms Catt's arrest, is a matter of significance (see paras. 429-448). Ms Maree Nieradka (H.Ex 2.5; T/T p2036-40) said that the Trace Metals Laboratory in which Mr Kacprzak worked and in which he did the testing for Lithium, was separate and distinct from the Forensic Toxicology Laboratory in which Mr Sheehy did the testing for Clonazepam. Whether, however, this division of functions may have been the reason for the fourteen day delay between the tests does not appear. A document internal to the Government Analytical Laboratories which is in evidence, Pt H.Ex C, consists of photocopies of two separate documents. Firstly, there is a "Request for Analysis of Biological Specimens" which does not appear to be the initiating request in spite of its title, and which relates to Lithium. The document sets out "Doctor or hospital submitting specimen for return of report". Against this appears "Newell, Adrian T296F.Tox Laboratory". T296 is a reference number given internally within the Government Analytical Laboratories. This document was received by Mr Flanjak (H.Ex 2.3; T/T p1526-7), the officer in charge of the Trace Metals Laboratory on 11 August 1989 from another laboratory employee, Ms Roslyn Wilson (H.Ex 2.7; T/T p1522-5). Mr Flanjak passed the materials for testing to Mr Kacprzak. Ms Carmel Anderson, who was involved in making a record of the receipt of the materials when delivered, said she thought the name "Newell" came from the police officer who brought in the samples (H.Ex 2.1; T/T p2013). Later, however, she said that she thought that the police officer's name was Newell and he wanted the items recorded in his name. She said he gave the name "Newell" otherwise she would not have put that name in the laboratory register. She said she also marked the name "Newell" on the containers of materials to be tested. The second part of H.Ex C consists of a document entitled "Report of Analysis", signed by Mr Kacprzak indicating the result of the Lithium test. The combined document got into evidence at the trial in photocopy form in order to deal with an objection (H.Ex 2.4; T/T p2274). The certificate of Mr Sheehy, as to Clonazepam, indicates in its original form that the items analysed were received on 10 August 1989 from "Constable Paget". This was deleted from the certificate tendered at the trial as was the incorporation into Mr Sheehy's certificate of findings in relation to Lithium, an analysis which of course he did not perform. Both the original form of the certificate as well as the photocopy, made to deal with objections taken, are now H.Ex D. Although the certificate is dated 29 September 1989, it is clear from both the transcript of evidence and from her Honour's Summing Up that the evidence was that the Clonazepam analysis was done on 29 August 1989 (H.Ex 2.6; T/T p2330; S/U p130). DET PAGET AND THE HANDBAG On 24 August 1989 when Ms Catt was arrested and the house at 1 Cornwall Street then occupied by her was searched, a number of items were removed by the police. Det Paget said in evidence that he found in a black handbag which was in a drawer in the main bedroom, two medication containers, one labelled Rivotril and the other Lithium. The significance for the Crown case of the finding of these substances in combination in circumstances which strongly suggested that Ms Catt was and had been in possession of them is apparent. These very substances were found in combination in Mr Catt's liquids as analysis proved (but not until 29 August 1989 in the case of Clonazepam). This provided ground for the inference that as at 27–30 July 1987 when Ms Catt may have had the opportunity to put these substances in combination into Mr Catt's liquids, she also had access to them. No black handbag was noted on the record made of property seized in the search (H.Ex HH) nor is there any specific reference in it to "Lithium" or "Rivotril". Det Sgt Thomas and Det Paget both said that the record of property seized (H.Ex HH) was compiled by them in conjunction with Ms Mound, described as the Inspector's clerk, who was called at neither the trial nor the section 12 hearing. The omission from H.Ex HH of these items is all the more remarkable especially so far as Lithium is concerned, because whether or not the police as at 24 August 1989 were likely to have recognised the significance of Rivotril in conjunction with Lithium, Det Sgt Thomas well knew of the significance of at least Lithium since he had been informed by Mr Dickeson of it having been found and had passed on that information to Mr Catt on 7 August 1989 (H.Ex B). One would have expected therefore in the record of property seized, a clear indication, if it had been found, that Ms Catt had Lithium at 1 Cornwall Street in her possession and that fact duly and carefully recorded providing as it did confirmatory evidence of Mr Newell's suspicions expressed to Det Sgt Thomas on 30-31 July 1989, as to Ms Catt." The problem of an affidavit sworn by Mr Catt 138 Davidson ADCJ admitted into evidence part of an affidavit sworn by Mr Catt in connection with an application which he made for victim's compensation under the Victims Support and Rehabilitation Act 1996. It was given the label H.ExAAB. 139 Objection was taken to the admission of the evidence having regard to s 84 of the Act relying on the decision of this Court in R v Kremmer (2000) 50 NSWLR 538. His Honour provisionally admitted the document, it being argued that on its proper construction s 84 was limited to sexual assault matters. 140 Section 84 is in the following terms. Although it was different in Kremmer the differences are not material to the decision in the present appeal: "(1) Despite any rule of law to the contrary: (a) an application for statutory compensation or for payment for approved counselling services, and (b) any documents supporting the application (whether or not furnished when the application is lodged) or any documents furnished to, or prepared by or on behalf of, the Tribunal at any time in connection with the application, and (c) any transcript of evidence given to the Tribunal in a hearing of the application; are not admissible in evidence against any person in 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. (2) A person cannot be required (whether by subpoena or any other procedure) to produce any application, document or transcript of evidence that is not admissible in evidence in criminal proceedings under subsection (1) in, or in connection with, any criminal proceedings." 141 In Kremmer the majority judgment was delivered by Studdert J. When considering the class of documents protected by subsection (2) his Honour has been generally understood as determining that subsection (1) should be construed as precluding the admission into evidence of any document falling within the relevant class, whether that document was tendered by the accused or the prosecution. 142 The relevant passages from the reasons of Studdert J are as follows: "Whilst s 84(1) prohibited the evidentiary use of the documents categorised, upon its introduction s 84(2) was directed at the removal of any requirement to produce such documents in the circumstances addressed in the subsection. A person cannot be required, by way of subpoena or otherwise, 'in, or in connection with, any criminal proceedings' to produce any such documents if they are 'not admissible in evidence in criminal proceedings under subsection (1)'. The crux of the appellant's submission is that s 84(1) only prohibits the admissibility of documents in the defined categories against any person and does not prohibit such admissibility for any person. For example, the subsection, it was submitted, does not prohibit the admission of such documents into evidence for a relevant purpose such as to challenge the evidence of an alleged victim. It was submitted that s 84(2) does not permit resistance to a subpoena or other procedure for the production of a document of the type identified where the production is called for by the person charged in the criminal proceedings. Section 84(2) could have been more clearly expressed but I do not consider it ought to be construed in the manner for which the appellant contends. It is not, of course, for this Court to amend the subsection, but rather to determine what parliament meant by the language it employed. Spigelman CJ recently reviewed the relevant principles of statutory construction in R v Young (1999) 46 NSWLR 681 at 686 [5]-[10]. The Chief Justice said (at [6]): 'In order to construe the words actually used by parliament, it is sometimes necessary to give them an effect as if they contained additional words. This is not, however, to introduce words into the Act. This involves the construction of the words actually used … ' " at 540-541 143 Dowd J dissented the critical passages in his Honour reasons being: "The words 'admissible in evidence' disclose a clear legislative intention to protect the accused charged of an offence, the offence giving rise to a victim's compensation claim. There is, therefore, no expressly legislative prohibition against the subpoenaed material which may be used by an accused. Clearly, an accused does not seek to admit evidence against his or her own interest. 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 Documents which I provisionally admitted as H.Ex AAB, consist of a portion of an affidavit of Mr Catt sworn on 23 August 1996 in connection with an application by him for victim's compensation under the Victims Support and Rehabilitation Act 1996. The rest of H.Ex AAB is edited portions of a statement of Mr Newell in support of Mr Catt's application. Neither of these documents was shown to any witness whilst in the witness box at the section 12 hearing. H.Ex AAB was provisionally admitted because the Crown took objection to it in reliance on section 84 of the Act as that section was interpreted by the Court of Criminal Appeal in R v Kremmer (2000) 50 NSWLR 538. I initially rejected the tender on the authority of Kremmer's case. On further reflection, however, I provisionally admitted the documents, Mr Molomby having indicated that he proposed to challenge my initial judgment in the Court of Criminal Appeal. It seemed to me on the balance of convenience that it was better to admit the documents provisionally. If the Court of Criminal Appeal holds that Kremmer's case is of general application and not limited to sexual assault matters then any conclusion drawn wholly or partly on the basis of these documents will need to be discounted to that extent, although I do not regard H.Ex AAB as decisive. Part of H.Ex AAB, consisting of the edited statement of Mr Newell, indicates (at paras. 42-44) that having been concerned about symptoms exhibited by Mr Catt for some months prior to the end of July 1989, Mr Newell suspected Ms Catt of administering large doses of Lithium to Mr Catt. He then continues, "After consultation with Barry's doctor and chemist, I made enquiries which led me to believe that Roseanne may be drugging Barry with some other quicker acting drug as well (Clonazepam)". The context clearly indicates that this belief of Mr Newell's was formed prior to 30 July 1989. This simply confirms what Mr Newell said in evidence in the section 12 hearing. Later in the statement (paras. 53-54) Mr Newell makes reference to proceedings which in their context, are clearly the Family Law Court proceedings on 7-8 August 1989. He recites taking Mr Catt after court to the Newcastle Police Station. Para. 53 then continues, "By coincidence they had that afternoon received results of the analysis of the drinks that I had previously supplied from Barry's office fridge. The police told Barry that the results showed that he was being poisoned by large overdoses of Lithium and Clonazepam". This is either untrue or Mr Newell is at least partially mistaken. There had been no testing of any of the substances for Clonazepam as at 7 August 1989, only for Lithium. The reference to Lithium and Clonazepam in combination, however, particularly as having come from "the police" is a factor in assisting to the conclusion that prior to 24 August 1989, Det Sgt Thomas is likely to have been aware of the importance of a connection being established between Ms Catt and her possession of both of these substances. The reference to Lithium and Clonazepam in combination, however, particularly as having come from "the police" is a factor in assisting to the conclusion that prior to 24 August 1989, Det Sgt Thomas is likely to have been aware of the importance of a connection being established between Ms Catt and her possession of both of these substances. By itself, however, I do not regard this evidence as supporting that inference of knowledge. It is in my view too easily explicable in terms of hindsight. There is other evidence already canvassed tending to support the inference that prior to 24 August 1989, Det Sgt Thomas was aware of the significance of Lithium and Rivotril in combination. MS ROSEANNE CATT'S RECORDED INTERVIEW OF 24 AUGUST 1989 The omission from H.Ex HH, the record of property seized, of any reference to a container of Lithium is to be considered in the context of the following: After the search on 24 August 1989, and the police had returned with property seized to the Taree Police Station, Ms Catt was interviewed by Det Sgt Thomas and Det Paget. There were a number of recorded interviews. These documents (H.Ex UUU) are of no evidentiary significance as such in the Crown's case since Ms Catt elected not to respond to the questions, but in an interview commencing at 11.45am, Det Sgt Thomas is recorded as having told Ms Catt that he had been informed that she had access to the refrigerator and the kitchen cupboards in the office at 2-8 Cornwall Street. He is recorded as having further informed her that she also had access to "prescribed Lithicarb tablets Barry Catt was taking during that period". He then told her that on 30 July 1989, partially filled containers of chocolate milk, plain milk and orange drink were removed from that refrigerator and subsequently subjected to scientific analysis which resulted in quantities of Lithium having been located "in each of the containers and their contents". Clearly, by this time, Det Sgt Thomas had knowledge of the results of Mr Kacprzak's analysis as well as Mr Dickeson's. If on that day Det Paget had indeed found a Lithium container in circumstances strongly suggestive of Ms Catt's possession of it then I find it remarkable that the recorded interview does not go on to recite that. Mr Thomas said at the section 12 hearing that he could not recall if he had interviewed Ms Catt about a black purse (handbag) or about Lithium or Rivotril having been located in a black purse (H/T p1109). The evidence indicates that he did not. The significance of at least Lithium was as well known to Det Paget as it was to Det Sgt Thomas as at 24 August 1989. Det Paget said in evidence that he would have been looking mainly for Lithium in conducting the search at 1 Cornwall Street. He could not explain the absence of any reference to a black purse in the record of property seized (H/T p533). He said that he thought that Mr Newell had told the police that they should look for Lithium although he did not know about Rivotril (H/T p578). DET PARKES Det Parkes was a physical evidence officer who took part in the search. He said that his role was "in part" that of Exhibits Officer. He had specific training in the collation of physical evidence. He said he did not keep an exhibits log but he did "keep a log of certain exhibits that I took possession of". The notes which he took are H.Ex AAA. There is a reference in them to a "quantity of prescribed drugs" noted as having been recovered from the en suite of the main bedroom by Const Cottee. There is also a reference in H.Ex AAA to an envelope containing assorted tablets from bedside drawers, having been found by Det Paget (c/f para. 348). There is no reference in H.Ex AAA to Lithicarb, Lithium, Rivotril or Clonazepam nor to a black purse. There is a reference to a black brief case but it is clear from the evidence of Det Paget that this was a distinct and separate item from the black handbag. Det Parkes was not asked to arrange for the analytical testing of any substances said to have been found during the search on 24 August 1989, except that Det Sgt Thomas asked him to arrange for the analytical testing of a bottle labelled "Bach Flowers" on 22 September 1989 (H/T p603-29), an irrelevant substance. CONST COTTEE Const Cottee also took part in the search. She said that the words "Lithium", "Lithicarb", "Rivotril" and "Clonazepam" meant nothing to her in terms of that search (H/T p512-3). DET PAGET: PRIOR INCONSISTENT STATEMENTS In Det Paget's recorded interview of 12 March 1990 with Det Insp Chapman of the Police Internal Security Branch the following appears (H.Ex ZZZZZ): In Det Paget's recorded interview of 12 March 1990 with Det Insp Chapman of the Police Internal Security Branch the following appears (H.Ex ZZZZZ): 'Q92 Did you search the main bedroom at 1 Cornwall Street at any stage on 24 August 1989? A92 No but I did enter it. Q132 Did you take possession of either a black handbag, a white Glomesh handbag, a black clutch bag and a beauty case and jewellery? A132 No. Q133 Did you take possession of any medication including Ventolin? A133 No. Det Paget signed each page of H.Ex ZZZZZ after acknowledging that he had read each page and confirmed its truth and accuracy apart from "a few alterations" which are presently irrelevant (Q&A 407-412). Mr Molomby of counsel conceded that H.Ex ZZZZZ was available to defence counsel at trial. The passage quoted above was not brought to the attention of Det Paget either at the trial or the section 12 hearing. Earlier in the interview, Det Paget said in effect that to his knowledge all property taken during the search on 24 August 1989 had been entered in the record of property seized at Taree Police Station (Q&A 121). He also said, however, that the entering of that record took place at about 7.00pm that is to say after the recorded interviews had been conducted with Ms Catt (Q&A 125). He was shown a five-page list of property and asked if he had knowledge of any of it having been removed on 24 August 1989. He gave a lengthy answer commenting on various items in the list included an "envelope containing tablets". He said he had not seen any such envelope (c/f para. 340). During the course of the answer he did not refer to a black handbag or pill containers labelled either Lithium or Rivotril (Q&A 138). Pt H.Ex AK consists of page 974 of the transcript of evidence at Ms Catt's committal proceedings. On that page, Det Paget refers to items MFI Q and R which then became Exhibit 89, which, it seems to be agreed, is the container of Lithium and of Rivotril claimed to have been found by Det Paget. He gave evidence (Pt H.Ex AK) that he "found them in a small black purse in a bedroom drawer of a dresser". He was asked of what bedroom and said, "Of the main bedroom of the Cornwall Street house. They were in a little black purse together with some Pt H.Ex AK consists of page 974 of the transcript of evidence at Ms Catt's committal proceedings. On that page, Det Paget refers to items MFI Q and R which then became Exhibit 89, which, it seems to be agreed, is the container of Lithium and of Rivotril claimed to have been found by Det Paget. He gave evidence (Pt H.Ex AK) that he "found them in a small black purse in a bedroom drawer of a dresser". He was asked of what bedroom and said, "Of the main bedroom of the Cornwall Street house. They were in a little black purse together with some – I think there was (sic) a few coins". The date on which Det Paget gave that evidence does not appear but it is agreed that the committal proceedings took place between 14 May 1990 and 27 July 1990. Thus on a date between those dates, Det Paget, notwithstanding his denials on 12 March 1990 to Det Insp Chapman (H.Ex ZZZZZ), was positively asserting on oath that he had found a container each marked Lithium and Rivotril at 1 Cornwall Street, in a black "purse" in a drawer in the main bedroom. DID DET PAGET IDENTIFY THE CONTAINERS OF LITHIUM AND RIVOTRIL AT THE TRIAL? As I understood the submissions of Mr Martin of counsel, he suggested that Det Paget did not identify at the trial the containers he claims to have found. The transcript, however (H.Ex 2.5; T/T p2122-3) records Mr Crown on 9 July 1991 as having shown Det Paget two containers of which Det Paget said, "They were in the black handbag". There followed an objection to the tender which was withdrawn at that stage, Mr Crown asking that he might remove some part of "that MFI". It is clear from the context that all concerned understood it was for the purposes of analysis that it was being removed, the contents of these containers not having been previously submitted for analysis. Senior Counsel for Ms Catt at the trial made it clear that he had no objection to that course (H.Ex 2.5; T/T p2123). Subsequently (H.Ex 2.5; T/T p3776) the Crown is noted as having referred to page 2123 of the transcript and having it noted that he had been showing the witness two containers, which were subsequently marked for identification 92 and 134. Mr O'Louglin QC, for Ms Catt, is recorded as having said that there was "no issue in regard to the bottle of Rivotril and Lithicarb". MFI 92, the container said to contain Rivotril which subsequently became T.Ex DDD, was so marked during the evidence of Ms Amanda Marlin (Taylor). She spoke of an occasion, which she placed in about March 1988 (H.Ex 2.4; T/T p1365), of seeing Ms Catt taking a bottle of pills from her handbag and putting some of them in a glass of wine which was on the kitchen table and saying words to the effect that "she hopes it kills him". She described the pills that she saw as white and about the size of a tablet which Mr Crown, on 19 June 1991, showed the witness from the bottle which he then had marked MFI 92 (H.Ex 2.4, T/T p1363-4, 1380). MFI 92, the container said to contain Rivotril which subsequently became T.Ex DDD, was so marked during the evidence of Ms Amanda Marlin (Taylor). She spoke of an occasion, which she placed in about March 1988 (H.Ex 2.4; T/T p1365), of seeing Ms Catt taking a bottle of pills from her handbag and putting some of them in a glass of wine which was on the kitchen table and saying words to the effect that "she hopes it kills him". She described the pills that she saw as white and about the size of a tablet which Mr Crown, on 19 June 1991, showed the witness from the bottle which he then had marked MFI 92 (H.Ex 2.4, T/T p1363-4, 1380). As to MFI 134, the bottle of Lithium tablets which became T.Ex CCC, Mr Thomas said at the trial that he "first became conscious of pills and pill bottles" at the police station when he was going through articles which he said had been given to him by Det Parkes and which had been taken from the house at 1 Cornwall Street. He said, "I particularly recall Lithicarb tablets" and identified the container marked MFI 134 as what he had seen as well as other pill bottles (H.Ex 2.6; T/T p1767-8). There is no substance in Mr Martin's submission. The materials were positively identified as to the Lithium container by Mr Thomas at the trial and as to both by Det Paget. If, however, it is a correct deduction from the evidence that only one bottle of Rivotril was likely to have been available as at 24 August 1989 to Mr Catt (as to which see para. 457), then it follows that, if Det Paget is telling the truth, the one he found must have been that bottle. MR ADRIAN NEWELL FINDS ANOTHER BOTTLE OF RIVOTRIL On the question whether Ms Catt had access to Rivotril as well as Lithium in the period alleged in the indictment, the Crown relied on further evidence from Mr Newell. This evidence did not come to the notice of the Crown until seven days after Ms Catt's trial commenced on 7 May 1991 when Mr Newell gave a statement dated 14 May 1991 to a police officer at Taylor Square (H.Ex PPP), but before T.Ex CCC and T.Ex DDD were sent for analysis. This followed discussions he had with unidentified legal representative(s) of the Crown (H/T p958). According to Mr Newell, he and Mr Catt had gone to 1 Cornwall Street, Taree on 5 September 1989. This appears to have been the day on which Mr Bridge, Ms Catt's son, had been there to collect Ms Catt's belongings. A number of other people were there and Det Sgt Thomas and Det Paget were also called to the house (see H.Ex ZZZZZ, Q&A 331 et seq ). Mr Newell claimed that on kitchen shelving in the house he saw a number of containers of prescription medicines. He claimed that these were not visible without moving other bottles and containers in front of them. He took possession of five of them, one of which, according to its label, was of Rivotril dispensed by Owens' Pharmacy on 29 October 1987 for Mr Catt on Dr Sandfield's prescription. This was MFI 87 at the trial. The dispensing history for Mr Catt (H.Ex DD), as previously canvassed (see paras. 268-272), shows that the only container of Rivotril dispensed for Mr Catt by Mr Owens' pharmacy was on 29 October 1987. It was dispensed on Dr Sandfield's prescription (see also repeat authorisation, Pt H.Ex SSS). If both Det Paget and Mr Newell are telling the truth, there were two containers indicating Rivotril as their contents at 1 Cornwall Street in the period August–September 1989, one in a black handbag (purse) and one on a shelf. The container referred to by Mr Newell in his statement H.Ex PPP is, on its face, the one dispensed by Mr Owens. The question remains however as to what value can be placed on Mr Newell's evidence that he found it on 5 September 1989 at 1 Cornwall Street? This house had been, as recently as 24 August 1989, subjected to what appears to have been a thorough search by a number of police officers. According to their evidence, other prescribed medications had been removed as part of materials thought to be relevant to the police inquiry. Mr Newell sought to explain his failure earlier to bring the finding of the Rivotril container at 1 Cornwall Street to the attention of those prosecuting for the Crown, by claiming not to have realised the significance of it until he had spoken with Crown lawyers (H/T p958). I am unable to accept Mr Newell's evidence. On his own account, he had since before 30 July 1989 known that Dr Sandfield was of the opinion that odd behaviour exhibited by Mr Catt might be attributable to a combination of overdoses of Lithium and Rivotril, and Mr Newell said he suspected Ms Catt was responsible. MFI 87 was not admitted in evidence at the trial or the section 12 hearing nor was either of the pill containers T.Ex CCC or T.Ex DDD, which Det Paget claimed to have found, tendered at the section 12 hearing and I understand that they and MFI 87 are not now available. The importance particularly of T.Ex DDD (Rivotril) is clear. If such a labelled container had been in evidence, then it might have helped to explain how it came to be in existence, considering that by August–September 1989, it was almost two years since Mr Catt had been taken off Rivotril, and when it was likely that according to the evidence, only one container of that substance had been prescribed and dispensed for Mr Catt from a pharmacy. MFI 87 was not admitted in evidence at the trial or the section 12 hearing nor was either of the pill containers T.Ex CCC or T.Ex DDD, which Det Paget claimed to have found, tendered at the section 12 hearing and I understand that they and MFI 87 are not now available. The importance particularly of T.Ex DDD (Rivotril) is clear. If such a labelled container had been in evidence, then it might have helped to explain how it came to be in existence, considering that by August–September 1989, it was almost two years since Mr Catt had been taken off Rivotril, and when it was likely that according to the evidence, only one container of that substance had been prescribed and dispensed for Mr Catt from a pharmacy. Mr Martin, then of counsel for Ms Catt, asserted as a possibility that what had been sent for analysis as MFI 92 (T.Ex DDD), the Rivotril container claimed to have been found by Det Paget in the black handbag (purse), was in fact MFI 87, the Rivotril container produced by Mr Newell after the trial had commenced and claimed to have been found by him in the house at 1 Cornwall Street. If this was so, then there must have been serious error on the part of those representing the Crown which also escaped the notice of senior counsel for the accused and the learned trial judge. It also fails to explain the apparent existence of two Rivotril containers, MFI 92 and MFI 87. Det Newton who was assisting the Crown at the trial said that on 10 July 1991 she had received from Ms Michelle Taylor, solicitor instructing the Crown at the trial, two bottles already then identified and marked MFI 92 and MFI 134 respectively. Det Newton said she had delivered the bottle labelled Rivotril to the analyst, Mr Malhotra (H.Ex 2.4; T/T p2401-2) and the one labelled Lithium to another analyst, Mr Ziaziaris (H.Ex 2.5; T/T p2404-5). Mr Malhotra gave evidence on 6 July 1991 (H.Ex 2.4; T/T p2401-2) of having done the analysis and having issued his certificate (T.Ex AAA; Pt H.Ex RRR). He describes the bottle he received as "Revotril 2" (sic), an indication that it may not have been labelled in the pharmacy. The use of inverted commas in Mr Malhotra's certificate is not suggestive of typographical error or misdescription in the certificate. Mr Ziaziaris analysed the Lithium (MFI 134) and his certificate is T.Ex BBB (Pt H.Ex RRR). Contents of each container corresponded with its label. The question remains, what was done at the trial about MFI 87? Having first disclosed it to the Crown on 14 May 1991, on 13 June 1991 Mr Newell in evidence identified MFI 87 as one of the containers he claimed to have found in 1 Cornwall Street on 5 September 1989. Mr Crown sought to tender it but it was objected to partly on the basis that senior counsel for Ms Catt said that he had only been served with the statement in relation to it on 14 May 1991. The tender was rejected and the container became MFI 87 after counsel for the Crown had informed her Honour that Mr Catt would be recalled for the purpose of allowing Mr O'Loughlin to further cross-examine him as to Mr Newell's evidence. MFI 87 is not further referred to. The contents of that bottle are not shown to have been subjected to chemical analysis. Although Mr Catt was recalled at the trial, he does not seem to have been cross-examined as to a visit in September 1989 to 1 Cornwall Street. MFI 87 was in the hands of the Crown as early as May 1991, and Mr Catt was in the witness box for a number of days thereafter, but he does not appear to have been asked in chief or otherwise about any visit with Mr Newell to 1 Cornwall Street in September 1989 nor was he shown MFI 87. If there was only one container of Rivotril it must have been MFI 87 which was labelled in accordance with the pharmaceutical records, H.Ex DD, and the repeat authorisation Pt H.Ex SSS. If so, how did there come to be Rivotril tablets, as analysed, in a container labelled "Revotril"? What, in other words, was the source of those last-mentioned tablets? One possible answer is that they came from the container produced to the Crown by Mr Newell, MFI 87. The evidence does not permit an answer one way or the other or suggest when and in what circumstances this may have been done except that it is assumed, of course, it did not occur whilst MFI 92 and MFI 87 were in the possession of those prosecuting for the Crown. THE MANDARIN ETC Mr Newell, although having been put on notice by Dr Sandfield before 30 July 1989, said that he did not warn Mr Catt of the doctor's advice that Mr Catt's observed symptoms may have been due to Lithium toxicity with or without Clonazepam "administered by a third party" (see H.Ex 12). Nor did he warn Mr Catt generally of any suspicion he may have had as to foodstuffs in the office refrigerator. Mr Newell and Mr Catt gave in evidence that Mr Newell had driven Mr Catt to 2-8 Cornwall Street on the night of Sunday, 6 August 1987 in order that Mr Catt might obtain clothing, this time for his court appearance as a witness in the Family Law Court on 7 August 1989. Still not warned as to the risk of consuming anything whilst he was there, Mr Catt went into 2-8 Cornwall Street, leaving Mr Newell waiting for him in the car outside. Mr Catt said that his poor performance as a witness when he gave evidence on 7 August 1989 was because he felt "wonky". Mr Newell said signs of this were observed by him in court and, when later that day at Newcastle Police Station Mr Catt was interviewed by Det Sgt Thomas, he too gave evidence of Mr Catt's physical indications consistent with the evidence of Mr Catt and Mr Newell. Mr Catt said that his poor performance as a witness when he gave evidence on 7 August 1989 was because he felt "wonky". Mr Newell said signs of this were observed by him in court and, when later that day at Newcastle Police Station Mr Catt was interviewed by Det Sgt Thomas, he too gave evidence of Mr Catt's physical indications consistent with the evidence of Mr Catt and Mr Newell. The suggested explanation of this is that Mr Catt, whilst he was in the office premises at 2-8 Cornwall Street on 6 August getting his clothes, said he had felt pangs of hunger and thirst. Accordingly, he devoured some devon which was in the refrigerator, drank some milk and emerged from the premises, according to the evidence of both Mr Catt and Mr Newell, eating a mandarine. Although there was no direct evidence to support the contention, the inference which the jury were asked to draw was that Ms Catt had laced one or other of these foods with overdoses of Mr Catt's medication. Although 6 August 1989 was outside the relevant period charged in Count 5, the evidence was left to the jury as relevant to the question whether Ms Catt had caused Mr Catt to take overdoses of Lithium within that period (S/U p196). A submission by counsel to the effect that there was no evidence that the mandarine was contaminated was rejected on the basis that it was a matter for the jury (S/U p206). Clearly the Summing Up and submissions of counsel were meant to encompass the other material said to have been consumed by Mr Catt, as well as the mandarine. After Mr Catt had left the section 12 hearing and not subsequently recalled, a number of pages of transcribed evidence given during the committal proceedings in the Roseanne Catt trial were admitted into evidence. Included was H.Ex AN, being page 374 of Mr Catt's evidence in re-examination. He there confirmed that he had gone to the Family Law Court on Friday, 4 August and that Mr Newell had driven him down to the court again on Monday, 7 August. He was then asked: Q. I'll put a general question, prior to going to the family court on either of those days, did you go anywhere near your business or did you see your wife? A. No. The above evidence is of course not fresh in the established sense of the term. It was clearly available to counsel at the trial. Nor was Mr Catt given an opportunity to give any explanation as to this apparent inconsistency with his evidence at the section 12 hearing. I have already referred to Mr Newell's evidence of the improbability of his not warning Mr Catt before going into the office not to eat or drink anything. There i I have already referred to Mr Newell's evidence of the improbability of his not warning Mr Catt before going into the office not to eat or drink anything. There is also yet to be canvassed, evidence of Mr Fellows (see paras. 395-402), in light of which I am of the view that there is credible fresh evidence which leads me to the conclusion that I am unable to accept the evidence of either Mr Catt or Mr Newell on the issue of the mandarine, etc. Before dealing with Mr Fellows' evidence, I turn first to evidence as to who had access to the office refrigerator. ACCESS TO THE OFFICE REFRIGERATOR Evidence was given at the trial as to who may have had access to the refrigerator from which, on 30 July, Mr Newell had removed the milk and orange juice. On the Crown's case there was an obvious danger that contaminated edibles, including liquids, left in the refrigerator might have been consumed by a person or persons other than Mr Catt, posing a risk of detection for Ms Catt if she had followed a practice of lacing or spiking Mr Catt's edibles and more particularly his fluids. Much of the significance of this evidence has disappeared with the verdict of the jury as to Count 5. It is necessarily implicit in the verdict of guilty of an attempt that the jury were not satisfied beyond reasonable doubt that Ms Catt had succeeded in having Mr Catt take an overdose of Lithium between the amended dates charged in the indictment namely 1 May 1989 to 31 July 1989. The central issue for the jury on this charge must have narrowed to the question whether Ms Catt had put the substances into the milk and orange juice before Mr Newell removed them on 30 July 1989. According to Mr Catt's statement to Det Sgt Thomas of 7 August 1989 (H.Ex B), this could only have been between 27-30 July 1989. There were only two working days, 27 and 28 July, available in which Ms Catt might have contaminated the liquids with the prescribed medications if one of the objects was to embarrass Mr Catt at the Local Court proceedings on 31 July 1989. Mr Barry Catt Mr Catt said that he had moved across the road into the office premises on 23 May 1989 and had remained there until he left 2-8 Cornwall Street following the orders of the Family Law Court on 8 August 1989. He said that Ms Catt was at the office on Thursday and Friday, 27-28 July. She also had key access to the office which left open Saturday and Sunday as possibilities. Mr Catt also claimed to Det Sgt Thomas that for the three months prior to 7 August 1989, he had not had any of his staff come into the office for morning tea. Since then, to his knowledge, he was the only one who had used the milk from the refrigerator (H.Ex B, Q&A 33-34). Ms Faye Klarenbeek At the section 12 hearing Ms Klarenbeek, Ms Catt's sister, gave evidence of visits to 2-8 Cornwall Street for periods of up to three weeks at various times during 1989. She said that she often had morning tea or a meal at the office premises and saw no signs of anyone being restricted as to the use of the contents of the refrigerator. She did not however specify having been at 2-8 Cornwall Street at the end of July 1989 (H/T p1714-5). No satisfactory explanation was given as to why she was not called at the trial (H/T p1721). Ms Joy McGregor Ms McGregor, another sister of Ms Catt, also spoke of visits to 2-8 Cornwall Street. She said she had observed the availability of milk and other edibles. She said she had cups of coffee made with milk from the refrigerator and no-one had ever suggested that she should not consume things kept in the refrigerator (H/T p1733-5). She claimed as an explanation for not giving evidence at the trial of Ms Catt that she was frightened of Mr Thomas because when she visited the court during the trial he had threatened her (H/T p1737). She spoke to no-one in authority about the alleged threat (H/T p1744). Again I find that no convincing explanation has been offered as to why she was not called at the trial. In any event, neither her evidence nor Ms Klarenbeek's cover the crucial period in question, namely 27-30 July 1989. Mr Peter Bridge As a full-time employee at the workshop, no doubt Mr Bridge might have given, if called at Roseanne Catt's trial, evidence similar to that which he gave at the section 12 hearing, namely, that he had been given no indication as to the danger of consuming anything from the refrigerator, and that the practice was for employees to have morning tea in the office (H/T p1655). Although he was not specifically asked about the relevant period 27–30 July, it may be assumed that he would have been able to give evidence of access to the refrigerator specifically in relation to working days in that period because of his status as a full-time employee. Her Honour regarded Mr Bridge as a competent and compellable witness although in effect an alleged accomplice with Ms Catt in the giving of allegedly false evidence at the private prosecution instituted by her arising out of the "rock" incident. He was also effectively her alleged accomplice in relation to the alleged assault with the rock. Her Honour gave the jury a Jones v Dunkel type direction as to the failure of the accused to call Mr Bridge in her case (S/U p31-32). No ground of appeal was taken in 1993 as to the course adopted by her Honour. Mr Bridge said he made himself available to be called at the trial if required having been asked to wait outside the court room in case he was needed. Any evidence he may have given was subject to his right to claim privilege from self-incrimination but I can see no reasonable basis for such a claim in respect of the availability of edibles from the refrigerator. I do not regard his evidence as fresh. Mr Graeme Fellows Mr Fellows gave evidence of events he claimed occurred from about 1993, when he had met Mr Catt and had done some work for him mowing lawns and driving Mr Catt about. He said that on an occasion about one month after he commenced this work, Mr Catt had told him that he had set Ms Catt up for "a big fall". He said Mr Catt had told him, apparently on another occasion but associated with the last-mentioned statement that "they put some tablets in some milk and sent it out to Adrian Newell's farm house and they kept them in a fridge out there….and he said a detective from Taree went out and picked the milk up and took it to a lab to get tested" (H/T p1076). Mr Fellows said that he did not know Ms Catt and had never heard about her trial or what had happened in Taree. Mr Catt according to Mr Fellows also said words to the effect, "What we done it was done so well", and expressed a desire to "work over" Ms Catt's son because "how do you think she feels whilst she Mr Catt according to Mr Fellows also said words to the effect, "What we done it was done so well", and expressed a desire to "work over" Ms Catt's son because "how do you think she feels whilst she's in gaol and her son gets worked over" (H/T p1077). Mr Fellows also gave evidence of a severe physical beating that he had received at the hands of the brother of Mr James Morris, Mr Paul Morris (not called), in the presence of and apparently with at least the tacit approval of Mr Catt. He said that the assault had continued until Mr Catt had intervened saying "that's enough". Mr Fellows explained that he did not report to the police who had been involved because he claimed to have been impliedly threatened by Mr Catt as he and Mr Paul Morris had left Mr Fellows house where the assault allegedly took place (H/T p1078-9). He did claim to have reported the matter to named police officers in about 1999 or 2000, although without nominating the alleged perpetrators (H/T p1080-1). In cross-examination Mr Fellows admitted disliking Mr Catt and conceded that in neither of two relevant affidavits which he had made in May and July 2002 respectively had he referred to the conversations which he alleged took place relating to substances being put in milk. Mr Fellows claimed he was not asked about these matters. To have volunteered what he gave in evidence may have been regarded as inconsistent with his claim not to know of the details of the Roseanne Catt trial and he may not have recognised the significance of what he claims Mr Catt said when making the affidavits. Clearly of course Mr Fellow's credibility is suspect in that he may be motivated by ill-will towards Mr Catt. When placed, however, in the context of other evidence, it brings me to the view that, notwithstanding that Mr Fellow's credit may be subject to attack, the existence of this fresh evidence is sufficiently credible and material to be taken into consideration on the question whether there may have been a miscarriage of justice at least so far as Count 5 is concerned. MR PETER CAESAR AND MS LEANNE CHEERS The evidence of Mr Fellows also gains a degree of support when considered in the different context of other fresh evidence given at the section 12 hearing by Mr Caesar and Ms Cheers as to Mr Thomas on the issue of the collusive arrangement asserted on behalf of Ms Catt at her trial, said to involve both Mr Catt and Det Sgt Thomas, as he then was. Mr Caesar was an insurance loss adjuster when he first met Mr Thomas who was then in the process of resigning from the New South Wales police force. He said that Mr Thomas had moved to Brisbane and commenced working with Mr Caesar for the same firm. He and Mr Thomas had an amicable employment and social relationship at first. During the course of it, Mr Caesar claimed that Mr Thomas had shown him files labelled "New South Wales Police" including one pertaining to Ms Catt (H/T p1565-8). In 1991, after Mr Thomas had returned from Sydney where he had given evidence in the Roseanne Catt trial (he commenced his evidence on 27 June 1991, and the jury returned their verdicts on 11 September 1991), Mr Caesar claimed that Mr Thomas had spoken to him about that case. Mr Thomas had described Ms Catt as the lowest form of a slut and said, "It's common knowledge that I planted the gun" (H/T p1568-9). This of course is more directly relevant to Count 9 rather than Count 5 and is dealt with also in that context later (para. 501). Mr Caesar said that in discussing the Roseanne Catt case with him, Mr Thomas had also described Mr Catt as "a mate". Mr Caesar gave evidence of a workplace dispute between an employee, Ms Cheers and Mr Thomas which had led to litigation. He claimed that he had overheard an argument between Ms Cheers and Mr Thomas during the course of which Mr Thomas said words to the effect that he would "do Leanne in as he did Ms Catt, she was still rotting in gaol in Sydney" (H/T p1578). In cross-examination on the basis of a statement (H.Ex 30) made on 26 July 2001 to a detective sergeant of police then attached to the NSW Crown Solicitor's office, Mr Caesar conceded that Mr Thomas had not used words to the effect, "I planted the gun on her" but had said words to the effect, "There are things you have to do. This sheila was bad, and it had to be done". Mr Caesar nevertheless insisted in evidence before me that Mr Thomas had "numerous times" said words to the effect that he had "planted" a gun on Ms Catt (H/T p1584). In an earlier part of the same statement, H.Ex 30, Mr Caesar is recorded as having said that Mr Thomas had said to him words to the effect that, "It' Mr Caesar nevertheless insisted in evidence before me that Mr Thomas had "numerous times" said words to the effect that he had "planted" a gun on Ms Catt (H/T p1584). In an earlier part of the same statement, H.Ex 30, Mr Caesar is recorded as having said that Mr Thomas had said to him words to the effect that, "It's common knowledge that I planted the gun on the bitch". Notwithstanding any apparent inconsistency, I am satisfied that the statement of 26 July 2001 (H.Ex 30) contains the substance of what Mr Caesar alleged in evidence Mr Thomas had said. Mr Caesar was further cross-examined on a document, H.Ex 7, being a written memorandum by Mr Caesar to Mr Thomas in which Mr Caesar appears clearly enough to be suggesting to Mr Thomas that they should take steps dishonestly to exclude a joint venturer with them in a business enterprise from his money (H/T p1586-7). Mr Caesar was also cross-examined on a file register kept by Mr Thomas. Mr Caesar said that after Mr Thomas had left he had found the register in a communal office, not Mr Thomas' personal office. Mr Caesar agreed that he had provided a Four Corners television programme, in which adverse criticism had been made of Mr Thomas, with material apparently from the file register (H/T p1588). Mr Caesar agreed in cross-examination that he had access to a diary containing details of mutual clients which he had supplied to Ms Catt after her release from prison. He agreed in effect that he would do anything to get back at Mr Thomas. He denied, however, making false allegations against Mr Thomas. Mr Caesar agreed that he had sent material to some of Mr Thomas' clients, samples of which are contained in H.Ex 10 being newspaper clippings of 20 and 21 October 2000 relating to the Four Corners television programme in which Mr Thomas is associated with dishonest and criminal allegations relating to claims of insured persons. He agreed that he had distributed this material "just to get back at" Mr Thomas (H/T p1590). Mr Caesar said that he had been prosecuted for fraud in Queensland at the instigation of Mr Thomas and was ultimately acquitted of these matters (see Pt H.Ex 8). MR PETER THOMAS Mr Thomas agreed in evidence that he had brought with him to Queensland files relating to New South Wales police matters but claimed they were his own files. He agreed that he had a copy of a file relating to Ms Catt and "some associated papers". He said that there had been media coverage of the Roseanne Catt trial and conversations about the trial among office staff in Queensland "on a daily basis". He denied describing Mr Catt as a "mate" as well as the allegations of admissions made to Mr Caesar about planting a gun and other matters relied on by Ms Catt (H/T p179-83). MS LEANNE CHEERS Ms Cheers spoke of difficulties she had had with Mr Thomas and of speaking to him about a claim which she had made for compensation in respect of alleged sexual harassment and unfair dismissal. She gave evidence of speaking to Mr Caesar about the claim after she had initiated it. Mr Thomas had come into the room and said words to the effect that if she proceeded with the sexual harassment case "that he would set me up like he did that bitch" (H/T p2365). Ms Cheers said that on another occasion, or occasions, she had overheard Mr Thomas speak to Mr Caesar about Ms Catt as a person involved in a case in New South Wales and who was in gaol (H/T p2366-7). EVIDENCE OF THE CATT CHILDREN AS TO COUNT 5 The Crown's case at the trial on the question whether Ms Catt had administered Lithium and Rivotril overdoses to Mr Catt was wholly circumstantial. The only suggestion that it may have been the Catt children who put the substances in the milk and orange juice was to the effect that this was left to the jury as an hypothesis consistent with the innocence of Ms Catt to be excluded by the Crown (S/U p192-3). It is clear from the jury's verdict that the jury did exclude any such hypothesis. That the children had done so was never part of the Crown's case. It follows therefore that although the jury rejected the children as being witnesses of truth as to the sexual assault allegations and other matters, that conclusion cannot extend to the evidence at the section 12 hearing that they had, with the connivance and at the direction of Ms Catt, put medications into Mr Catt's liquids. All four of them gave evidence at the section 12 hearing to the effect that Ms Catt, by herself and by directions to them, had been instrumental in administering overdoses of his prescribed medications, Lithium and Rivotril, to Mr Catt principally by putting them in his liquids but also in his prepared meals. It is unnecessary to further canvass the details of this evidence of the children. The Crown submits on the basis of it that it now has an overwhelming case as to Count 5. CONCLUSIONS AS TO CATT CHILDREN'S EVIDENCE ON COUNT 5 Since no jury has been presented with the version each of the four Catt children now gives, there is no jury verdict on this issue which might inhibit me in assessing their credibility on this issue, and either accepting or rejecting their evidence accordingly. The evidence they now give as to Count 5 is not consistent with a jury verdict and it was never part of the Crown's case that they had participated, at the direction of Ms Catt or otherwise, in contaminating Mr Catt's liquids. As to Count 5, I find that I am unable to place any reliance on them as witnesses. I cannot overlook the fact that they have given evidence on oath which has been rejected by two juries. All four of them gave evidence, and persisted in false accounts, which involved most serious allegations against their natural father, at Barry Catt's trial. In addition, to FACS officers, police officers and others, they have given versions out of court designed to bring about his conviction of very serious offences which versions they now swear to be false. Mr Molomby of counsel also submits that when compared with the documentary evidence of the quantities of Lithium and Rivotril dispensed during the relevant period, the evidence of the Catt children becomes objectively suspect. On Mr Molomby's analysis, with which I am in agreement, there was not enough of either substance to account for the expert evidence given as to the quantities required to reach the level of contamination found by the Government Analysts in August 1989 (see also Mr Catt's blood Lithium levels as indicated in Pt H.Ex KKK). If the Crown were now to rely in a trial on the direct evidence of these witnesses as to Count 5, it is at least doubtful whether a warning in terms of s165 of the Evidence Act 1995 would be sufficient to deal with the question of their credibility. A direction that no effect at all should be given to their evidence might be required ( Davies & Cody v The Queen (1937) 57 CLR 170, 183-5). THE SUMMING UP AS TO COUNT 5 Her Honour drew to the attention of the jury that the Crown's case as to Count 5 depended upon evidence of motive and opportunity, which included access to the refrigerator and to the combination of drugs, Lithium and Rivotril. Her Honour directed the jury that, on the evidence, they might find that Ms Catt had access to both drugs and to the milk and orange juice in the refrigerator. Her Honour reminded the jury of the evidence of Det Paget as to the medication in the black handbag, as indicating that as at 24 August 1987, and therefore by inference as at 27-30 July 1987, Ms Catt is likely to have had access to that combination of drugs. Her Honour then canvassed evidence that whilst the liquids in bulk and in the specimen containers given to Dr Sandfield had been tested by the Government Analyst Laboratories for Lithium on 15 August 1989, the Clonazepam test had not been done until 29 August 1989. Her Honour then posed as a rhetorical question for the jury, "What happened between 15 August and 29 August to lead the police to suggest or request that they be reanalysed for the presence of Clonazepam" (S/U p134). In my respectful view the evidence now available does not establish such a separate suggestion or request. Clearly the test for Clonazepam was not done until fourteen days after the test for Lithium but there is no evidence that this was pursuant to a separate and distinct request apart from what came from Det Sgt Thomas to that effect at the section 12 hearing. The initial request to the Newcastle Hospital was for a test for both substances. The note on the reverse side of H.Ex 12 suggests the request to the Government Analytical Laboratories was initially for the testing of both substances (paras. 295-296). Her Honour then said to the jury: "It is a matter for you members of the jury, but you might think that there is only one really coherent explanation for this, and that is that there was something found during the search on 24 August. So you would be entitled to find this sequence of events within the Analyst's Department as constituting quite powerful independent evidence in support of the police version as to the finding of these two bottles during the course of the search Her Honour then said to the jury: "It is a matter for you members of the jury, but you might think that there is only one really coherent explanation for this, and that is that there was something found during the search on 24 August. So you would be entitled to find this sequence of events within the Analyst's Department as constituting quite powerful independent evidence in support of the police version as to the finding of these two bottles during the course of the search" (S/U p134 – emphasis added). Her Honour posed as another rhetorical question for the jury, on the assumption that it was the police, and in particular Det Sgt Thomas, who had put the Lithium and Clonazepam into the liquids before they went to the analyst, "Why did they only request initially that the drugs be analysed for Lithium?" (S/U p134). Her Honour then posed a similar question on the assumption that it was Mr Newell who had put the substances into the liquids and said, "You may think that the fact that there was a later request for analysis which led to the finding of Clonazepam and that there is no suggestion that it was known that Clonazepam was in these liquids – known by anybody other than the person who put the drugs into the liquid that Clonazepam was in there – that this can be taken by you as a significant matter…..You would be entitled to take this as strong evidence supporting the police version that they did, indeed, find both Rivotril and Lithicarb during the course of this search. When you really think of the sequence of events, you might find it difficult to come up with any other really coherent explanation which accounts for the sequence of events so far as the request for analysis and the results of analysis are concerned . That, of course, is entirely a matter for you" (S/U p136 – emphasis added). After an overnight adjournment and at the request of senior counsel for Ms Catt, her Honour posed another possible scenario, namely, that the Rivotril and Clonazepam were not found in the handbag "but somewhere else and Det Paget lied about finding them in the purse. But nevertheless it was close enough for the police to be alerted to the possibility of Clonazepam, and therefore to have the liquids re-analysed some days later" (S/U p150). Her Honour then said, "You may think that what the evidence does do is effectively eliminate Adrian Newell as a person who could have put the drugs into the liquids, at least if he had done so without telling the police. Because the one thing that that scenario means is that on 24 August, the day of the search, the police were not to know that there was Clonazepam in those liquids. Accordingly had it been Adrian Newell who had done it the police were not to know there were two drugs as opposed to the one, during the course of their search. Because nobody knew at that stage, apart from the person who put the drugs into the liquids, that the liquids contained Clonazepam Her Honour then said, "You may think that what the evidence does do is effectively eliminate Adrian Newell as a person who could have put the drugs into the liquids, at least if he had done so without telling the police. Because the one thing that that scenario means is that on 24 August, the day of the search, the police were not to know that there was Clonazepam in those liquids. Accordingly had it been Adrian Newell who had done it the police were not to know there were two drugs as opposed to the one, during the course of their search. Because nobody knew at that stage, apart from the person who put the drugs into the liquids, that the liquids contained Clonazepam" (S/U p150 – emphasis added). As a result of evidence given at the section 12 hearing, however, there is now another reasonable hypothesis not left for the jury's consideration. Mr Newell, on his own evidence, knew before 30 July 1989 of the significance a combination of Lithium Carbonate and Clonazepam might have. Mr Catt said that he kept his medication in the same office as the refrigerator that contained the milk and orange juice. It is clear that Mr Newell, therefore, on entering the office had access to at least Lithium, and if the container of Rivotril was there, and not at 1 Cornwall Street, that medication too. As to Rivotril, if the only container dispensed to Mr Catt was that delivered by Mr Newell to the Crown, Det Paget may have been lying when he told the jury that he had found another container of Rivotril in a black handbag on 24 August 1989 in a drawer in the main bedroom at 1 Cornwall Street (see paras. 323-326). I do not accept Mr Newell's evidence that he found the container of Rivotril at 1 Cornwall Street on 5 September 1989. The evidence does not exclude that the Rivotril may have been kept at the same place as Mr Catt said he was in the habit of keeping his other medication, at 2-8 Cornwall Street. Additionally I find that Mr Newell was motivated in favour of Mr Catt and antagonistically towards Ms Catt. The evidence now raises as reasonably possible the hypothesis that Mr Newell, having both opportunity and motive to put both substances into the liquids, may have done so on or about 30 July 1989, or at any event before he gave the bulk of the liquids to Det Sgt Thomas on 31 July 1989. There is a further reasonable hypothesis now available on the evidence, namely that Det Sgt Thomas, prior to 24 August 1989, was also aware of the significance of finding both Lithium and Rivotril in the possession of Ms Catt. He spoke to Mr Newell on 29 July 1989, Mr Newell already having obtained advice relating to the combination of drugs from Dr Sandfield. He claims to have told Mr Newell on 29 July 1989 to take the liquids from the refrigerator. Having regard to the investigative task on which Mr Newell and Mr Thomas were jointly engaged, I am unable to conclude that Mr Thomas did not know, when the substances were first submitted for analysis on 10 August 1989, of the significance of Lithium and Rivotril in combination. Det Sgt Thomas had also spoken not only to Mr Newell but also to Mr Dickeson to whom the initial request for testing for both substances had been made. Although Mr Dickeson was not called, I find it is likely that he would have made known to Det Sgt Thomas the terms of the request for analysis made by Dr Sandfield since it was to Det Sgt Thomas that the specimen containers were given to take to the government analysts in order that that request might be fully complied with. Even if, however, Det Sgt Thomas did not know about the significance of Lithium and Rivotril in combination before 24 August 1989, there was sufficient time for both he and Det Paget to have concocted a version of the finding of both those medications in a black handbag at 1 Cornwall Street after Mr Sheehy had published the result of his analysis as to Clonazepam and before Det Paget gave evidence at the committal proceedings in May-July 1990. There is evidence that Det Sgt Thomas had a propensity for conduct of this kind. This latter hypothesis would account for the lack of any reference to Lithium or Rivotril in the record of property seized, H.Ex HH, and the lack of any reference to the finding of any such substance in the recorded interview of Ms Catt of 24 August 1989 (Pt H.Ex UUU). It would also account for Det Paget's denial on 12 March 1990 of having searched the main bedroom at 1 Cornwall Street on 24 August 1989 and of having taken possession of a black handbag and medication (H.Ex ZZZZZ, Q&A 92, 133-4)." 151 Davidson ADCJ expressed the following conclusion with respect to count 5: "CONCLUSIONS AS TO COUNT 5 It is likely that Det Sgt Thomas knew on 29 July 1989 that Mr Newell was going to collect from office premises at 2-8 Cornwall Street specimens of Mr Catt's consumables in order that they might be subjected to analysis (see paras. 279-287). Mr Newell's evidence to the effect that he did not tell Det Sgt Thomas what he intended to do on 30 July 1989 at the office premises at 2-8 Cornwall Street is so highly improbable as to be unacceptable and I reject it (see para. 280). It is reasonably possible that on or before 31 July 1989, and probably on 29 July 1989, Mr Newell informed Det Sgt Thomas of the advice of Dr Sandfield to the effect that the erratic behaviour being exhibited by Mr Catt may have been the result of overdoses of Lithium and a drug such as Rivotril in combination. Mr Newell had both a motive and an opportunity to contaminate the substances he removed from Mr Catt's refrigerator on 30 July 1989 before they were submitted for analysis. Mr Newell was motivated by antipathy towards Ms Catt and by sympathy towards Mr Catt to such an extent that he may have himself contaminated the liquids removed by him from Mr Catt's refrigerator on 30 July 1989 before they were submitted for analysis. It is reasonably possible that the request for analysis, of liquids removed by Mr Newell on 30 July 1989, for the presence of both Lithicarb and Clonazepam was made to the Government Analytical Laboratories when the milk and orange juice were delivered to the Laboratories on 10 August 1989. It is reasonably possible that the request for analysis in respect of both substances referred to in para. 454 above was made by or with the knowledge of Det Sgt Thomas, acquired prior to 24 August 1989. Contrary to his sworn evidence to that effect it is reasonably possible that Det Paget may not have found containers of Lithium and Rivotril in a black handbag in a drawer in the main bedroom at 1 Cornwall Street on 24 August 1989. The only container of Rivotril likely to have been dispensed to Mr Catt in existence as at 24 August 1989 was that produced by Mr Newell to Crown prosecuting authorities on 14 May 1991 at the trial of Roseanne Catt (see para. 358). It is reasonably possible that Mr Newell and Mr Catt did not find the container of Rivotril last-mentioned at 1 Cornwall Street as Mr Newell claims. The evidence of both Mr Newell and Mr Catt to the effect that Mr Catt had consumed a mandarine and other consumables from the refrigerator at 2-8 Cornwall Street on 6 August 1989 is not credible and is not accepted by me. The evidence of each of the four Catt children as to Ms Catt putting medication into Mr Catt's food and liquids and as to them doing so at the direction of Ms Catt so lacks credibility that it is not accepted by me." The evidence of each of the four Catt children as to Ms Catt putting medication into Mr Catt's food and liquids and as to them doing so at the direction of Ms Catt so lacks credibility that it is not accepted by me." 152 I have carefully considered the findings and conclusions of Davidson ADCJ as to count 5. To my mind, his Honour's conclusions should be accepted. In particular, having regard to the manner in which her Honour left the issue of Mr Newell's involvement to the jury, the evidence which is now available requires a reconsideration of the jury's verdict on count 5. It is also relevant to the issue of the appellant's credit, which is, of course, relevant to all of the counts having regard to the appellant's allegation of a conspiracy against her. Part 11 - The conspiracy theory and count 9 153 Davidson ADCJ examined count 9, "the pistol", with particular regard to the method of investigation. His Honour ultimately considers the reliability of the Crown evidence. This discussion is in the following terms: "Constable Cottee Const Cottee said at the trial that, having gone to 1 Cornwall Street with the other police on 24 August 1989, she had been directed by Det Sgt Thomas to take the three Catt children then living there to the Taree Police Station where Mr Newell took them into his care. There was an issue as to how long it took her to do this and return to 1 Cornwall Street. In my view nothing turns on that dispute. It was clearly long enough for Det Sgt Thomas to have placed a gun in the en suite vanity drawer, if he did so. Const Cottee said that upon her return, at Det Sgt Thomas' direction, she searched the en suite bathroom off the main bedroom occupied by Ms Catt. In a drawer in the vanity cabinet she found a fully loaded .32 calibre Hopkins and Allen revolver, the subject of Count 9 in the indictment. Ms Roseanne Catt When shown this weapon, Ms Catt's response on 24 August 1989 was to ask whether it was a toy and to state that she had never seen it before (H.Ex 2.3; T/T p1652). Through counsel at the trial her case was that the weapon must have been "planted" there by Det Sgt Thomas. The Pistol On testing, the weapon was found to be in working order. It was said to have been manufactured in about the 1880s. It was not recorded on any official register as having been licensed to any person including Ms Catt as at 24 August 1989 or at all, nor had it been reported as having been stolen (H.Ex 2.5; T/T p2342-6; T.Ex ZZ). It was, however, duly entered in the record of property seized on 24 August 1989 (H.Ex HH). Other evidence relied on by the Crown as to count 9 As well as the direct evidence of the finding of the weapon, the Crown relied upon evidence from a number of witnesses to the effect that prior to 24 August 1989 Ms Catt was either in possession of a handgun or expressed an intention or desire to obtain one. Mr Barry Catt Mr Catt said he saw a Derringer (clearly not the revolver said to have been found) which, before their marriage, Ms Roseanne Annetts (as she then was) showed him at 2 Cowan Road, Taree. A Derringer is a distinctive short-barrelled weapon of large calibre with two barrels mounted one on top of the other (see illustration Macquarie Dictionary 1989 Edn). Mr Catt clearly knows what a Derringer is (H.Ex 2.1; T/T p2545; H/T p764). Ms Suzanne Miller Ms Miller, Mr Catt's sister, said that about a week after the wedding of Ms Catt and Mr Catt in August 1987, Ms Catt said that she had scared Mr Catt with her gun (H.Ex 2.4; T/T p1537). Ms Marie Whalen Ms Whalen at the trial gave evidence that Ms Catt had told her that she was going to Sydney to buy a gun to protect herself (H.Ex 2.1; T/T p2309). This evidence was enlarged upon at the section 12 hearing to the extent that she said that Ms Catt had told her that she had "got herself a gun, a handgun and she showed me. It was in her bag and she said it was to protect herself….she felt she needed it for protection and she'd use it". Ms Whalen described the gun as small with a little brown handle (H.Ex 41, Annexure J, Q&A 57). The statements of Ms Whalen, H.Ex LLLLL, include one in which she refers to a visit to her home by Ms Catt on 19 August 1989 as being the occasion on which Ms Catt had told Ms Whalen that she was going to Sydney to get a gun. It seems to be clear that by 23 August 1989, Ms Catt had still not carried out her stated intention of getting a gun because according to Ms Whalen's statement of 23 August 1989, "Again, today, I was Roseanne's, during conversation she said, 'I'm definitely going to Sydney to get a handgun'" (sic). Ms Whalen makes no mention of Ms Catt showing her a handgun produced from a bag. In cross-examination as to what occurred at Milligan Street on 23 August 1989 in which Ms Whalen referred to a weapon being on the table, she was shown the weapon allegedly found by the police, T.Ex HH, and gave no indication of having recognised it as any weapon produced to her by Ms Catt from a handbag (H.Ex 2.1; T/T p2396, 2440-5). As already indicated, I do not regard Ms Whalen as a reliable witness (para. 224). Mr Barry O'Brien Mr O'Brien said that during a conversation with both Ms and Mr Catt which appears to have been towards the end of 1988, Ms Catt had said that she possessed an automatic rifle and a Derringer. Ms Beverley Lyons Ms Lyons said that in May 1987, Ms Catt had told her that she carried a gun for her protection against a couple of police at Taree who she "could not get on my side". Ms Barbara Chapman Ms Chapman, without objection, gave evidence at the section 12 hearing which she did not give at the trial. She said she had worked for Ms Catt as a housekeeper at 1 Cornwall Street prior to 24 August 1989, having cleaned the house on three occasions. On the second occasion she said she had gone into the en suite bathroom on a date that she could not specify. She said that when Ms Catt had opened a drawer she saw a gun in it. Ms Chapman described it as "a very small handgun". She said that she could not recall the colour but there was a piece of pearl or pearlised material in the butt of the gun which is consistent with the appearance of T.Ex HH. Ms Chapman said that the en suite was reached through a walk-in wardrobe. She was shown three photographs, H.Ex JJ, Nos 20, 65 and 70, taken by the police on 24 August 1989 which depicts the en suite from the main bedroom at 1 Cornwall Street being approached directly from it and not through a walk-in wardrobe. Ms Chapman said that that was not the en suite of which she spoke. Ms Chapman was also shown the photograph H.Ex BB No. 7 which is said to include the handgun found by the police in the en suite. She gave evidence that there was nothing in the photograph which she recognised, although the weapon depicted in it fits the description she gave. Mr Stephen Foster Mr Foster is the husband of Ms Chapman's stepmother. He said he had known Ms Catt from about 1985 until the early 1990s. He said he had done work as a motor mechanic for Mr Catt. Prior to 24 August 1989, Ms Catt had come to his business premises numerous times to visit his wife, Julie. On one occasion, on a date he was unable to specify, she had taken from her handbag or shoulder bag a small calibre pistol. He said it was somewhere in the region of .25-32 calibre and of silvery colour. He said it was a semi-automatic, i.e. not a revolver as in T.Ex HH. Mr Foster was familiar with firearms and said it was "definitely not a revolver but a pistol" which he had seen. He gave a statement to the police on or about 23 January 2003 (H/T p1157-64). Mr Christopher Catt Christopher Catt in his affidavit of 13 March 1993 (H.Ex 23, Q&A 41-2) said, "I never saw a pistol, but I had seen a gun". Although at the Roseanne Catt trial he said it belonged to Mr Catt, he swore in his affidavit that it belonged to Ms Catt. On a 60 Minutes television programme which went to air on 28 October 2001, however, he is recorded as having said, "I saw a pistol or a part of one. It was covered up in the drawers of the en suite….I went in there one morning and she wasn't in there….looking for money, and I opened up the drawer and I just saw a handle of what looked fake but I don't know…..I saw the handle of a pistol" (H.Ex 11 p7). On a 60 Minutes television programme which went to air on 28 October 2001, however, he is recorded as having said, "I saw a pistol or a part of one. It was covered up in the drawers of the en suite….I went in there one morning and she wasn't in there….looking for money, and I opened up the drawer and I just saw a handle of what looked fake but I don't know…..I saw the handle of a pistol" (H.Ex 11 p7). In the statement which he gave to the police assisting the Crown at the section 12 hearing (H.Ex 21) he said that when he had opened a drawer in the bathroom off Ms Catt's bedroom he had seen what he now thought was a handgun but which at the time he thought was "just a cap gun" (H.Ex 21, Q&A 217-226). Christopher Catt said that he had been to Mr Newell's house at a time apparently after the trial of Ms Catt. Mr Newell had shown him a number of items which he claimed he had "got back from the courthouse". This included a photograph. He had told Mr Newell that it depicted what he had seen and asked Mr Newell whether it was, "a cap gun". Mr Newell had responded that it was not (H/T p1337-40). Ms Sharon Catt Sharon Catt said at the trial that she had complete freedom to come and go in Ms Catt's bedroom including the en suite. She said she had opened the drawers of the vanity cabinet to take things out and put things away. She said she had never seen a pistol, real or toy, at 1 Cornwall Street (H.Ex 2.8; T/T p3096-96A). In her affidavit made on 24 March 1993, Sharon Catt verified the accuracy of a statement made by her on 22 March 1993. She had stated at the trial that she had seen a rifle and had claimed that it was Mr Catt's. However, she now claims that was untrue and that it was Ms Catt's rifle. In her pre-section 12 hearing recorded interview with the police (H.Ex 27), Sharon Catt referred to Ms Catt having a rifle and "a little pistol". She said Ms Catt produced a pistol at Mr Les O'Brien's property. She said that Ms Catt had said, "She was going to get a pistol. That she had a pistol. That she had a pistol that she put in her handbag and she'd use it if she needed to" (sic) (Q&A 238-249). Sharon Catt gave evidence of a conversation which she said took place between Ms Catt and Mr Vernon Taylor at 1 Cornwall Street. This refers to the circumstances relied upon by the Crown in relation to Count 7 and may be taken as having occurred in about June 1989. She said that Ms Catt had asked Mr Vernon Taylor inter alia whether he could get her a pistol. Her attention was drawn to the fact that she had previously said that Ms Catt already had a pistol. Sharon Catt responded incongruously, "It was the same pistol" (H/T p1458-60). Ms Julie Catt Julie Catt said, "We were told" by Ms Catt "not to say anything about her little gun". She told the police at the pre-section 12 hearing interview that she had seen a gun in what she described as a "dresser drawer". She states it was small "like a little pistoly gun". She drew a sketch of what she said she had seen. The sketch is Annexure B to her recorded interview with the police, H.Ex 18. Any resemblance to either the revolver said to have been found or to a Derringer is conjectural. At the section 12 hearing Julie Catt said that the drawer in which she claims to have seen the gun was of a dressing table near the bed in Ms Catt's bedroom, not in the en suite bathroom. She too said that the bedroom was not always kept locked (H/T p1263-5). She also referred to having seen Ms Catt shooting with such a gun on a farm (H/T p1271). Mr Tony Catt Tony Catt was not called at the Roseanne Catt trial. Although he is recorded as having taken part in the 60 Minutes television programme (H.Ex 11) he makes no mention of a gun. He said he had not seen a gun in the house but spoke of going to a farm where Ms Catt would use a .22 weapon and shotguns, "and a little hand pistol" to shoot at cans (H.Ex 19, Q&A 119-159). COUNT 9: EVIDENCE AT THE SECTION 12 HEARING IN THE CASE FOR MS ROSEANNE CATT Mr Douglas Annetts Mr Annetts was not called at the trial. Mr Catt had said that the "Derringer" (so described although he nevertheless identified the pistol, T.Ex HH), was shown to him by Ms Roseanne Annetts (H.Ex 2.1; T/T p167), in the presence of Mr Annetts. At the section 12 hearing Mr Annetts said that he had never seen Ms Catt with a pistol or revolver of any kind. Although contacted by the police after the arrest of Ms Catt he said he was never asked to make a statement nor was he asked to give evidence. Both counsel for Ms Catt submitted that the failure of the police to obtain a statement from Mr Annetts was "a deliberate choice to deprive the defence of vital evidence". A statement ought clearly to have been sought by the police and made available to the defence. It was open to legal representatives for Ms Catt to have obtained a statement from Mr Annetts, however. His evidence is not in my view fresh, there being no explanation for the failure to call him at the trial. Mr Peter Bridge Mr Bridge said that he had never seen Ms Catt in possession of a gun; nor was he aware of any cap guns in the house (H/T p1652, 1674). Ms Julieanne Bridge Ms Bridge also said that she had never seen her mother in possession of a gun. She said her mother had never mentioned a pistol to her (H/T p1622, 1631-2). Ms Faye Klarenbeek Ms Klarenbeek, one of Ms Catt's sisters, said she had never seen Ms Catt with a gun and spoke of their brother, Keith, having been accidentally shot, as supporting the unlikelihood that Ms Catt would have a firearm in her possession. She spoke of Ms Catt having a dislike for guns (H/T p1715-6, 1725). Ms Joy McGregor Ms McGregor, also Ms Catt's sister, said she had never seen Ms Catt in possession of a firearm. She said she had never seen any guns at 2 Cowan Road whilst Ms Catt lived there with Mr Annetts (H/T p1735, 1740-1). Mr Annetts, however, said he did have sporting rifles and shotguns locked in a cabinet whilst he lived at Cowan Road with Ms Catt (H/T p1771). I do not regard the evidence of Mr Peter and Ms Julieanne Bridge, Ms Klarenbeek and Ms McGregor as being fresh. These witnesses could have been called at the trial subject to some reservations as to Mr Bridge in light of his status as an alleged accomplice awaiting trial. Mr Peter Caesar and Ms Leanne Cheers The evidence of Mr Caesar and Ms Cheers is clearly fresh. It is evidence not only of a continuing harbouring of ill-will by Mr Thomas against Ms Catt but more specifically of his having admitted to Mr Caesar, soon after he gave evidence at Roseanne Catt's trial, that he had "planted a gun" on her. (the evidence is more fully dealt with at paras. 403-414). If the jury had entertained as a reasonable possibility that Mr Thomas may have said words to that effect to Mr Caesar, it may have resulted in her acquittal of Count 9. It may also have had repercussions favourable to Ms Catt as to the other counts. Ms Roseanne Catt Ms Catt denied that she had ever possessed a handgun as deposed to by various witnesses and also denied conversations indicative of an intention that she should obtain one. Nothwithstanding directions given as to the necessity to consider each count separately, an adverse finding as to Count 9 is likely to have reflected on her credit generally and hence on her substantive response to the Crown's case. I accept the submissions of Mr Molomby in this respect. THE PERIPATETIC ALCOHOL Both of counsel for Ms Catt relied on Const Cottee's evidence that when she returned to 1 Cornwall Street, having delivered the Catt children to Taree Police Station, she was directed by Det Sgt Thomas to search the en suite, the implication being that it had not yet been entered by other police. Const Cottee said that she had found bottles of alcohol underneath the sink. H.Ex JJ, No.s 20, 65 and 70, are photographs showing a chest of drawers in the main bedroom. In photograph No. 20, all of these drawers are closed and on top of the chest of drawers, there are depicted a number of items including bottles and glass containers. Det Parkes agreed that Photograph No. 20 was an "establishing shot" i.e. indicating the position of items before the search of the chest of drawers commenced. Photograph No. 65 shows a male police officer searching the bottom drawer of the set of three (H/T p611-2). H.Ex JJ, No.s 20, 65 and 70, are photographs showing a chest of drawers in the main bedroom. In photograph No. 20, all of these drawers are closed and on top of the chest of drawers, there are depicted a number of items including bottles and glass containers. Det Parkes agreed that Photograph No. 20 was an "establishing shot" i.e. indicating the position of items before the search of the chest of drawers commenced. Photograph No. 65 shows a male police officer searching the bottom drawer of the set of three (H/T p611-2). A comparison of No. 20 and No. 65 shows that a number of items had been moved between the taking of these photographs. Most importantly, three bottles of alcohol, two marked "Toro" and one marked "Black Douglas" depicted in No. 20, are not depicted in No. 65. The inference counsel for Ms Catt seek to have drawn is that the three bottles of liquor were removed from the top of the chest of drawers between the taking of the establishing shot No. 20 and the commencement of the search of the en suite by Const Cottee and put under the sink, indicating that one or more police officers had gone into the en suite before Const Cottee. These submissions depend on the assumption that the liquor bottles found under the sink in the en suite were the three which are depicted in photograph No. 20. At the section 12 hearing, Const Cottee said that in searching the en suite under the sink she saw three bottles of alcohol. She could not remember precisely what sort of alcohol the bottles indicated. She was shown a photograph, apparently Photograph No. 20, and said that the bottles depicted on the top of the chest of drawers were those that she had seen under the sink. She said that she could not recall if she herself took them out but she did recall that they were put on top of the chest of drawers and the scientific officer took a photograph of them (H/T p515). If Photograph 20 is, as Det Parkes deposed, an establishing shot indicating the position of items on the chest of drawers before the search commenced, and Const Cottee is accurate in her evidence that the bottles depicted in Photograph 20 were what was taken from under the sink, then there is obvious merit in the submission of counsel for the appellant. The bottles could only have got there by the act of a police officer engaged in the search. There is, however, no other photograph in evidence before me indicating the later return of the bottles to the top of the chest of drawers. The only photograph depicting the bottles on top of the drawers in evidence is Photograph 20. If that is the photograph which Const Cottee says was taken, this is contrary to the evidence of Det Parkes and if accepted the submission of counsel is not soundly based. The evidence is too ambiguous to draw any firm conclusion. In any event it indicates no possible explanation why a police officer engaged in a search such as this would remove bottles from the top of the chest of drawers and place them under the sink in the en suite." Davidson ADCJ's conclusions with respect to count 9 154 The conclusions of Davidson ADCJ in relation to count 9 were expressed in the following terms: "CONCLUSIONS AS TO COUNT 9 It was incumbant upon the Crown if it was to succeed on Count 9 to prove that it was the revolver described and charged in the indictment which was in possession of Ms Catt on 24 August 1989, and not some other handgun, such as a Derringer, on that or some earlier date. Mr Catt's use of the expression "Derringer" and his accurate description of a pistol corresponding to that type cannot be reconciled with the revolver said to have been found by the police. Yet he purported to identify the revolver as the Derringer he had seen in Cowan Road. Therefore, his evidence is unacceptable. Mr Barry O'Brien's evidence in which he also asserts that Ms Catt spoke of a Derringer is not supportive of the Crown's case that a revolver, T.Ex HH, was found. I accept the evidence of Mr Foster, to the effect that the handgun which he saw was not the one charged in Count 9. Similarly, the weapon sketched by Julie Catt cannot be regarded as descriptive of the weapon depicted in photographs in evidence as being the weapon found. As to Ms Chapman, her evidence is not conclusive that there was a revolver at 1 Cornwall Street on 24 August 1989. As to the evidence of the Catt children, leaving aside the evidence of Tony Catt who saw no handgun in the house, there is no jury finding in relation to it which might inhibit any assessment of its reliability. Having regard to the fact that two juries have not seen fit to act upon their evidence in other respects especially the sexual assault allegations, I do not accept their evidence as to Count 9. The absence of Const Cottee from the house with the children gave Det Sgt Thomas an opportunity to place the revolver in the drawer. The lack of any traceable antecedents of that weapon is a factor leaving in my mind a feeling of unease when considered in the context of the whole of the evidence now available as to Count 9. There is evidence to support the inference that Mr Thomas had a motive for securing the conviction of Ms Catt by means which might include the manufacture or arranging for the giving of evidence known to be untrue or not believed to be true, and that he had a propensity for so acting. The evidence of Mr Caesar as to Mr Thomas' alleged admission that he had "planted a gun" on Ms Catt is fresh and, is capable of acceptance although from a witness whose credit is under attack. It is of substantial materiality. There is a reasonable possibility that if Mr Caesar's evidence had been before the jury, supported as it was to an extent by that of Ms Leanne Cheers, the verdict, at least as to Count 9, may have been different, with a real possibility of repercussions favourable to Ms Catt as to other counts. Summary of Davidson ADCJ's findings in relation to counts 5 and 9 and the police investigation. 155 When providing a summary of his report, Davidson ADCJ set out his conclusions with respect to the general police investigation and to counts 5 and 9 in particular. His Honour's findings raise significant questions in relation to both counts and it is useful to reproduce them for consideration in the resolution of this appeal. I am satisfied that this Court should accept his Honour's conclusions. "COUNT 5: LITHIUM/RIVOTRIL (SEE PARAS263-460) It is likely that Det Sgt Thomas knew on 29 July 1989 that Mr Newell was going to collect from office premises at 2-8 Cornwall Street specimens of Mr Catt's consumables in order that they might be subjected to analysis (see paras. 279-287). Mr Newell's evidence to the effect that he did not tell Det Sgt Thomas what he intended to do on 30 July 1989 at the office premises at 2-8 Cornwall Street is rejected (see para. 285). It is likely that on or before 31 July 1989, and probably on 29 July 1989, Mr Newell informed Det Sgt Thomas of the advice of Dr Sandfield to the effect that the erratic behaviour being exhibited by Mr Catt may have been the result of overdoses of Lithium and a drug such as Rivotril in combination (see paras. 273-288). Mr Newell had both a motive and an opportunity to contaminate the substances he removed from Mr Catt's refrigerator on 30 July 1989 before they were submitted for analysis. Mr Newell was motivated by antipathy towards Ms Catt and by sympathy towards Mr Catt to such an extent that he may have himself contaminated the liquids removed by him from Mr Catt's refrigerator on 30 July 1989 before they were submitted for analysis. It is likely that the request for analysis for the presence of both Lithicarb and Clonazepam was made to the Government Analytical Laboratories when the milk and orange juice were delivered to the Laboratories on 10 August 1989 (see paras. 311-322). It is likely that the request for analysis in respect of both substances referred to in para. 44 above was made by or with the knowledge of Det Sgt Thomas prior to 24 August 1989 (see paras. 311-322). Contrary to his sworn evidence to that effect, there is a reasonable possibility that Det Paget may not have found containers of Lithium and Rivotril in a black handbag in a drawer in the main bedroom at 1 Cornwall Street on 24 August 1989 (see paras. 297-306; 311-344; 456). It is reasonably possible that the only container of Rivotril dispensed to Mr Catt in existence as at 24 August 1989 was that produced by Mr Newell to Crown prosecuting authorities on 14 May 1991 at the trial of Roseanne Catt (see paras. 297-306; 358-371; 457-458). It is reasonably possible that Mr Newell and Mr Catt did not find the container of Rivotril last-mentioned at 1 Cornwall Street on 5 September 1989 as Mr Newell claims (see paras. 297-306; 358-371; 457-458). The evidence of both Mr Newell and Mr Catt to the effect that Mr Catt had a mandarine and other consumables from the refrigerator at 2-8 Cornwall Street on 6 August 1989 is not credible and is not accepted by me (see paras. 372-382). The evidence of each of the four Catt children as to Ms Catt putting medication into Mr Catt's food and liquids and as to them doing so at the direction of Ms Catt lacks credibility and is not accepted by me (para. 460). The evidence of each of the four Catt children as to Ms Catt putting medication into Mr Catt's food and liquids and as to them doing so at the direction of Ms Catt lacks credibility and is not accepted by me (para. 460). COUNT 9: THE UNLICENSED PISTOL (SEE PARAS. 461-520) Det Sgt Thomas had an opportunity to place the revolver charged in Count 9 in a drawer in the en suite vanity of the main bedroom at 1 Cornwall Street on 24 August 1989 (see para. 461). It is reasonably possible that Det Sgt Thomas had an improper motive for securing the conviction of Ms Catt and of doing so by means which might include the giving, or procuring the giving of evidence known to be untrue or not believed to be true (Ch XI). There is fresh evidence to support the conclusion that Det Sgt Thomas had a propensity to act in the way referred to in para. 52 above (see paras. 623-688). There is fresh evidence to support the conclusion that Det Sgt Thomas may have put the revolver in the drawer where it was found by Const Cottee on 24 August 1989 in order to incriminate Ms Catt (see paras. 501-502; 512-520). OTHER ASPECTS OF THE POLICE INVESTIGATION (SEE PARAS. 521-688) The use of 27 Milligan Street, Taree, for the purposes of taking statements of potential witnesses in the investigation of Ms Roseanne Catt was inappropriate (see paras. 521-524). The failure to charge any person on the basis of evidence then available with any offence arising out of the alleged breaking and entering of the house of Mr Bridge on 15 September 1989 has not been adequately explained (see paras. 525-542). There is evidence to support the inference that Det Sgt Thomas may have improperly used his seniority and influence to prevent the proper investigation and the charging of any person with participation in the alleged offence referred to in para. 56 above (paras. 525-542). On 24 August 1989, Det Sgt Thomas seized or supervised the seizure of property in purported compliance with a search warrant which did not authorise those seizures. He subsequently disposed of some of that property otherwise than in accordance with law. There is evidence to support the inference that he did so in disregard of his duties as a police officer and was acting in abuse of his powers (see paras. 543-572). There is evidence to support the conclusion that Det Sgt Thomas abused his powers by having Ms Catt charged with breaches of bail conditions on no or inadequate evidence and for improper purposes (see paras. 573-592). There is evidence to support the conclusion that Det Sgt Thomas, contrary to the instructions of a superior and having been judicially criticised for lack of objectivity as an investigator, improperly continued to take part in the investigation of charges against Ms Catt and in the preparation of the prosecution case as to those charges (see paras. 593-598). Det Sgt Thomas may have abused his powers and responsibilities as such in the making of allegations to the Independent Commission Against Corruption on the basis of no or inadequate evidence (see paras. 599-608). There is fresh evidence which, when considered with evidence given or available to be given at the trial of Roseanne Catt, supports the conclusion that Det Sgt Thomas may have used improper methods which were calculated to induce information or evidence to be given by potential witnesses, regardless of its truth, and that in doing so Det Sgt Thomas was motivated by bias against Ms Catt (see paras. 609-688). There is fresh evidence to support the conclusion that Det Sgt Thomas may have offered an inducement to Ms Crista Van der Merwe to give evidence which was false or not believed to be true in order to secure the conviction of Mr Ramon Bracamonte of a criminal offence (see paras. 639-662). There is fresh evidence to support the conclusion that Det Sgt Thomas may have given false evidence before a Magistrate in relation to the investigation of Mr Ramon Bracamonte and Ms Crista Van der Merwe (see paras. 663-671). There is fresh evidence to support the conclusion that Mr Thomas, as an insurance investigator, may have offered a monetary bribe to a potential witness to give evidence which was false or not believed to be true in relation to the investigation of one Ms Margaret Nagy in connection with a fire (see paras. 672-688). Part 12 - Should the convictions be quashed? 156 I have already related Davidson ADCJ's findings in relation to each count when separately considered. In relation to counts 5 and 9 fresh evidence has been tendered which his Honour concludes leads to the conclusion that the convictions in relation to those counts must be quashed. With respect to counts 1, 2, 3, 4, 6 and 7 Davidson ADCJ expressed the following general conclusions: "COUNTS 1, 2, 3, 4, 6 AND 7 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. 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. 173 The Crown case at the trial on these counts depended on the evidence of Mr Catt, Mr Warwick and Mr Golds. At the private prosecution Mr Golds gave evidence in support of the appellant but changed his account of events by the time of her trial. He said that in giving the changed account at both the committal proceedings and at the trial he was aware that he could be charged with perjury. Mr Golds said he gave his first and incorrect version of events out of a fear that if he did not the appellant would carry out her threat that he would lose his job with the smash repair firm. 174 Evidence was given at the Section 12 hearing that Mr Golds had told Mr Bridges that he had changed his evidence because he was scared of Det 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 is no explanation as to why the issue was not raised and if necessary appropriate evidence called. 175 Mr Golds was not extended an immunity from prosecution for perjury nor given any other undertaking before giving evidence for the Crown. 176 Evidence for the defence was given at the trial by the Catt children - Christopher, Sharon and Julie. Each of them has recanted and now gives a version consistent with Mr Golds and with the account of Mr Catts and Mr Warwick. Accordingly, the only evidence to the contrary of the Crown case is that of the appellant which the jury rejected at the trial. The present evidence of the Catt children is fresh evidence. 177 There is no doubt that the evidence admitted by Davidson ADCJ as to the method of operation of Det Sgt Thomas indicates a propensity in him to use improper methods of investigation. Although there is no fresh evidence that this occurred in relation particularly to Mr Golds, the evidence was available at the trial, there is significant fresh evidence which is consistent with that propensity, which is now available. To my mind, that fresh evidence is such that a jury may have taken a significantly more adverse view of Det Sgt Thomas' activities and of his influence on the evidence of witnesses called by the Crown. 178 In her Honour's summing up Mathews J dealt extensively with the evidence of Mr Golds. Her Honour cautioned the jury about accepting his evidence, he being in the position of an accomplice of the appellant. Furthermore, apart from his status as an accomplice her Honour drew attention to the fact that Mr Golds had changed his version of the events. 179 In relation to those matters her Honour said: "I think that is all I need say except this, that quite apart from any status which Shane Golds might have as an accomplice, there is another reason for subjecting his evidence to special scrutiny, and it is simply this: that on his own version he has previously given an entirely different account, not only in his statement to Mr Hook, but much more significantly in sworn evidence in other court proceedings. Where you have somebody who has got into the witness box and sworn on oath on a previous occasion to one version, and now swears on oath to another one, you must, of necessity, have some doubt as to which version is the correct one. Well, of course, that brings me to his explanation for, first of all, giving his previous evidence and, secondly, changing it. As to what he did say then, I will go into this briefly only, because it has very limited use in this trial. And that, in turn, will go directly to the version of this incident given by Mrs Catt herself and the three children. Shane Golds, of course, said at that time precisely what you have in his statement made to Mr Hook and in the evidence which he gave in those proceedings. His explanation for what he now says was wrong at that time, was initially given in his examination in chief. He said that after the incident on 2 May, Roseanne Catt drove them all to the police station to report the matter, and then to a doctor's surgery where Roseanne Catt and Peter Bridge saw the doctor. On the way, the accused told them all that they were to say that Mary Warwick was abusive, and it was she who had hit Barry Catt over the head with the rock. He said that after being at the doctor's surgery they returned to Cornwall St to the main bedroom, and then he said, (page 770): 'Roseanne said to everyone, 'When you are going to give a statement to Teddy Hook,' and she said to put in the statement that it was Mary that hit Barry over the head with the rock; she went to hit me but I ducked and she hit Mary and that Mary was getting abusive at her.' Shane Golds said that she said to him, 'If you don't tell the story the way I told you, you will lose your job.' He said that this threat was repeated a few times to him before 21 May when he gave that statement to Mr Hook. Well, you have got that statement so I do not need to remind you of it. It basically gives the same version that was given here by Mrs Catt and her witnesses. He was cross examined at length by Mr O'Loughlin about this previous statement, and the fact that it was part true and part lies, and about what parts of it he said Roseanne Catt had specifically prompted him to say and what parts had been his own invention. He said that in the latter category was the fact that Bary Catt had removed the keys from the ignition, and the comment that Mr O'Loughlin makes is that it is extraordinary that his invention is the same as her version. He was also cross examined about the fact that he was an apprentice, and that it would not be easy for his employment to be terminated, but he said he was still in fear for his job. He left his employment with Cattys Body Repairs in about October/November 1988. So, by the time he gave his evidence in July 1989 he could not have had any fears for his employment. His explanation for giving that evidence was that he was frightened of the accused. He said that back in late 1987, she had asked him if he had wanted money to kill Barry Catt, or if he knew anyone else who might, and that this had made him extremely apprehensive about her. Of course, he was cross examined that this was a sheer fabrication and that he had never mentioned it before. He said that on the morning of that court case on 3 July 1989, they had all met at Roseanne Catt's home. She showed their statements to them and told them, 'Stick with this story and we'll be right. We'll win the case.' Hence it is that he went and gave that evidence as in exhibit 8. Of course, he was cross examined before you about this; about the fact that on his own version, his own admission, he was at that time perjuring himself, although he did say here that when he gave his evidence then, he did not realise it was a criminal offence. He realises it now. He was also cross examined that he never told anybody that he was giving a false version at Roseanne Catt's behest. He did not tell his girlfriend, Sonia, or any member of his family. Mr O'Loughlin referred to this yesterday, in a slightly misleading way, and I think I should put it right. Mr O'Loughlin said that Shane Golds had told his girlfriend, Sonia, Roseanne Catt's version of this incident. That is not the evidence before you. The evidence before you is a negative one, not a positive one. He did not tell her that he had been asked to lie. It is not that he gave the Roseanne Catt version, but he did not tell her that he had been asked to lie and that he had gone along with it. In relation to those exhibits, eight and nine. I direct you again that they are not evidence of the facts set out therein. They are simply evidence of the fact that Shane Golds previously said something entirely different from what he has said here. They are not available to prove the truth of what they say, but simply to reflect seriously upon his credibility as a witness here before you. The same applies in relation to all prior statements of witnesses which have been tendered into evidence. I think I will say it once again - I have said it many times during the course of the trial, and I will say it now for the last time, and no longer continue to remind you: all prior statements of witnesses are allowed into evidence either for the purpose of attacking the credibility of the witness in the witness box, if the statement is tendered by the opposing party, or to bolster the credibility of the witness in the witness box which is being attacked under cross examination, if the statement is tendered by the party who called the witness. In each case the statement is only available for use as reflecting on the witness's credibility. You cannot look at it and say: this statement says A and B and therefore that is additional proof of A and B. You cannot do that. You can only look at it as reflecting on what the witness said here. Notwithstanding the warnings I gave you about Shane Golds, you may think that in one respect he was an important witness, because he was the only one who, as it were, has switched sides. The others have remained true to their original versions. So, a very important question - and you may think this is the importance of Shane Golds - why did he change sides? It seems that it happened in 1989. He was collected from work he said by Mr Thomas and Carl Paget and taken to Milligan St, and on the way Detective Sergeant Thomas, as he then was, said to him that they wanted to talk to him about Roseanne Catt and Barry Catt - that if he, Shane Golds, had been telling lies he could be charged with perjury. Shane Golds said that at that stage he wanted to get it off his chest, and so he told them the truth. Once there at the house at Chatham he said he made a statement which was typed out in which he told the true story. It was not until after he had done that, that he was shown Barry Catt's statement about the rock incident. Well, if you were to accept that that was true, that he did not see Barry Catt's statement until after he had made his own, then that would be powerful confirmation of his version; because unless it had happened that way, he would not know of the fabricated version Barry Catt had made, if he had not yet seen his statement. But of course this in a sense depends on the credibility of Shane Golds and the police officers. It was suggested to Shane Golds in his cross examination that he had been procured by the police to retract his earlier evidence through threats of being prosecuted for perjury if he did not; he denied this. He denied it entirely, and you must remember that, and it is something I must say to you as a general proposition. A suggestion which is put to a witness in cross-examination but not accepted by that witness, is no evidence in support of the suggestion. It is not for counsel to make suggestions to witnesses and then tell you that a matter is evidence; it is for the witness to give evidence. If a suggestion is accepted by the witness, then it certainly becomes a positive matter of evidence, because it comes from the witness. But if a suggestion is made to any witness in cross examination and not accepted, then you really must ignore it. Forget it, because it is not evidence of anything. Absolutely no evidence of anything, and there has been you may think an enormous amount of material in this trial which falls into precisely that category. You must remember that warning; and, as I said, if you are in doubt on any part of it then please do not rely on memory; send back in and we will ensure that you are reminded of the precise evidence which has been given. Because these matters are too important for them to go according to just memories, after such a long time. Shane Golds denied that he had been threatened of being prosecuted for perjury if he did not retract his statement. He said that both Mr Thomas and also the police prosecutor at Roseanne Catt's committal had both told him that he could yet be charged with perjury, notwithstanding that he gave the new version of events; and indeed that the Crown Prosecutor here in this trial, in these proceedings, also told him the same. Nevertheless he said that he wanted now to get it off his chest. He said, 'I done something wrong, why not admit it?' Well, of course, that is a matter for you." 180 In his report Davidson ADCJ dealt with the position as his Honour saw it in relation to the evidence in respect of counts 1 and 2 in the following terms: "The Section 12 Hearing: The Factual Issues The major body of evidence relating to the rock incident was given by the Catt children – Christopher, Sharon and Julie. Each of them completely recanted and the versions they now give are consistent with that now given by Mr Golds. This is also consistent with what I take to be implicit in the jury's verdict that the previous versions they had given were at the instigation of Ms Catt, hence the submission of the Crown that in relation to this and other charges it's strong case has become "overwhelming". Conclusions as to Mr Shane Golds The most important factual issue which arises for determination in relation to Counts 1 and 2 relates to what has emerged as fresh evidence as to Mr Thomas' alleged misconduct and alleged propensity as a serving police officer in the New South Wales Police and later as an insurance investigator, to bring improper and sometimes unlawful pressure to bear on potential witnesses. To what extent might this have affected the outcome of the deliberations of the jury as to Counts 1 and 2 had that evidence been given at the trial and particularly as to the revised version given by Mr Golds? This may be thought to be a question for overall evaluation by the Court of Criminal Appeal in dealing with the "unreasonable and cannot be supported" ground of appeal. If it is to be regarded as a matter for my determination as a "factual issue" I offer the following: On the one hand there is fresh evidence which not only supports the learned trial judge's observations to the jury as to Mr Thomas' lack of objectivity but which also tends to support the conclusion that he had a propensity to use, and inferentially may have used, improper methods to obtain evidence which may be false. I have already indicated my conclusions as to this in the case o If it is to be regarded as a matter for my determination as a "factual issue" I offer the following: On the one hand there is fresh evidence which not only supports the learned trial judge's observations to the jury as to Mr Thomas' lack of objectivity but which also tends to support the conclusion that he had a propensity to use, and inferentially may have used, improper methods to obtain evidence which may be false. I have already indicated my conclusions as to this in the case of Ms Whalen (paras. 141-229); Mr Bracamonte and Ms Van der Merwe (paras. 639-662), and Ms Nagy and Ms Hart (paras. 672-688). There is also to be considered evidence of his employing the technique of the veiled threat sometimes in a half serious manner towards potential witnesses (see paras. 609-622). His alleged admissions to Mr Caesar (see paras. 403-419), particularly relating to the "planting" of a pistol on Ms Catt, is also inferentially relevant to the issue whether pressure may have been applied to Mr Golds as expressive of a "conviction by any means" attitude. As against this, however, there is the direct evidence now given by the Catt children which is in substantial conformity with the later version of the rock incident given by Mr Golds. Consistently with the approach which I have adopted, the fact that the version now given by the Catt children is essentially that reached by the jury, which necessarily involved a rejection beyond reasonable doubt of the pro Ms Catt versions previously given by the Catt children and on the basis that she had applied pressure to them, must weigh heavily in favour of the view that the Crown may rely on their evidence as to Counts 1 and 2, although from an otherwise unreliable source. A similar set of conclusions may be reached as to the evidence of Mr Golds. On the other hand, as to Mr Golds' evidence, regard must be had to the limited range of other evidence which the jury had for consideration. There was not before them, for example, the evidence relating to the Bracamonte/Van der Merwe matter, of Ms Nagy, Ms Hart, Ms Cheers and Mr Caesar. The jury could not evaluate within that context the possible influence of Det Sgt Thomas upon Mr Golds when he was taken from his place of employment to 27 Milligan Street on 23 August 1989 and then emerged having given a version diametrically opposed to that to which he had deposed in the private prosecution of Mr Catt at the Taree Local Court. Regard must also be had to whether pressure Mr Golds claimed to have had exerted on him by Ms Catt as at 3 July 1989 could have had any affect by the time he gave that evidence in the Local Court. On his own version, Ms Catt had not up until then put him in fear by asking him, in effect, if he wanted money to kill Mr Catt. Nor could his employment have been in jeopardy since he had already left the employment of Mr Catt when he gave evidence at the Local Court. Another important consideration is that when he did give evidence at the trial of Roseanne Catt, Mr Golds had not been relieved from the pressure of a belief that he might still be prosecuted for perjury either by being previously dealt with or "no billed". Nor had he been given an immunity from prosecution or a "use" indemnity in respect of his evidence. According to his own evidence, he had been assured from a number of authoritative prosecution sources that he might still be prosecuted before he entered the witness box (as to this, see authorities cited at paras. 657-658). Another important consideration is that when he did give evidence at the trial of Roseanne Catt, Mr Golds had not been relieved from the pressure of a belief that he might still be prosecuted for perjury either by being previously dealt with or "no billed". Nor had he been given an immunity from prosecution or a "use" indemnity in respect of his evidence. According to his own evidence, he had been assured from a number of authoritative prosecution sources that he might still be prosecuted before he entered the witness box (as to this, see authorities cited at paras. 657-658). It might be said that even if improper pressure had been applied to Mr Golds, the harm was minimal since the ultimate version he gave is consistent with what is now an "overwhelming" case for the Crown. Achieving the "right" result, however, can scarcely be regarded as justifying seriously improper methods of investigation which might lead to untrue evidence (c/f Meissner v The Queen (1995) 184 CLR 132; R v Ireland (1970) 126 CLR 321, 335). Her Honour gave to the jury an "accomplice" warning as to Mr Golds' evidence and a warning as to his previous inconsistent version on oath (S/U p18-19). No ground of appeal was taken in 1993 as to the adequacy of these warnings (c/f Davies and Cody v The King (1936-37) 57 CLR p183-5). There is of course no way of knowing whether the jury accepted Mr Golds' evidence and if so to what extent. In light, however, of the rejection of the Catt children's evidence as it then was, I take the view that it is likely that the jury did accept Mr Golds as a completely reliable witness. 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. 185 In my opinion, the Crown case on this count was strong. Nothing provided by way of evidence at the Section 12 hearing affects the credit of any Crown witness on this count. As Mathews J points out it is plain that having regard to the jury's verdict they accepted Barry Catt's evidence and that of the motel proprietor and completely rejected the appellant's version of the events. 186 To my mind, the position in relation to the third count ("the Swans Crossing Incident") is significantly different from the position in relation to the other counts. There is no suggestion that Det Sgt Thomas brought pressure to bear on any witness in relation to this incident. The evidence of Garry Jeffrey as to the actions of the appellant and Mr Catt following the incident, including their conversation, provides powerful support for Barry Catt's account of the relevant events. Furthermore, the evidence of the appellant's attempts to persuade Janet Eslick to support her account of the events of the previous evening is a strong indication that her account of the whole sequence of events could not be accepted. I am satisfied that, notwithstanding the impact which the fresh evidence may otherwise have had on the credit of the appellant, there is no possibility that a jury would acquit on this count. 187 The appeal with respect to this count should be dismissed. Count 4 188 The Crown case at the trial in relation to count 4 depended primarily on the evidence of Barry Catt together with evidence of telephone conversations which he had with others at about the time of the alleged assault. Critical to the Crown case was the allegation that the assault occurred on 5 May 1989, the alternative account being that the events were confined to the morning of the following day. 189 The evidence of Ms Jan O'Brien as to a conversation she had with Barry Catt in the evening of 5 May, which Barry Catt said triggered the incident, was also significant. Barry Catt's version was also supported by Mr French who he alleged he visited following the assault to avoid further incidents occurring. 190 Although the Crown case is now supported by the children who, gave a contrary version at the trial, which was rejected by the jury, I do not believe their evidence would add significantly to the weight of the Crown case. 191 There was no doubt that Mr Catt was injured above the eye. The defence case was that the injury was self inflicted and Mr Catt's story concocted to escape any difficulties from the release of the eucalyptus oil. The jury rejected this proposition. Smart AJ has carried out a detailed analysis of that evidence in relation to this count [54]-[59] and emphasises the role which the evidence of Mrs O'Brien must have played in the jury's analysis of the evidence. Critical to that analysis is the fact that there is no suggestion that Mrs O'Brien's evidence was influenced by Det Sgt Thomas and accordingly the jury's finding should not be disturbed. The essential question for the jury in relation to count 4 was whether to accept the evidence of Mrs O'Brien and Mr Catt or whether the appellant's account was sufficiently credible to raise a relevant doubt. They resolved those matters by accepting the prosecution evidence. 192 I am satisfied that the analysis undertaken by Smart AJ is appropriate and notwithstanding the evidence which is now available a jury acting rationally could not entertain a reasonable doubt about the guilt of the appellant. 193 The appeal in relation to this count should be dismissed. Count 5 194 I have previously discussed the findings made by Davidson ADCJ in relation to this count. [132 ff] 195 The Crown submits that a number of the factual findings made by his Honour are not correct and should not be accepted by this Court. In particular his Honour's findings as to the number of times Mr Catt was prescribed Rivotril and the person who collected his drugs once prescribed is challenged. The Crown also draws attention to the fact that the charge brought against the appellant related to Lithium not Rivotril. The Crown had attempted to include "Lonezepan" (Rivotril) in the indictment but this was rejected by the trial judge. 196 The Crown also submits that it would be an error to rely, as his Honour did, on the evidence of Mr Fellow and Mr Caesar, both of whom it submits are not credible witnesses and further submits that the evidence of the Catt children given at the Section 12 hearing, which was contrary to the evidence which they gave at the trial, should be accepted. 197 The evidence relating to count 5 is complex. The Crown is of course, correct when emphasising that the count relates only to Lithium. However, the sequence of events with respect to Rivotril cannot be ignored when assessing the "credibility" of the sample in which Lithium was identified. If it was not likely that the appellant had access to Rivotril the finding of it in the sample is more likely to be explained by some one else contaminating the liquid. 198 The new version of events given by the children does not relate to the liquids tested by any laboratory. Even if their account is true and, as Davidson ADCJ finds it is difficult to accept, that evidence does not support the conclusion that the appellant had placed Lithium in Mr Catt's drink. 199 In relation to count 5 there is particular evidence which is fresh being that of Mr Fellows, Mr Caesar, Mr Cheers and that of Mr Newell given at the Section 12 hearing. The analysis which Davidson ADCJ makes of that evidence is clearly open and I am satisfied justifies a conclusion that the conviction with respect to count 5 should be quashed. As Davidson ADCJ demonstrates the basis upon which the jury could find that Mr Catt was responsible for the contaminated liquids, as opposed to anyone else, cannot now be supported. There is evidence which a jury could accept which could lead to the conclusion that the Crown had not negatived the possibility that Mr Newell, Det Sgt Thomas and Det Paget were all involved in a scheme to contaminate Mr Catt's drinks in a manner which implicated the appellant. 200 The appeal in relation to this count should be upheld. Count 6 201 The Crown case in relation to this count depended on the evidence of Mr James Morris which, as to the events at the Taree RSL Club, was corroborated by Mrs Ridgeway, who is Mr Morris' sister. 202 The appellant denied that she had endeavoured to solicit Mr Morris and, although she accepted that she was at the Taree RSL Club on Friday 28 July 1981, she denied knowing Mr Morris or ever seeing him before he gave evidence at the trial. 203 The appellant's account of events at the RSL Club was confirmed by Ms Lucy Parkinson who said that she knew both Mr Morris and Mr Ridgeway. She said she had seen Mr Morris that night "getting a bit boisterous" and "very full, very drunk." She also said Mr Ridgeway was "quite full" that night. 204 At the Section 12 hearing Ms Joy McGregor, who is the appellant's sister gave evidence. She said she was with the appellant at the RSL Club on the relevant evening and said she did not see the appellant speak to anyone such as Mr Morris. However, no explanation was given as to why Ms McGregor was not called at the trial. Her evidence is not admissible as fresh evidence. 205 Ms Parkinson was also called at the Section 12 hearing. Although she gave evidence at the trial she gave further evidence at the Section 12 hearing which Davidson ADCJ concluded had not been led at the trial as senior counsel "was clearly of the view that the substance of the ensuing conversations was inadmissible and did not attempt to lead it." I share his Honour's view of the matter. 206 The evidence of Ms Parkinson at the trial and at the Section 12 hearing is summarised by his Honour in the following terms: "Ms Lucy Parkinson (Cooper) Ms Parkinson was called to give evidence she had not given at the trial. She said that after having made a statement in about November 1989 to Mr Jones, solicitor for Ms Catt, as to the events at Taree RSL Club, Mr Vernon Taylor (Count 7) came to her house. She said that she had previously known Mr Vernon Taylor's mother but not Mr Taylor. She said that he spoke to her about Mr Catt and offered the view that Ms Catt could not be trusted and was just a She said that she had previously known Mr Vernon Taylor's mother but not Mr Taylor. She said that he spoke to her about Mr Catt and offered the view that Ms Catt could not be trusted and was just a "blow in". He also mentioned another person, Mr Newell, who she had not heard of before. She claimed that Mr Taylor said he was a messenger on behalf of Mr Catt and Mr Newell who wanted her to change the statement she had already made with particular reference to Ms Catt not having spoken to any person who might have been Mr Morris at the Taree RSL Club. Ms Parkinson said that she told him that she would give this some thought. Ms Parkinson claimed that a few days later, Mr Taylor telephoned her and had visited her again and she told him that she had not had time to think about his request. Some two to three days after that he rang again and she had told him that she knew what had happened that night because she was there. She said there was no further contact between them (H/T p2352-57)." 207 Davidson ADCJ asked the question as to whether Ms Parkinson's additional evidence could be accepted as fresh evidence. His Honour's discussion is as follows: "Is Ms Lucy Parkinson's Additional Evidence Fresh? Ms Parkinson said at the trial that she had been visited twice by Mr Taylor and had received a telephone call from him. Senior Counsel for Ms Catt, however, was clearly of the view that the substance of the ensuing conversations was inadmissible and did not attempt to lead it (H.Ex 2.10; T/T p2544-5). At the trial, Mr Catt does not appear to have been asked whether he knew or had attempted to have any contact made with Ms Parkinson through Mr Taylor or otherwise. Mr Newell said that whilst he knew Mr Taylor he did not know Ms Parkinson. He denied that he had ever "gone with Vernon Taylor" to Ms Parkinson's house. The basis for this suggestion is not clear. Ms Parkinson never suggested that Mr Newell was present on either occasion on which Mr Taylor visited her. Mr Taylor at the trial said that he had, at the request of Det Sgt Thomas and Det Paget, found Ms Parkinson and asked her whether she was prepared to make a statement and talk to the police. He said that he had told her the "whole story". He said he had reported to the police the result of his contact with Ms Parkinson. He said ultimately Ms Parkinson had said that she was prepared to make a statement but not favourable to the prosecution's case (H.Ex 2.6; T/T p2593-5). Mr Thomas at the section 12 hearing said that he knew nothing about Mr Morris prior to the date of Mr Morris' statement of 5 September 1989. Mr Baggs, FACS Officer, said that he had received information from Mr Ferguson on 25 August 1989 of the alleged approach by Ms Catt to Mr Morris. Mr Baggs asserted that later on that same day he had so informed Det Sgt Thomas (H.Ex UUUU). Mr Thomas said, however, that he could not say what investigative process led him to Mr Morris as a prospective witness (H/T p371). He denied that he had offered Mr Morris any sort of assistance or protection if Mr Morris gave evidence against Ms Catt (H/T p372). The evidence does not disclose how either Mr Catt, Mr Newell and/or Det Sgt Thomas or Det Paget came to know of the existence and general purport of a statement made by Ms Parkinson to the solicitor for Ms Catt in a pending criminal proceeding against his client involving serious criminal charges. 208 Davidson ADCJ refers to Mr Ferguson, a FACS officer as being the person who first received information from Mr Jimmy Morris of the alleged approach by Ms Catt. There is a reference to this fact in a summary of the history of the Department of Family and Community Services involvement in the problems of the Catt family. The relevant entry is: "At about 11.30 am on 25.8.88, Bill Ferguson DO revealed to me that the Aboriginal Police Liaison Officer, Jimmy Morris, had allegedly disclosed to him that Roseanne Catt had offered money for Morris to kill Barry Catt. I told Ferguson that he should have revealed this information to the Police earlier than that time and told him that I would do so." 209 If this "evidence" is admissible and was accepted, and there would seem no reason why it should not be, it may follow that Det Sgt Thomas was not responsible for, or the source of, the allegations made by Mr Morris. 210 Davidson ADCJ also records the evidence which his Honour received as to allegations of the involvement of Mr Morris in sexual activities with under age aboriginal girls. The suggestion which has been made is that because of these allegations and, upon the assumption that Det Sgt Thomas knew of them, Det Sgt Thomas put pressure on Mr Morris to give false evidence against the appellant. 211 Davidson ADCJ discussed the relevant evidence in the following terms: "MR JAMES MORRIS AND ALLEGATIONS RELATING TO UNDER-AGE ABORIGINAL GIRLS Mr Gregory Baggs and H.Ex OOOOO H.Ex OOOOO is a report by Mr Baggs of FACS dated 22 September 1989 to his Regional Head Office. It recites a report by two officers, one of whom is Mr Ferguson, to the effect that "a number of thirteen to fifteen year old Aboriginal girls had been involved in sexual intercourse with Jimmy Morris, Aboriginal Police Liaison Officer (Taree), and that also involved were a number of Taree policemen. It was alleged that Mr Morris did this during late shifts in his job". The report then states that Mr Morris' wife had left him some three months previously on discovering what he was (allegedly) doing. It is then recited that "many people in the Purfleet (Aboriginal) Community were aware of this" including, so it is reported, Mr Ferguson. Mr Baggs reports that he had sent Mr Ferguson to obtain the names of one of the girls involved, and Mr Ferguson had returned with two statements, not in evidence but apparently tending to confirm the allegations. The report recites that the matter had been drawn to the attention of Police Internal Affairs Branch which had investigated and concluded "there appears to be substance to the disclosures of these Aboriginal girls". H.Ex OOOOO then cites two matters as appearing "to link". One is the visit by Ms Whalen to the offices of FACS on Tuesday, 19 September 1989 in which she is said to have "disclosed her treatment by Det Peter Thomas when questioned about the Catt case". The second, "Jimmy Morris is a witness for the police in the charges against Ms Catt". Mr Baggs said that the FACS investigation of allegations of sexual abuse of under-age Aboriginal girls had been made by an Area Supervisor, Mr Ford (not called). H.Ex OOOOO states the name of one of the two girls, described as "workers", from whom Mr Ferguson had obtained a statement. H.Ex OOOOO seems to take the form of an official notification by Mr Baggs to his superior officer, Mr Madden, on 22 September 1989 as to that named child. H.Ex OOOOO states that the Police Internal Affairs investigation was "meant to be 'hush hush'". Neither the result of Mr Ford's investigation nor the Police Internal Affairs investigation was before me at the section 12 hearing. According to Mr Baggs, although it involved allegations of criminality as to at least one child, the matter was left to be dealt with by members of the Purfleet Aboriginal Community rather than by the police or FACS. DID DET SGT THOMAS AND/OR DET PAGET KNOW OF THE FACTS ASSERTED IN H.EX OOOOO AS AT 5 SEPTEMBER 1989? Objection was taken to the admission of H.Ex OOOOO by the Crown on the basis that there was no evidence that either Det Sgt Thomas or Det Paget had been aware of the allegations regarding Aboriginal children prior to the date of Mr Morris' statement of 5 September 1989. I overruled this objection on the basis that H.Ex OOOOO contains an assertion that these allegations had been aired since June–July 1989, and this went to whether there is an inference open that Det Sgt Thomas and/or Det Paget are likely to have been aware of the allegations, particularly in light of the fact that some police stationed at Taree are alleged to have been involved. Mr Thomas denied at the section 12 hearing ever having seen Mr Baggs' report of 22 September 1989 (H.Ex OOOOO) or having any recollection of having then been aware of these allegations. He said that he had only been made aware of them recently but had no recollection of what his state of knowledge was as to them in 1989, and in particular what it was before and at the date of the statement of Mr Morris dated 5 September 1989 which is witnessed by Det Paget (H.Ex YY). Det Paget said that as at 5 September 1989, the date he appears to have witnessed Mr Morris' statement, Mr Morris was not to his knowledge being investigated by police in relation to the allegations in H.Ex OOOOO. Det Paget said he knew nothing about that (H/T p575-6). Det Paget said that as at 5 September 1989, the date he appears to have witnessed Mr Morris' statement, Mr Morris was not to his knowledge being investigated by police in relation to the allegations in H.Ex OOOOO. Det Paget said he knew nothing about that (H/T p575-6). Mr Baggs said that when on 25 August 1989 he had informed Det Sgt Thomas about Mr Ferguson's information disclosing the soliciting of Mr Morris by Ms Catt, he could not recall if he was then aware of the allegations as to the Aboriginal children. Mr Baggs said that he got no indication from the police that they were aware of the allegations at that time (H/T p2127). According to H.Ex OOOOO, it was on 20 September 1989 that Mr Ferguson and another departmental officer, Mr Davis (not called), advised Mr Baggs of the allegations. It also appears from H.Ex OOOOO that it was not until some time between the date of that document being faxed to Mr Baggs' superior, Mr Madden, and about one week previously that senior police outside Taree were informed of the allegations. H.Ex OOOOO states that the head Aboriginal Police Liaison Officer at Hornsby had been informed and he in turn had advised his Chief Inspector. It was not until after this it would seem that the "hush hush" investigation by Police Internal Affairs commenced. This history indicates that it was not until after Mr Morris had made his statement of 5 September 1989 that senior police at Hornsby were officially notified on a confidential basis of the allegations involving children from the Purfleet Aboriginal Community. H.Ex OOOOO, however, makes it clear that the allegations were being made known on an unofficial basis some three months prior to September 1989. They came to the notice of Mr Morris' wife and members of the Purfleet Aboriginal Community. There is an available inference that police officers stationed at Taree were also likely to have known, at least in general terms, of these allegations particularly as they were said to involve local police from Taree. The question remains whether it is reasonable to infer that the allegations were likely to have come to the ears of Det Sgt Thomas and/or Det Paget who were not formally stationed at Taree. In an interview with police assisting the Crown at the section 12 hearing, Mr Ferguson denied that he was said to have been involved in the sexual activities alleged. He asserts that Mr Morris was alleged to have been involved but says "it never came to DOCS" (H.Ex 39, Q&A 49-57; verified in the witness box H/T p1975). H.Ex 39 does not indicate when Mr Ferguson came to know of the allegations and in evidence he said that he was not sure when he came to know of Mr Morris' alleged involvement in what was described by Mr Ferguson as a "prostitution ring". Whenever it was it must have been on or prior to 20 September 1989, the date of H.Ex OOOOO. Mr Ferguson denied that in about August or September 1989 Mr Morris had made any confession to him about the matter. He also denied, however, that he had been told by Mr Morris of the soliciting of him by Ms Catt to murder Mr Catt (H/T p1983, 1988). I do not accept this in light of Mr Baggs' report, H.Ex UUUU, where at paragraph 38 he states that it was on 25 August 1989 that Mr Ferguson told him of Mr Morris' allegation. 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 (H/T p1208). 212 Davidson ADCJ expressed the following conclusions in relation to count 6: "CONCLUSIONS AS TO COUNT 6 Ms Joy McGregor As to Ms McGregor, although her evidence is clearly material, no satisfactory reason has been suggested to me to explain why she was not called at the trial. On the evidence before me she was available but notwithstanding the apparent importance of what she had to say particularly in relation to the alleged soliciting by Mr Morris, no statement was taken from her. This and her close relationship to Ms Catt brings me to the view that her evidence lacks sufficient cogency to be regarded as fresh. Ms Lucy Parkinson As to Ms Parkinson, it was the decision of senior counsel at the trial not to adduce the details of the conversation which she says that she had with Mr Vernon Taylor. Whatever the validity of senior counsel's view, the evidence given by Mr Taylor that he had reported back to Det 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 c Whatever the validity of senior counsel's view, the evidence given by Mr Taylor that he had reported back to Det 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 one of these two police officers, Mr Newell and/or Mr Catt. 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. Allegations as to Under-Age Aboriginal Girls As to whether pressure may have been brought to bear on Mr Morris by reason of his alleged involvement in serious sexual offences relating to Aboriginal children, there is no direct evidence to establish that either Det Sgt Thomas or Det Paget was aware of these allegations before Mr Morris made his formal statement to the police, H.Ex YY, on 5 September 1989. Such direct evidence as was given suggests that the contrary may be true. The circumstances, however, raise in my mind a degree of unease as to whether this may have been so. It would be extraordinary if, in a township the size of Taree, allegations of this kind, abroad some three months or so prior to September 1989 involving police officers at Taree Police Station, did not come to the ears of Det Sgt Thomas and/or Det Paget before 5 September 1989 while they were working in Taree. If they did know, then it may have been within the modus operandi of Det Sgt Thomas to have "softened up", Mr Morris, directly or indirectly, into co-operating in making a case against Ms Catt and by agreeing to give false evidence. Against this is the sworn evidence of Mr Morris and Ms Ridgeway. If Mr Morris and Ms Ridgeway were persuaded that co-operation with police might help to keep Mr Morris out of trouble in this regard, then Ms Ridgeway may well have assisted her brother. 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 The Crown alleged that between 15 July and 16 August 1989 Ms Catt solicited Mr Vernon Taylor to murder Mr Catt. Mr Vernon Taylor Mr Taylor said that he had known Mr Catt since childhood. He met Ms Catt in March/April 1988. Some six months later Ms Catt told him that a rift was developing between her and Mr Catt. He said she drove a white Corvette motor vehicle and he had expressed some interest in taking photographs of it, and she had invited him to do so at the office and workshop at 2-8 Cornwall Street. Mr Taylor said he had gone a number of times to 2-8 Cornwall Street for that purpose and during the course of these visits, Ms Catt had informed him that Mr Catt was sexually assaulting his children. Mr Taylor said that he was a professional kangaroo shooter. He said that Ms Catt had asked him whether he was any good with guns and he had told her of his professional interest in them. He said that, "probably" in August 1989, in the office at 2-8 Cornwall Street, Ms Catt had asked him if he would "do a job for her". She said that she wanted Mr Taylor to "bump him off". He said that he had assumed she was referring to Mr Catt because of the derogatory manner in which she had previously spoken of Mr Catt. Mr Taylor said that Ms Catt had gone on to say that she wanted to get Mr Catt "out of the road" and it was worth $20,000 to him. He said he had previously indicated that he owed $18,000 on his house (H.Ex 2.6; T/T p2558-62). Mr Taylor said that he returned to 2-8 Cornwall Street during the following week, and that Ms Catt asked him on this occasion whether he had thought about "bumping him off for her". She told him the offer still stood. He claimed that she said that Mr Catt had been "hassling her and the kids and she just wanted him out of the road and she said the $20,000 was there" if he wanted it. Mr Taylor said that at one stage he had told her that he would like to have the money. About three weeks later at about 6.45pm, at the invitation of Ms Catt, Mr Taylor said that he went to 1 Cornwall Street. He was invited into the house and sat with Sharon Catt playing noughts and crosses. Ms Catt asked him about getting her a handgun and he said that he had told her that he would do so. She said that she wanted to fit a handgun into her handbag and that she did not want to "wing" him, "I just want to blow him away. If he comes near this place or comes near the kids I just want to kill the bastard". She told him that if he went to the police as to these approaches by her to him, she would know about it because she said, "I've got a lot of friends up there and they will do anything for me" (H.Ex 2.6; T/T p2563-4). Mr Taylor said that he had been asked to make a statement about the matter by Mr Newell and he had done so on 20 August 1989 at his house at Wingham after Mr Newell, Det Sgt Thomas and Det Paget had arrived there with a typewriter. Mr Taylor was cross-examined on the basis that he had visited Ms Catt frequently because he was "sweet" on her. He denied the suggestion that he may have had the motivation of a spurned lover to concoct lies to implicate her. Her Honour in summing up reminded the jury of this (S/U p81). Ms Roseanne Catt Ms Catt said that Mr Taylor did come to Cornwall Street to visit Mr Catt but never to visit her. She denied having spoken to him about guns or asking him whether he knew about guns. She denied asking him to "do a job" for her as alleged by Mr Taylor. She said that one evening he had come to her house at 1 Cornwall Street looking for Mr Catt and she had told him he was not there and that Mr Catt lived across the road at the office (H.Ex 2.9; T/T p2712-4). Ms Catt's attention was drawn to a passage of evidence she had given at the trial of Mr Catt on the sexual assault charges. She agreed that she had there said that Mr Taylor came to 1 Cornwall Street looking for Mr Catt on one occasion. She had been in the shower and had been told by one of the children that Mr Taylor was at the house. She had said that she would come out and that she thought that whilst Mr Taylor was waiting for her to do so he had played noughts and crosses with one of the children (H.Ex 2.9; T/T p3027-8). The Catt Children: Christopher, Sharon and Julie Christopher Catt said in cross-examination that he had seen Mr Taylor on occasions talking to Mr Catt but had never seen him talking to Ms Catt (H.Ex 2.8; T/T p3582). Sharon Catt said that she knew of Mr Taylor but had never met him (H.Ex 2.8; T/T p3096). In cross-examination, however, she said she had seen Mr Taylor coming out of the workshop. She understood that he was a friend of Mr Catt's. She said she could not remember him coming to see Ms Catt in the afternoons but she did remember one night when he had played noughts and crosses with her when Mr Taylor had come looking for Mr Catt and whilst Ms Catt was in the shower. She said that all the Catt children had been present at 1 Cornwall Street when this had occurred. She denied that there was any discussion about guns at any stage (H.Ex 2.8; T/T p3188-9). Julie Catt does not seem to have been asked about Mr Taylor at the trial. THE SECTION 12 HEARING The Catt Children: Christopher, Sharon and Julie The outstanding body of fresh evidence once again came from three of the four Catt children - Christopher, Sharon and Julie. All three now gave direct evidence supporting the Crown's case. Christopher Catt in a statement dated 25 March 1993 annexed to and verified by his affidavit of that date, states that he did not know Mr Taylor very well, only as one of Mr Catt's friends. One night, however, in July or August 1989 he recalled coming home and seeing Mr Taylor at 1 Cornwall Street playing noughts and crosses with Julie (not Sharon) whilst "Roseanne was out the back". He states that Ms Catt came in and there was conversation between her and Mr Taylor in which Christopher Catt said he overheard the words "I'd like to see him dead". He said that he did not overhear all of the conversation (H.Ex 22). He states that Ms Catt came in and there was conversation between her and Mr Taylor in which Christopher Catt said he overheard the words "I'd like to see him dead". He said that he did not overhear all of the conversation (H.Ex 22). In his statement to the police assisting the Crown in the presentation of its case in the section 12 hearing in January 2003, Christopher Catt gave a yet more expansive account of events on that night. He said that Mr Taylor had been to the gym or was waiting to go to the gym. Christopher Catt then states that he did not think he had told anyone this before but he had overheard Ms Catt saying to Mr Taylor, "Well, I want you to kill him, there's 20 grand if you do it". He said he thought that Sharon and Julie were there as well. Christopher Catt said that he had been sitting on the floor watching television when these words were spoken. He said that "from memory" he did not think she discussed how she wanted it to happen, she was just enquiring to see if Mr Taylor would be interested. He repeated that no-one had ever asked him about this incident with Mr Taylor before nor had he ever spoken about it to police or anyone else (H.Ex 21, Q&A 184-204). Christopher Catt confirmed in evidence the truth of what he had deposed in the 1993 affidavit and the January 2003 interview. He was asked in cross-examination about the passage in the 1993 version in which he had said that he was not there for the entire conversation but before leaving he had heard Ms Catt say to Mr Vernon Taylor, "I would like to see him dead". He explained that he had cut that short "cos I didn't want to tell them the rest of what I had heard". He said that in 1993 from the time they had been living at Ms Dawn Lawson's place he had not wanted to talk about these matters and what he said in 1993 was "the quickest way out, so I didn't have to talk about it". He said the quickest way "to get it out, to answer it was to say I was not there". He said he had told a lie when in H.Ex 22, Q&A 17 he had said that he was not there for the entire conversation, "I went to my bedroom out the back" (H/T p1373-6). Sharon Catt in her 1993 affidavit, when asked about the evidence she had given at Ms Catt's trial in relation to Mr Taylor, deposed that at the trial she said she played noughts and crosses with him on the front porch but that was not completely true – they had also played noughts and crosses in the lounge room (see annexed statement of 22 March 1993 at page 10). In a further statement of 24 March 1993, she was asked about "an incident involving Vernon Taylor which occurred in July or August 1989 at Taree". She stated that she recalled playing noughts and crosses with Mr Taylor whilst waiting for Ms Catt to come out of the shower. Sharon Catt said that when Ms Catt and Mr Taylor were sitting on the lounge she heard Ms Catt say to Mr Taylor, "Do you have any experience with guns". He responded, "I've gone rabbit shooting when I was younger" or "something like that". Ms Catt asked, according to Sharon Catt, whether Mr Taylor knew how she could get "a little pistol for my handbag". Sharon Catt said that Ms Catt said, "Will you do a job for me? I'll pay you" and mentioned a large amount of money. She thought it was around $20,000 but was not sure. She said she was not sure who else was there when this conversation took place. She said, "Roseanne had told me to say that the conversation never happened. That is what I did, but it was actually true". Part of the evidence of Sharon Catt at the trial was that there was no discussion between Ms Catt and Mr Taylor about guns at any stage (H.Ex 2.8 p3188-9). In her pre-section 12 hearing interview in January 2003, Sharon Catt repeated substantially what she had told the police officer interviewing her in 1993 (H.Ex 27, Q&A 234-7). Apart from confirming what she had said in 1993 and in January 2003, Sharon Catt was not extensively questioned at the section 12 hearing as to her evidence in relation to Mr Taylor. She confirmed that it was her recollection that there was a conversation between Ms Catt and Mr Taylor in which Mr Taylor had said that he had experience with guns in shooting rabbits (H/T p1458). Julie Catt in her pre-section 12 hearing interview spoke of Ms Catt saying "sort of in a joking way" in the lounge room at 2 (sic) Cornwall Street when she was playing noughts and crosses "how she wanted to sort of knock Barry – dad off". She continued, "I don't know whether she was sort of asking him about buying a gun or whether he was going to be the guy who was going to knock him off or what the scenario there was…." (H.Ex 18, Q&A 58). In evidence she was asked whether she had ever told anyone about the incident and she said, "Well when I was at Aunty Dawn's that's when everything was found that – that we were lying" (H/T p1251). Mr Andrew Connolly Mr Connolly was not called as a witness at the trial. On the same day that Mr Taylor gave a statement, 20 August 1989, he also gave one. The signature in each case was witnessed by Det Sgt Thomas (see H.Ex NN). Mr Connolly gave in evidence that on Tuesday, 17 August 1989, he had met Mr Taylor in the street in Taree. He said that during their conversation Mr Taylor told him about a conversation he had with Ms Catt involving a proposal that she had put to Mr Taylor for the payment of money. Mr Connolly was also spoken to by police assisting the Crown in the presentation of its case at the section 12 hearing. He said that the part of his statement of 20 August 1989 which indicated that he had passed the information which he had got from Mr Taylor on 17 August 1989 to Mr Catt was in error and that he had in fact told Mr Frakes, solicitor then acting for Mr Catt. He said after that Det Sgt Thomas came to see him. Mr Martin, then of counsel for Ms Catt, was critical of the Crown at the section 12 hearing in not calling Mr Connolly at the trial. I can see no basis for this criticism although he might conceivably have been called in an attempt to rebut a suggestion of recent invention put to Mr Taylor. His account, however, was not a necessary part of the narrative of events on which the Crown relied and I am unable to see how he might have assisted Ms Catt's case." The conclusion of Davidson ADCJ in relation to count 7 219 In relation to count 7 Davidson ADCJ reached the following conclusions: "The evidence now given by the Catt children does not fall within the category of matters in which, on my reading of the Summing Up, the jury must necessarily have concluded that the children were lying and had done so at the instigation of Ms Catt. Whilst this conclusion might have been open in relation to the evidence of Sharon Catt, the evidence of Christopher Catt was negligible in the Crown's case at trial on this count, and Julie Catt's less so. There is, therefore, no jury finding implicit in the verdict which might present an obstacle to disregarding the evidence of the children. Even, however, when their evidence is disregarded, or rejected as it was by the jury on other issues, it was open to the jury to accept the evidence of Mr Vernon Taylor as establishing the Crown's case. It is likely that the verdict on this count depended on the view the jury took of him as a witness. The only matter about which I have misgivings in relation to the evidence of Mr Taylor at the trial is that the jury did not have the evidence of Ms Parkinson as to what Mr Taylor said to her on the issue of alleged collusion. They did have, however, the fact of the conversations and that he had reported back to Det Sgt Thomas and Det Paget. There is nothing in the evidence of what was said to her by Mr Taylor which suggests to me that the verdict as to Count 7 might have been different if the substance of the conversations had been before the jury. There is 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 him to give a false account. Nothing presented at the section 12 hearing raises concern that there may have been a miscarriage of justice specifically in relation to Count 7. 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. 224 There can be no doubt that a jury acting rationally could, having regard to the fresh evidence, entertain a reasonable doubt about the guilt of the appellant on this count. Ground 1(b) 225 It is unnecessary having regard to the conclusion I have otherwise reached to further consider ground of appeal 1(b). In any event I would not uphold the appeal on this ground. 226 Although the fact that all the counts were heard together is relevant to an understanding of the significance of the fresh evidence in the resolution of the appeal in relation to the individual counts, the decision to have all counts tried together was not questioned by the defence either at the trial or in the original appeal. Although the issue had been raised early in the trial defence counsel informed the court that the appellant did not wish to pursue any application to have any of the charges severed. 227 The appellant was represented by experienced counsel at the trial and on the appeal. Throughout the trial the defence case was that the appellant "was the innocent victim of a monstrous conspiracy." Her Honour reflected this case in the directions she gave the jury as can be seen in the following extracts: "The first matter is, was there lithium in those liquids before Adrian Newell removed them from the refrigerator? And this involves the whole question of whether there was a conspiracy, as the defence alleges, between Barry Catt, Peter Thomas and possibly Adrian Newell to turn the tables as it were on Roseanne Catt. This is not only an important matter in the trial, but it is also most important, indeed crucial for this charge.' 228 In directing the jury further on this issue her Honour referred to the appellant's contention that there had been, and there was, a conspiracy in relation to the laying of the charges and the subsequent proceedings of the matters. Her Honour made the following observations: "… Adrian Newell and Peter Thomas, one or both of whom according to the defence case was involved in a conspiracy with Barry Catt to charge Roseanne Catt with trumped up criminal charges, this question raises the whole issue of the involvement of those two people in this trial and the lead up to the trial, and the question of police propriety in the manner in which Roseanne Catt was arrested, charged and generally dealt with on 24 August 1989 and afterwards. The weak link, according to the defence case, is that these liquids went through the hands of both Peter Thomas and Adrian Newell, either one or both of them, according to the defence case, was at that time deliberately conspiring with Barry Catt to turn the tables on Roseanne Catt and to falsely manufacture criminal charges against her in order to get Barry Catt off the hook on the court proceedings which he was then facing and which he appeared to be losing. The person against whom the allegations were primarily made was Detective Sergeant Peter Thomas as he then was, the allegation being that this whole trial is a travesty, the result of a monstrous collaboration between Barry Catt and himself, 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. All this material is important in the sense that the defence says that all these charges are the result of this conspiracy between Peter Thomas and Barry Catt, and maybe Adrian Newell, to get Barry Catt off the cases that he was then getting the worse of." 229 At the end of her Honour's summing up defence counsel asserted a conspiracy in relation to every count in the following terms: "… in relation to Mr Thomas credibility I would ask you to remind the jury that the defence case in relation to the conspiracy was that her involvement in the matter extends to every count on the indictment … ." 230 It is fundamental to the administration of our justice system that parties, including accused in a criminal trial be free to make their own choice between the available forensic options. Unless the decision which is made is one that was not reasonably open and thereby the accused has been denied the chance of acquittal an appeal court cannot intervene (see Suresh v The Queen (1998) 72 ALJR 769; Doggett v The Queen (2001) 208 CLR 343; TKWJ v The Queen (2002) 212 CLR 124). In the present case the decision to have all counts tried together was reasonably open to the defence. The appropriate orders 231 In these circumstances it is necessary to identify the orders which are appropriate. Smart AJ has considered the relevant principles which I gratefully adopt. 232 I have come to the conclusion that the appeal in relation to counts 3 and 4 should be dismissed and the appeals in relation to counts 1, 2, 5, 6, 7 and 9 upheld. 233 With respect to count 9 (unlicensed pistol) the sentence has already been served and an order for a new trial would not be appropriate. A verdict of acquittal should be entered. 234 However, with respect to the other matters the charges are serious and although I am satisfied the convictions should be quashed it is a matter for the Director of Public Prosecutions, and not this Court, to determine whether a new trial should take place. Although there is undoubtedly significant reasons why a new trial may be appropriate, not the least of which is to ensure that when significant charges are brought they are determined according to law, this must be balanced with the fact that fresh trials would occasion significant expense and it would be unlikely that any further term of imprisonment would be required to be served, even if convictions were entered on all charges. The appellant was released on bail on 6 August 2001, just over four months before her release on parole was due on 10 December 2001. 235 In the circumstances, the appellant should remain on bail pending the decision by the Director of Public Prosecutions as to whether to proceed with any fresh trial. 236 I propose the following orders: 1. Uphold the appeal in relation to counts 1, 2, 5, 6, 7 and 9 and quash each conviction. 2. Enter a verdict of acquittal on count 9. 3. Order that there be a new trial in relation to counts 1, 2, 5, 6 and 7. 4. Dismiss the appeal in relation to counts 3 and 4. 5. The appellant's bail is to continue. 6. Reserve liberty to apply. 237 ADAMS J: I agree with the judgment of McClellan AJA and with his Honour's reasons. 238 SMART AJ: The background and the relevant circumstances are set out at length in the judgment of McClellan AJA. Section 12(2) enables the Court of Criminal Appeal to: "remit a matter or issue to a court of trial for determination" 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. 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. 269 Mr Golds said that the police prosecutor at the committal proceedings and the Crown Prosecutor at the trial had told him before he gave evidence that he could still be prosecuted for perjury. He had never been given a guarantee by anybody that he would not be charged with perjury. He was warned that he might be the subject of a perjury charge. 270 Mr Golds did not agree that he had great faith in Sgt Thomas. Mr Golds agreed that he had not told anyone about the statement of Mrs Catt whether he was interested in making some money bumping off Mr Catt until 9.30am on 23 July 1990, when he saw the police prosecutor. He had forgotten about this statement when he saw Sgt Thomas at the Newell house and when he saw Sgt Henderson on 8 November 1989. He remembered it when he saw and spoke to Sgt Thomas at court on 23 July 1990, before he saw the police prosecutor. 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]). 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. 295 Max French gave evidence that Mr Catt arrived one night with an injured eye. He was later taken to hospital by the police for treatment. 296 The Crown case before Davidson ADCJ was supported by the Catt children who gave a version contrary to that which they gave at Mrs Catt's trial. While the evidence of the Catt children cannot be ignored, it has to be viewed with great caution and scrutinised very carefully. It adds some strength to the Crown case. 297 The jury also accepted the evidence of Mr Barry Catt as to the incident. Combining the evidence at the trial with the fresh evidence, particularly that as to Mr Thomas' corrupting influence, there is no reasonable possibility of Mrs Catt being acquitted on this count. Counts 5 and 9 298 I agree with McClellan AJA that the convictions on these counts must be quashed. 6th and 7th Counts 299 The trial judge told the jury (SU73) that Counts 6 and 7 were quite independent of Barry Catt's credibility, but that there was still a very central question between the two sides as to who was telling the truth, bearing in mind it is for the Crown to prove its case beyond reasonable doubt. That was correct. 300 On Count 6 the trial judge pointed out that the evidence was in a very short compass with James Morris and Sandra Ridgeway giving evidence for the Crown and Roseanne Catt and Lucy Parkinson for the defence. 301 The trial judge directed the jury (SU77-78) as to Counts 6 and 7. "You must consider them in isolation entirely from the balance of the evidence, with the exception of one piece of evidence; and that is the evidence, if you accept it, of motive in relation to Roseanne Catt. That evidence I will be coming to later when dealing with the fifth count. But apart from considering as relevant to these matters any motive which she might have had to do away with her husband, really you must consider these as entirely isolated matters. Look at the evidence in relation to them quite separate from the evidence in relation to any of the other matters. Because the Crown must prove to you in relation to these counts on the direct evidence that relates to them only that she is guilty is charged. And, even if you have found in the Crown's favour in relation to the other matters, you must ignore that fact when you come to consider these counts, six and seven. They are quite separate from the others in that they are dependent on quite separate bodies of evidence, and you must bear that in mind and deal with them separately considering only in relation to counts six and seven the evidence as to motive, that is the only other evidence in the trial that can in any way be relevant to these counts." 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. 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. 324 Mr Baggs' report contains an assertion that allegations about Mr Morris abusing Aboriginal children had been aired since June­July 1989. Some police stationed at Taree were said to be involved. The report of Mr Baggs recorded that he was told of these allegations by two named officers on 20 September 1989. Mr Baggs stated that senior police officers were told of these allegations, apparently about a week earlier. About that time an investigation by Police Internal Affairs commenced. 325 Mr Baggs stated that the matter was left to be dealt with by members of the Purfleet Aboriginal Community rather than by the police or FACS. 326 Before Davidson ADCJ, Mr Thomas denied ever having seen Mr Baggs report of 22 September 1989 or having any recollection of having then been aware of these allegations. He said that he had only become aware of them recently. He had no recollection of what his state of knowledge was before and at 5 September 1989. 327 Det Paget said that as at 5 September 1989 when he witnessed Mr Morris' statement, Mr Morris was not, to his knowledge, being investigated by the police. 328 District Officer Ferguson said that he was not sure when he came to know of Mr Morris' alleged involvement with under age Aboriginal girls. It was described by District Officer Ferguson as a prostitution ring. Davidson ADCJ concluded, correctly, that it must have been before 20 September 1989. 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." "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." 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 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 ********** DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated.