Supreme Court New South Wales Medium Neutral Citation: Beckett v State of New South Wales [2014] NSWSC 1164 Hearing dates: 20 August 2014 (argument) Decision date: 22 August 2014 Before: Harrison J Decision: Admit the evidence given by Ms Bracamonte in this Court before me on 18 August 2014 contained in the First Schedule and the transcript of the recorded conversation between her and Mr Thomas on 31 May 1989 contained in the Second Schedule. Catchwords: EVIDENCE - tendency evidence - Evidence Act 1995 s 97 - significant probative value - whether evidence unfairly prejudicial Legislation Cited: Evidence Act 1995 Cases Cited: A v New South Wales [2007] HCA 10; (2007) 230 CLR 500 Robinson v Goodman [2013] FCA 893 Category: Procedural and other rulings Parties: Roseanne Beckett (Plaintiff) State of New South Wales (Defendant) Representation: Counsel: P E Blacket SC & N Broadbent (Plaintiff) J E Maconachie QC, P Saidi & A N Williams (Defendant) Solicitors: Turner Freeman (Plaintiff) I V Knight, Crown Solicitor (Defendant) File Number(s): 2008/289411 Publication restriction: Nil Judgment 1HIS HONOUR: Ms Beckett served a notice upon the defendant under s 97 of the Evidence Act 1995 dated 15 May 2014 in the following terms: "Notice is hereby given that the plaintiff, Roseanne Beckett, presently intends to adduce evidence of 'tendency', pursuant to the tendency rule in subsection 97(1) of the Evidence Act 1995. That is, evidence of the character, reputation, conduct or tendency that a person has or had, to prove that a person has or had a tendency (whether because of the person's character or otherwise) to act in a particular way or to have a particular state of mind. 1. The person whose tendency is the subject of the evidence sought to be adduced is Peter Thomas. 2. The tendencies sought to be proved are Peter Thomas's tendencies to act in the following particular ways, namely: 2.1 to misstate the strength of evidence against a suspect; 2.2 to incite or pressure others to fabricate their evidence in order to strengthen the case against a suspect; 2.3 to threaten others with the improper exercise of his police powers; 2.4 to act in excess of his powers as a police officer in order to intimidate others; and 2.5 to initiate proceedings against a suspect without reasonable cause. 3. Pursuant to clause 5(2)(b), Evidence Regulation 2010, particulars are: 3.1 In May 1989, in executing a search warrant of Ramon and Christa Bracamonte's house at Flat 2, 34 Allens Parade in Lennox Head, in the presence of Ramon Bracamonte and Crista Bracamonte, Detective Sergeant Tutt, Detective Grant Connelly, Detective Robert Manitta and Senior Constable Wayne Magann: 3.1.1 ransacked the premises; and 3.1.2 strip searched Christa Bracamonte without a reasonable basis for doing so. 3.2 At about 10.30am on or about 31 May 1989, at Byron Bay Police Station, in the presence of Christa Bracamonte and Detective Grant Connelly: 3.2.1 misstated the strength of the evidence against Christa Bracamonte and Ramon Bracamonte; 3.2.2 encouraged Christa Bracamonte to fabricate evidence against Ramon Bracamonte in exchange for immunity from prosecution; and 3.2.3 threatened Christa Bracamonte with the improper exercise of his power as a police officer. 3.3 The address of Christa Bracamonte, so far as it is presently known is Shop 1, 1269 Pacifica Highway, Turramurra in New South Wales. 3.4 The addresses of Detective Sergeant Tutt, Detective Grant Connelly, Detective Manitta and Senior Constable Magann are not presently known." 2Section 97 provides as follows: "97 The tendency rule (1) Evidence of the character, reputation or conduct of a person, or a tendency that a person has or had, is not admissible to prove that a person has or had a tendency (whether because of the person's character or otherwise) to act in a particular way, or to have a particular state of mind unless: (a) the party seeking to adduce the evidence gave reasonable notice in writing to each other party of the party's intention to adduce the evidence, and (b) the court thinks that the evidence will, either by itself or having regard to other evidence adduced or to be adduced by the party seeking to adduce the evidence, have significant probative value. (2) Subsection (1)(a) does not apply if: (a) the evidence is adduced in accordance with any directions made by the court under section 100, or (b) the evidence is adduced to explain or contradict tendency evidence adduced by another party." 3The defendant complained faintly about the reasonableness of the notice that was given. It would from my point of view certainly have been preferable for the issue of tendency evidence to have been considered and dealt with before the commencement of the trial proper. Be that as it may, the notice given with respect to Ms Beckett's intention to adduce this particular evidence was reasonable in my opinion. 4The significant issues for determination were rather whether the evidence that is sought to be adduced is relevant, whether or not it has significant probative value and whether the evidence ought to be excluded because its probative value is outweighed by its prejudicial effect. 5Some of the applicable principles were reviewed by Mortimer J in Robinson v Goodman [2013] FCA 893 at [6]-[8] and [12]-[15] as follows: "[6] Before reaching s 97 itself, ss 55 and 56 of the Evidence Act 1995 (Cth) must be considered. The evidence sought to be adduced from Ms Tongue and Ms Adamopoulos must meet the test of relevance. That is, their evidence must affect the probability of the existence, or non-existence, of a fact in issue. Relevant evidence is admissible unless another provision of the Evidence Act excludes it, or confers a discretion on the Court to do so. [7] Section 97 of the Evidence Act is a contingent exclusionary rule. It excludes the tendency evidence unless the preconditions set out in subss (a) and (b) are met ...It is enough to say that the applicant must persuade me that the evidence is relevant, and meets the criteria in s 97 so as to avoid the exclusion contained in it. [8] Finally, the respondents have relied on the general exclusionary power in s 135 of the Evidence Act. Even if the evidence is relevant, and admissible under s 97, the respondents submit I should exercise my discretion in s 135 to exclude it because the probative value of the evidence is outweighed by the danger the evidence might be unfairly prejudicial to the respondents, or result in an undue waste of time. I consider those submissions in more detail below. ... [12] Putting to one side the question of reasonable notice (which is not in dispute in this application), there are two steps in the application of s 97. First, the Court must be satisfied that the evidence sought to be adduced is within the scope of the provisions. This, in turn, requires the Court to identify: first, the facts in issue in this proceeding in terms of Mr Goodman's conduct and statements; second, the precise evidence sought to be adduced under s 97; and, third, whether it can be said that evidence is capable of proving a tendency in Mr Goodman to behave in the way alleged, or to say the things alleged. [13] The second step is consideration of whether the Court thinks the evidence has 'significant probative value'. Only if the Court forms this opinion of the particular evidence may it be admitted. [14] In determining the second step, the Court must assess as a matter of logic and experience the impact the tendency evidence is capable of having on the existence or non existence of the facts in issue about Mr Goodman's conduct and statements: (see DSJ v Director of Public Prosecutions (Cth) (2012) 215 A Crim R 349; [2012] NSWCCA 9 at [7]-[10]). The term 'probative value' is defined in the Dictionary to the Evidence Act as 'the extent to which the evidence could rationally affect the assessment of the probability of the existence of a fact in issue'. [15] In determining 'the extent' to which the evidence can affect the assessment of which the Dictionary definition speaks, the Court can consider the cogency of the evidence, the strength of the inference or inferences that can be drawn from the evidence as to the tendency of a person to act, speak or think in a particular way, and the extent to which the tendency evidence increases the likelihood that a fact in issue did or did not occur: Jacara [2000] FCA 1886; 106 FCR 51 at [76]. A number of factors have been identified as indicators of the strength of inferences which could be drawn from proposed tendency evidence. They are collected in Odgers S, Uniform Evidence Law (10th ed, Thomson Reuters, 2012) pp 460-461 and deal with matters such as the numbers of occasions of conduct relied upon, time gaps between them, specificity of the tendency evidence, and the degree of similarity of the conduct and circumstances in which it occurred." Background 6In 1989, Mr and Ms Bracamonte carried on the business of a restaurant in Byron Bay. It was situated in a two-storey building, and was occupied by a number of other tenants including the local CES office. In the early hours of one morning, an explosion destroyed the whole building. It appears that someone had attached sticks of gelignite to a structural column in the basement that were detonated with destructive results. 7Mr and Ms Bracamonte were charged with causing the explosion. Mr Thomas was the officer in charge of, or at least involved in, the investigation into what had occurred. Mr and Ms Bracamonte maintained their innocence throughout, and were ultimately acquitted of the charges following a trial. 8Before that occurred, Ms Bracamonte attended the Byron Bay Police Station and spoke at some length to Mr Thomas on 31 May 1989. Ms Bracamonte secretly recorded the conversation that she had with Mr Thomas at that time. Ms Beckett points to what Mr Thomas said to Ms Bracamonte in the course of that conversation as establishing a tendency, or a series of tendencies, on his part that support or corroborate her case in these proceedings to the effect that Mr Thomas fabricated the cases against her. The evidence sought to be adduced 9Ms Beckett did not serve a statement from Ms Bracamonte with the tendency notice or otherwise serve one in advance of her giving evidence. It therefore became necessary for Ms Bracamonte to give evidence before me, subject to the defendant's objections, in order to give content to the process of assessing the evidence for s 97 purposes. This method of approaching the matter was less than ideal, either with respect to its timing in the course of the trial, or to the extent that the defendant was able to know or to understand the evidence that was proposed to be led. That inconvenience was to some extent ameliorated by the fact that Ms Bracamonte had recorded her conversation with Mr Thomas, which is the significant piece of evidence upon which Ms Beckett relies, and which had been in the possession of the defendant for some considerable time. In that sense, Ms Bracamonte's evidence in chief effectively consisted of her identifying the recorded conversation and a transcript of what was recorded, as well as the parties to it. At one stage, a possible dispute concerning the accuracy of the transcription seemed likely, but in the events that have occurred it ultimately passed without comment. 10Ms Bracamonte gave evidence in chief and was cross-examined. That evidence is set out in relevant respects in the First Schedule to these reasons. It will be apparent that Ms Bracamonte's evidence given in this Court, and in particular her cross-examination, was directed quite reasonably to the verification or falsification, as the case may be, of her version of how and in what circumstances the recording took place. Ms Beckett's position is that the recorded conversation itself bespeaks the tendencies for which she contends. The defendant's position is that the recorded conversation has to be considered in a particular context that either destroys or severely constrains its usefulness as evidence of Mr Thomas's character, reputation or conduct, or any tendency that he had, so that in that context or otherwise it has no significant probative value in any event. 11The transcript of the 31 May 1989 meeting is to be found in Tender Bundle Vol I at pages 240-250. That transcript is set forth in the Second Schedule to these reasons. The facts in issue 12The ultimate fact in issue in the proceedings is Mr Thomas's state of mind, referred to in the authorities as his state of persuasion, when instituting or maintaining the prosecution against Ms Beckett. She alleges and must prove that there was insufficient material then before Mr Thomas to warrant setting the processes of the criminal law in motion. In this particular case, Ms Beckett asserts that the subject matter relevantly informing Mr Thomas's state of persuasion included the fact that he knew she was not guilty, for the simple but fundamental reason that he knew or believed some considerable facts that were inconsistent with her guilt. 13The process by which Ms Beckett seeks to prove that compound fact in this case is to lead evidence that Mr Thomas constructed or facilitated the several cases against her by fabricating evidence, threatening potential witnesses and acting in excess of his powers as a police officer in order to intimidate others. That evidence has so far predominantly and understandably come from Ms Beckett herself. That evidence has included material dealing with how Mr Thomas dealt with her in late1983 when her delicatessen in Taree burnt down and thereafter when Mr Thomas charged her with arson. 14The evidence that Ms Beckett seeks to adduce in support of Mr Thomas's tendencies is evidence that she proposes to tender in order to corroborate or support the evidence given by her and others concerning the way Mr Thomas acted as the prosecutor in her case. Context 15I note in passing that the defendant contends that the evidence has no probative value for several reasons, including relevantly for present purposes that it consists of a conversation that was initiated by Ms Bracamonte herself for the purpose of seeking to sound out Mr Thomas about whether or not she could organise some arrangement whereby she would not be prosecuted further if she told the "truth" to Mr Thomas, and implicated Mr Bracamonte in the process. In short form, the defendant says that context is that Ms Bracamonte approached Mr Thomas and requested the meeting with him by asking "What will happen to me if I implicate Ramon?" The defendant wishes to argue that Mr Thomas's conduct cannot be criticised in these circumstances, and for that reason is incapable of amounting to tendency evidence, because his behaviour was reasonable in that context and did not attract the insidious implications for which Ms Beckett currently contends. 16Although it is only early days in this case, and Mr Thomas has not been able yet to provide his side of the story, that suggestion seems unlikely for at least three reasons. 17First, it was suggested to Ms Bracamonte in cross-examination that she asked Mr Thomas if she could speak to him off the record. She was asked, "Do you remember in that period of time, between 22 March and 31 May, speaking to Mr Thomas and saying, 'Can I speak to you off the record'?" It was also put to her that Mr Thomas said, "I have told you what I can do. If you want to talk to me about it, think about it and then come and talk to me about it officially". The burden of that suggestion is that when Mr Thomas spoke to Ms Bracamonte in the recorded conversation, it was an official conversation or interview that was "on the record". If the conversation had in fact been conducted in that capacity, it is remarkable to say the least that there is no express reference in the body of the conversation to that fact, and there is no implicit indication that the conversation was official, for example, by reference to any warning being given to Ms Bracamonte about the use that could be made of anything that she said at the time. There is nothing that appears from the content of the conversation that suggests that Mr Thomas was attempting to take notes or transcribe the conversation in order to facilitate the preparation of a statement from Ms Bracamonte. 18Secondly, the content of the conversation does not suggest that Ms Bracamonte was the person who instigated the meeting, in the sense that she had "thought about it" and had decided to go and visit Mr Thomas officially. Indeed, the opening words uttered by Mr Thomas were, "I'm sorry to inconvenience you", rather suggesting that Mr Thomas was the moving party in arranging the meeting. There is thereafter not a single indication from what was said by anyone that suggests or indicates that the meeting had been arranged by Ms Bracamonte rather than Mr Thomas or otherwise to suit her purposes as opposed to his. 19Thirdly, the general content of the whole conversation makes it plain that Mr Thomas was attempting to have Ms Bracamonte confess to having some involvement in the bombing and implicate Mr Bracamonte as well in return for the prospect of some favourable treatment. Mr Thomas referred on more than one occasion to him helping her if she helped him. However, this was not a conversation in which Ms Bracamonte was telling Mr Thomas anything at all. To the contrary, Ms Bracamonte appears bemused and confused at the suggestion that she knows who was responsible for the attack on the building and consistently denied knowing who was to blame. The conversation is replete with implied threats from Mr Thomas about any number or manner of things ranging from the suggestion that Mr Bracamonte was planning to leave the country without her, to the certain prospect that she would be committed for trial and ultimately convicted, and that she would be shown to be the ringleader and "the painted lady". Mr Thomas offered that he could "guarantee that we can wipe your slate clean". Ms Bracamonte then complained to Mr Thomas, "...but then you said to me, 'tell me everything you know', I did but I got charged anyway." The conversation does not appear to be one in which Ms Bracamonte is hopeful or desirous of telling or giving Mr Thomas anything more than she already has. Discussion 20The recorded conversation covers a series of connected topics in the general setting that Mr Thomas had charged Mr and Ms Bracamonte with causing an explosion in order to destroy their restaurant. 21Ms Beckett has not sought to identify particular aspects or portions of the conversation that are said to evidence a specific or particular tendency, so much as she has sought to suggest that Mr Thomas's modus operandi when dealing with the Bracamontes was in general terms strikingly redolent of the ways in which he also treated her. In this respect, it is important to indicate that in my opinion Ms Beckett has not made out the existence of evidence to support the existence in Mr Thomas of a tendency either to misstate the strength of evidence against a suspect or to initiate proceedings against a suspect without reasonable cause. 22First, whatever else may be said about the manner in which Mr Thomas can be seen to have approached his task on the occasion in question, it is not possible to say that he is misstating the strength of the evidence against Ms Bracamonte. It is undoubtedly apparent that Mr Thomas is speaking in a way that would appear to the uninformed observer to be calculated to overbear her resistance or to intimidate her into believing that she was in a parlous legal position. However, significantly entwined with the way Mr Thomas was proceeding is a conspicuous absence of detail concerning any evidence at all. Mr Thomas's contribution to the conversation is a heavy handed and arguably bullying attempt to convince Ms Bracamonte that she is in trouble without actually producing a single item of credible or factual material to back up his assertions. His behaviour at face value is reprehensible, but I cannot detect an example of him misstating the strength of the evidence. He appears somewhat clearly to have had no evidence at all, a fact that might have been apparent to a person of more robust disposition or a different background to Ms Bracamonte. Statements like "I have a sick feeling that you can write yourself off forever" and "You won't get a job, particularly in business" are the base tools of police intimidation, but they are not connected or concerned in any way with evidence. They are more likely to have been generated by the very absence of evidence. 23Secondly, nothing in the recorded conversation permits or supports a finding of a tendency to initiate proceedings without reasonable cause. The evidence indicates that Mr and Ms Bracamonte were found not guilty at their trial. There may have been a number of reasons for that. It may also be assumed, for the sake of the present argument, that Mr Thomas was hopeful of eliciting or extracting something from Ms Bracamonte that would assist in the successful prosecution of the offences with which she and Mr Bracamonte had been charged. However clumsy, offensive and overbearing his attempts to achieve that outcome might have been, the evidence does not say anything about the strength or otherwise of the case against them. Nor is it possible to infer from what might at one level be considered Mr Thomas's somewhat desperate attempts to gather some inculpatory material against the Bracamontes that he was, or that the case was, without other material fit to go to trial. Unless the evidence were capable of establishing that the case against the Bracamontes was known by Mr Thomas to be without foundation, not merely that it was weak or even that he suspected it was weak, nothing said or done by him during the recorded conversation is probative of the particular tendency contended for. 24Before proceeding to examine the balance of the tendencies alleged to be supported by the conversation between Ms Bracamonte and Mr Thomas, it is important to refer to the material with which it will in due course have to be compared that is already in evidence and which Ms Beckett will contend is relevant to the proof of a fact in issue in the proceedings. The material to which I refer in what follows is only taken from the evidence given by witnesses in court before me. That is for the reason that the documentary material to which I may in due course be entitled to refer in deciding this case has either not yet been settled or remains subject to a contest that I am still considering. It may well be that there is significant evidence of Mr Thomas's tendency to act in a particular way that Ms Beckett will argue is supported by that material as well. Roseanne Beckett 25Ms Beckett gave the following evidence: "Q. What did you observe? A. I could see Peter Thomas being aggressive to Mr Annetts. Q. What did you see? A. He punched him in the chest, punched him back into the chair. ... Q. Firstly, what do you recollect him saying in a phone call to you? A. I was perming someone's hair, I think from memory. It was on a Saturday afternoon. My phone rang, I answered it. It was Peter Thomas, and he told me that I was to come down to the police station. I was terrified of this man. He was talking in a very threatening tone Q. Do you remember what he said? A. He said, 'I want you to come down here to the police station and grace'... something to the effect of 'grace this place with your beauty' or making reference the place was drab or something 'and you come down here'. I felt threatened and intimidated. I was scared of this man, and I said I wasn't coming down to the police station. He said, 'If you don't, I will arrest you'. I hung up. I then rang Maurie Stack, who was a solicitor whom I had known, and was terrified and asked him what I should do and did I have to go down to the police station and how scared I was and Maurie Stack said to me, 'Don't you worry about it, you leave it with me'. A short time after that Peter Thomas phoned me back and was very angry at me, he was very angry and said that Q. Tell us what he said. A. He said that I had caused now a problem between him and his mate Maurie Stack and he was not happy about it. ... Q. At the time of your arrest did Mr Thomas ever show you a warrant to search the premises? A. No, he did not. Q. Were you searched by police? A. Yes, when Mr Thomas came up the hallway he put handcuffs on at the front. He then told them to remove my jewellery. He then directed this female officer to take me into the bedroom and strip me naked and that was visible by all that were there. ... Q. Now in terms of the house we see a number of items on the floor in the photographs, did you remain sitting on that stool during most of the time when the search took place? A. Only when Peter Thomas dragged me to the bathroom. Q. When was that? A. After Joanne Cottee came back from taking the children away. Q. Yes. A. Then she said, 'Look what I have found.' He didn't go to look and he couldn't see from where I was sitting. He just grabbed me by the arm very brutally, he kept saying, he wanted to punch me with a closed fist and he dragged me to the door and said to me, 'What have you got to say about that?' Q. Have you ever seen the pistol that you were shown before? A. No, I had not. ... Q. You were in the cells at the Taree Police Station? A. Yes. Q. Saturday afternoon? A. Yes. Q. What did you see or hear? A. Peter Thomas came to the cell door. He was holding onto the bars and he called my name and he told me what he was going to do to me. Q. What did he say? A. When they found me next morning Q. Just tell us, what did he say as best you can. I know it is difficult. A. He said he was going to do some physical harm to me and they wouldn't recognise me. ... Q. What in the photographs is a matter of the some significance? A. Obviously the propensity of Peter Thomas to manufacture what he wants the scene to look like; if you look at the set of drawers in the main bedroom, normally it is just a normal set of drawers with photographs of the children and normal things on top. But there is one clear photograph of the chest of drawers made to fit his picture that he painted of me, full of alcohol. And in the photograph you can clearly see initially that was not there Q. Mrs Beckett A. And obviously they have been put there. ... Q. The presence of Joy McGregor, your sister, on that night was never raised at the criminal trial, was it? A. I believe so, yes. Q. Certainly Joy McGregor was never called to give evidence at that trial, was she? A. No, she wasn't. She was threatened. ... Q. You were then asked, "What is your correction there?" And you answered, did you not, "There was just Lucy Parkinson, myself and a girlfriend that I took home." Do you remember that? A. It's there, yes. Q. Don't worry about it. You had an opportunity on that occasion to make reference to Joy McGregor if Joy McGregor had been present at the club that night, didn't you? A. Not if she was scared." Peter Caesar 26Mr Caesar was a former colleague of Mr Thomas who worked with him after he resigned from the police force. He gave this evidence: "Q. What did he say happened in Court? A. It was a long winded affair and certain paragraph I wrote in the statement, it was a knife edge and was about the gun and he said when they heard about the gun and there was enough to convict her. Q. Had you ever had any discussion about a gun beforehand? A. He openly told us that he planted a gun on Roseanne Catt. ... Q. What did he say the first time he mentioned it? A. He said, 'It's not a crime for a policeman to commit perjury in court.' ... Q. What did he tell you? A. He said if you're a policeman it's not a crime to commit perjury in court. In a criminal case, if you have to lie, so be it. ... Q. Why did you wait for 10 years before coming forward, sir? A. Well, it wasn't my business and a lot of other people knew the facts as well and no one rung the police. If I rung the Taree Police Station and said, 'Peter Thomas planted a gun', what would have happened? Nothing. People didn't believe me then, some people don't believe me now." Peter Bridge 27Mr Bridge is Ms Beckett's son. He gave evidence that included the following: Q. What did he say about that? A. He said tell me what happened about the rock incident. I told him the right version and then he became aggressive. Q. What did he say? A. He sat on the edge of the desk. I was sitting in a chair. He was screwing his mouth up, glaring his eyes and poking me in the chest and he said, 'Listen here, I've placed enough charges on your mother to put her away for life' ... Q. What else did he say? A. With that he seemed very proud of his accomplishment. ... Q. What did he say concerning Mr Golds? A. He said, 'Shane Golds has told the truth.' Something like, 'That little bastard told the truth.' And he said also, 'You wait till I get hold of that Christopher, that little bastard will be telling the truth too.' Q. What happened then or what did he say then? A. He said 'So, what's the truth?' And I said, 'I've already told you the truth.' And with that he gets upset and he said, 'Listen, if you don't tell Jules what I say, you're going to be... You like your apprenticeship, do you?' I said, 'Yes I do.' He said, 'You can kiss that goodbye.' He said, 'You won't be able to work in this town again. I'll find something each week to charge you with. I'll make your life hell.' He said, 'All you need to do is you do this, write this and you can walk out of here tonight. If you don't, you are going to be charged' and he said, 'Your mother's fucked, but we can save you.' And he said, 'If you don't write this statement I'm going to lock you up tonight and you won't be able to live in this town,' basically. And I still stuck with the truth and he got angry and he said, 'Look, I'm going to give you five minutes to think about it.' And with that he went out and Paget was still in the room standing at the back of the room and he said, 'I'll give you five minutes to think about it', and he said 'I'm going to get another beer.' He was drinking beer while he was talking to me. And off they both went and that's when I sat down and I seen all my mother's belongings on another table in the room and some of which was mum's and some I hadn't seen before. And within probably five, ten minutes later they came back in, both of them, and they said, 'What's it going to be?' I said, 'I've told you the truth.' And oh, I can't remember what was said then. Q. Just take it slowly? A. He got angry. He said, 'You know you are going to get charged and spend the night in the cells.' I said, 'But I'm telling the truth,' and with that Carl Paget had his little two dollars' worth at the back. I can't remember what he was saying, but he was muttering words like bullying me or putting the heavies on me, which was pretty intimidating. I stuck with my story, which I did. With that he said, 'Fuck this, I'm out of here. We're going to the bowling club' or 'the sailing club' or something like that and he said, 'You're going to get charged and that's it.' Q. What state were you in at this stage? A. I was a wreck. I'd only just turned 21. And here I am in a police station, supposedly a safe house getting treated like this. I was in shock. ... Q. The first time that you saw the rock produced at a Court hearing? A. That was in Taree, yes. It was a large football shaped rock. I would say roughly that big. (Witness demonstrated) Q. The size of a football? A. The shape of a football and it was very jagged. And the next time I seen that, I can only recall was at my trial, and it was a lot smaller and a rounder shape but still jagged. Q. I want you to assume that Mary Warwick has said on one occasion that the rock said to have struck Barry Catt had blood on it. Did you ever see blood on the rock that was produced on the first occasion? A. No. ... Q. Is this correct to say, that during the course of the discussion Peter Thomas said to you at least once, if not more than once, something along the lines of 'If you tell the truth, you should be fine'? A. But the truth was his version, what he called the truth. ... Q. Did he indicate to you that Shane Golds had, and these are words to the effect of, Shane Golds had come clean and come out with the truth as to what happened? A. But he did it in a way that the way he was intimidating me is what he did to Shane Golds. ... Q. I want to put to you one further statement, if I may, I am taking you back to the Taree Police Station about the night of 24 August, in the context of the discussion about Peter Thomas saying to you that he wanted you to tell the truth? A. Mm hmm. Q. Did he make this particular statement, 'If you tell the truth you would walk out a free man, you'd be fine'? A. Yes. ... Q. Mr Bridge, you agree that Mr Thomas said to you if you tell the truth you will walk out a free man? A. His version, yes. Q. You agree he said those words? A. Yes, I did. Q. And you told the truth? A. Yes, I told the truth and was charged." Terrence Madden 28Mr Madden worked for FACS. Some of his evidence included what follows: "Q. Had you ever heard of Peter Thomas? A. Yes, Detective Sergeant Peter Thomas was a person that Greg Baggs rang me about because he had some concerns about threats that were made to him. ... Q. Tell us what the conversation was if you would, if you recall it? A. The conversation, the first conversation centred around access to one of the Catt children, Christopher. Detective Thomas wanted access to the child. My District Manager Greg Baggs had briefed me that he had a medical opinion that the child was suicidal and therefore should not be interviewed and I relayed that to Detective Thomas. At that time the child was under a protection order and therefore were we were acting as, what I saw as, loco parentis and we were responsible for the child's well being and we couldn't grant access, so I basically relayed that to him. Q. Was that the end of the conversation or was there more? A. There was a lot of heat in the conversation. ... Q. When you told Mr Baggs that you had an opinion I mean that Mr Baggs had told you that he had an opinion from somebody that Christopher was suicidal and that access would be denied, what did Detective Thomas say to you when you told him that, if anything? A. I can't remember the exact words, but he said words to the effect, whose opinion is that? How qualified is that person to give that opinion? Who is the person giving that opinion? Along those lines. ... Q. Having looked at your statement, did he make some observations about some of the staff at Taree? A. Yeah, in connection with a comment about Christopher he felt there was some sort of conspiracy to prevent him having proper access or to do his job or whatever. That was the implication for me. ... Q. And this conduct on the part of the officers, did he tell you that there might be consequences for those officers? If you look at your statement about the middle of the page? A. Not on page 2. In the first conversation what I have said in the statement is that he said well, I say he said to me, there may be some of the staff at Taree may be involved in a conspiracy to prevent me completing my enquiries and I have said in response. ... Q. Have a look at your statement there. You see the words "This could lead to them being charged'; see that in the middle of the page. I am wondering if he has the right document. May I approach, your Honour? Q. I am directing did he indicate what the nature of the charges might be that might be preferred against officers of your Department? A. To do with the conspiracy is the way I understood it. ... Q. And then did you say something concerning Mr Baggs? A. Yes, I put to Detective Thomas that Mr Baggs had told me that when he told Detective Thomas he couldn't see Christopher that Detective Thomas made certain threats to Mr Baggs. Q. What did Detective Thomas say to that? A. He said again that he would do his job and he would report to whoever he wants to. Q. Did he make some comments about the competence of staff at Taree? A. Yes, he said they were incompetent and that the charges against he said they were incompetent and then related other things about other people. Q. What did he say? A. He said the staff words to the effect the staff at Taree are incompetent, the charges against Mr Catt of sexually abusing his children are incorrect and I, Detective Thomas, have a special brief from a senior police to take over that investigation. ... Q. You said? A. 'Greg told me this morning that you made a number of threats to his staff, that you tried to bounce them, and I feel this is not the right way for our two Departments to work together.' Q. He said? A. 'I have 22 years' experience as a police officer and I know how to do my job. I have certain statements which will back up my allegations against your staff.' ... Q. Did you make a complaint? A. I did. Q. Do you recollect what the terms of the complaint were? A. Basically that Detective Thomas was acting inappropriately, not following departmental protocols and was threatening my staff, who were doing their job. It was along those lines. I don't have the document in front of me so I can't say." Greg Baggs 29Mr Baggs also worked for FACS at the same time: "Q. Could I just take you to page 157. There is a conversation that you refer to following your interviews with Mr and Mrs Newell. You say you've received an unbelievably abusive phone call from Detective Sergeant Peter Thomas, do you see that about .9 or .8 of the page? A. Yes, that's correct. Q. And he said: 'I don't know that I even want to see you now. I can see that you will not cooperate. As far as I'm concerned there is a big cover up. If you're not upfront with me, I cannot work with you. The Department's involvement in this case is questionable, the handling of the case has been questionable. I have statements. Adrian Newell has been working with me. I've been working undercover. I have no link with Barry Catt.' ... ... Q. Mr Baggs, you see the conversation that is about the middle of the page there where he accuses Mr Burgess of a sloppy investigation and sloppy work by the Department and he stated he has 'power vested in me by the Assistant Commissioner'; did you inquire about the nature of his investigative powers? A. It was a general rant, so I didn't sort of. Q. He suggested that ICAC were involved in the case. Did he identify the police at Taree Police Station that he says 'I've got". I don't know what he meant by that? A. No, I didn't identify anybody with him about the general rave. ... Q. He says he was on an arson case and will reopen it? A. He did say that. Q. Do you know which arson case he was referring to? A. I assumed there was one some time ago associated with Roseanne Catt. Q. And he indicated to you that the children would change their story within three days? A. He did say that, yes. ... Q. That conversation, did he tell you in paragraph 36 what he was going to drag you up to the courthouse in what way? Did he indicate charges or A. No, was just going well, it was just ranting. Q. Did he tell you what the conspiracy was that you were said to have been involved in in that conversation? A. No. ... Q. Do you recall a woman named Marie Dawn Whalen? A. Marie Whalen, yes. Q. Do you recall seeing her at the FACS offices? A. Yes. ... Q. And was the evidence you gave at that trial concerning your involvement with Marie Whalen and the Catt children true and correct? A. Yes. ... Q. Go to tender bundle 2 of 3, pages 747 and 748. Do you have that document, Mr Baggs? A. Yes. Q. What does the notification mean? A. A notification of abuse. Q. That's a specific notification under the relevant legislation? A. Under the Act, yes. Q. Was that then the Child Welfare Act? A. What was it called then? Child Protection Act, yes. Q. There is a fax number of both those pages. Does that suggest A. That was faxed to Terry Madden. Q. Was there any reason why that would have been faxed to him and not dealt with at Taree? A. I think because Frank Burgess may have been taking that up in Newcastle. Q. Do you now have any recollection of the identity of the police officers involved in that or that are referred to? A. No. Q. Did you have any further part to play in any further investigation of that? A. No, we were happy that it was referred on to Newcastle to the juvenile section of the police department. Q. In 1989 if under aged Aboriginal girls were engaged in some sort of sexual contact, was that a matter that the Department would have taken action in respect of? A. Oh yes. Q. Did you have anything further to do with Mr Morris? A. No. Q. Did you become aware that he was no longer an Aboriginal police liaison officer? A. Only by hearsay." Tracy Mairinger 30Ms Mairinger's evidence included the following evidence: "Q. The police officers that spoke to you, what did they say to you? A. They basically told me that Roseanne was in a bit of trouble. That she had guns and, and she was trying to kill Barry, which I found outrageous. ... A. Okay. Basically said that if I didn't cooperate with them, I would be in a lot of trouble. ... Q. and if we can just take the first one, 21 March 1990, I took you through the conversation there, prior to you signing those three statements, what was said to you, if anything, by the detectives? A. I was told that if I did not cooperate with them that they would make my life difficult. I signed these papers without really reading or understanding what I was signing because I was afraid. ... Q. What were you afraid of? A. Of mostly of Peter Thomas. ... Q. Did they say anything about you and Roseanne concerning the photos of you in the limousine? A. They accused me of being a prostitute. Q. And did they say anything about Roseanne? A. And they said that Roseanne was my madam. Q. Did you say to them, when they said that, did you say anything to them? A. 'Oh, it's not true.' It was not true, it was not true. That's ridiculous. Q. What else did they say? A. I was basically told that if I did not cooperate, I would I would be in big trouble and I did what I did because I thought my son and my life was in danger. Q. Why did you think your life was in danger? A. Because I was being threatened. Q. What did they say to you? A. They basically just said if I don't help then I won't live, I'll be taken off the face of the earth. That's what he said to me. HIS HONOUR Q. Who said that? A. Peter Thomas. BLACKET Q. Was anything else mentioned about what would happen to you if you did not cooperate? A. That's basically it, if I didn't cooperate then I read between the lines that they would kill me or something, I don't know. Q. Did they mention the charges that had been preferred against Roseanne concerning conspiracy to murder her husband, was that discussed? A. Well, they actually said to me that if I didn't go along with them that they would charge me with helping her. Q. When that was said, what did that cause you to feel? A. I was really scared. I just did what they wanted me to do. ... Q. I want you to assume that is a statement of your sister Amanda Joy Taylor? A. Uh huh. Q. Prior to this morning, had you ever seen or had read to you that statement? A. No. Q. In that statement at paragraph 4 your sister suggested that you and Roseanne and her went out to clubs a lot? A. No, we didn't. Q. Did that happen? A. No. Q. Did Roseanne ever tell you in Amanda's presence what Barry was supposed to have done to the children? A. No. Q. Did she ever say, "He's no good, don't associate with him, he locks the kids in cupboards for days and doesn't feed them, he sexually assaulted the kids, he's no good"? A. No. Q. Was anything like that ever said? A. Not to me, no. ... Q. Do you remember an occasion in March 1988 when your sister visited you at Cowan Road at a time when Roseanne was there; that's the first question? A. No. Q. Do you recall Roseanne ever asking you and Amanda to go for a drive? A. No. Q. Was there an occasion when you drove with Roseanne and your sister Amanda from 2 Cowan Road to 1 Cornwall Street on which occasion Roseanne took an open bottle of wine with her to Cornwall Street? A. No. Q. Did you ever witness on any occasion Roseanne taking a glass out of a cupboard, sitting at the table, pouring wine in the glass, in you and Amanda's presence, and getting two little white tablets out of her bag and putting them in the wine? A. No. Q. Do you ever recollect occurring on any occasion an incident involving a glass of wine with tablets said to have been taken place in the lounge room where Roseanne said, "I hope it kills him"? A. No, definitely not. ... Q. Can I ask you this, did your sister come and live with you at Ingham for a little while after the birth of your son? A. That's correct. Q. Were you aware as at November 1989 whether your sister had ever come to the notice of police? A. My sister did a lot of illegal stuff. I am not 100% sure if she was charged with any of those offences but I know she did run away from Ingham because she did some bad stuff there. ... Q. Can we come forward to the trial of Roseanne. (Witness shown exhibit F). Firstly, is that a document in your handwriting? A. That's correct. Q. Do you remember the circumstances that you came to write that letter? A. Yes, I do. Q. What were they? A. I was told by Peter Thomas I needed to help out more. ... Q. What did Mr Thomas say to you about the statement or the more help that he was going to need? A. He just pretty much said that I needed to come up with something else to help him out, otherwise I would have to face some consequences. Q. Did he tell you what the consequences were? A. I would be taken off the face of the earth, something along those lines. ... Q. Was there an incident of that nature? A. The first part of this letter is true; the second part of this letter is false. Q. What is the part that is false? A. There was an altercation. Dean and Barry didn't like each other, so they didn't really get along. But 'whilst talking Roseanne propositioned Dean', from there down that is false. That was what I made up so that I could help Peter Thomas. ... Q. I'll withdraw the question. Tell me this, do you recall coming down with your sister to a trial in Sydney? A. Yes. Q. Did you share a room with your sister? A. Yes. Q. How long were you in Sydney for? A. I think two days. Q. At the time, was your sister working? A. Not that I know of, no. Q. Where did you stay in Sydney, do you remember? A. We just stayed in a room, in a pub I think it was. Q. Did you notice something about your sister whilst you were staying at that hotel? A. I asked we were in the same room, I noticed that she had a fairly large sum of money, I'm not sure how much but it was quite substantial. She didn't actually tell me where she got the money from. ... Q. Had you ever said to anyone in authority by that I mean the police, a Member of Parliament or the like that the evidence that you had given at the committal proceeding and at the trial was false? A. No, because I was afraid. Q. Because you were afraid. Afraid of Peter Thomas? A. Yes. Q. Because of what he had said to you on 21 March 1990 in Ingham, Queensland? A. Yes. Q. You tell his Honour, do you, that the events of that day and what was said to you on that day were so overwhelming that you remained in fear right up until 2007 or thereabouts, is that right? A. I would probably say right up till today. Q. All right. A. I have been afraid my whole life. ... Q. And it is in that context that you tell his Honour that what was said by Peter Thomas to you on 21 March 1990 had such an impact upon you, is that right? A. Damn straight it did. ... Q. But it remains the fact that a woman you had called 'mum', a woman for whom you had great affection, served a prison sentence from 1991 right through until 2000 or thereabouts and you told no one that your evidence A. I did I didn't Q. at the trial was false, is that right? A. That's true, yes. I didn't think it would make any difference. Just my me. And I was scared for my life. What would you have done? Q. Because of what Peter Thomas had told you A. I had been threatened, yes. ... Q. Let me put it to you as plainly as I can. Peter Thomas was not at the Ingham Police Station on 21 March 1990, was he? A. I thought he was. Yes. Q. Well, you couldn't think he was. You either know he was or you know he wasn't, given the content of what you say Peter Thomas said to you, surely ma'am? A. Well, Peter Thomas did threaten me, I know that. Q. On 21 March 1990 at Ingham? A. I was threatened by Peter Thomas to do whatever he wanted me to do, yes. Q. On 21 March 1990 at Ingham, is that right? A. I can't recollect, no, but I was threatened by Peter Thomas to do whatever he wanted me to do. ... Q. Did you ever see A. I saw Peter Thomas in Ingham. I am telling you the truth, sir. And then I was harassed for quite some time after that. Q. Ma'am, I am A. I can't even remember Carl Paget, okay. I don't want to remember back then. I don't want to remember any of it. Q. Ma'am, you are obviously distressed. A. Because you don't understand. ... Q. You do documents though, don't you? A. I've signed a lot of stuff that I said wasn't true. I admit that, and I know that was wrong. Peter Thomas came to me in Ingham and threaten me. Whether he was in the police station with Carl Paget, I do not recall. ... Q. And that was on the same day that these three statements were brought into existence and signed by you, is that your recollection? A. I signed those documents with Carl Paget. I don't know. I cannot remember. You have to seriously believe me when I say that there's a lot of this stuff that I've tried to forget because it was too distressing. Q. I understand. A. I don't remember a lot. I haven't got a good memory and I can't do dates, all right. I admit what I said in a lot of those statements was false, but I only did what I had to do because I was scared out of my brain. ... Q. Can I put to you the question again. It was not until 2008, that is A. I know where you're going with this, but you're wrong. You are so wrong. Do you know half of my family don't even know what I've been through? My dad doesn't know, my husband doesn't know, my son doesn't know. I've had to deal with this shit my whole life and you can write that down." George Baird 31Mr Baird was a man in his late seventies, who ran a hotel at one time. He said this: "Q. Were you requested to do something by Mr Jones concerning a woman, Marie Whalen? A. Michael Jones rang me, Marie Whalen had made a statement which was done at my place for some unknown reason, and he couldn't contact her, and he asked me, could I go into Taree, call in and see her, and ask her to contact him for some of the statements she made. Q. What did you do then, following that discussion with Mr Jones? A. I don't know whether it was the next day or a couple of days later but I did go in there one morning, had to go to Taree to get my stuff to the tavern, and I called in to see Marie Whalen, and I knocked at the door, she came to the door, she was in her dressing gown, and I told her what I want ... Q. Following that conversation, did you go away for a period of time? A. Yeah, she told me to come back in an hour, an hour and a half. ... Q. Did you return? A. I returned about an hour and a half later. Q. What happened? A. I as I drove into the street which was a cul de sac, one car pulled up in front of me, and another car pulled in behind me. Q. What sort of vehicles were they? A. Both unmarked, both unmarked Commodore cars. Q. Did the persons identify themselves to you or did you recognise them? A. They did make themselves known but I did know one police officer there from Taree. Q. Who was that? A. It was Ian Young. He used to be in the was in the drug squad there. ... Q. At that stage, were you advised as to why you were being placed in a police car? A. They said I was under arrest for, what was it, interfering with a Crown witness. ... Q. At that stage, were you aware that Marie Whalen was said to be a Crown witness? A. No, I was not. " Lucynne Cooper 32Ms Cooper formerly gave evidence under the name Parkinson. She said the following: "Q. Mrs Cooper, we got to the door of your premises that gentleman was there, who you came to know to be Vernon Taylor, what did he say to you after you invited him in for a cup of tea concerning the topic of Mrs Catt? A. He asked me asked me if I would change my statement that I gave to Michael Jones. Q. Did he say anything to you about A. Oh yes. Q. Before you got to that topic were there other discussions about that? A. Telling how Barry Catt was his friend and that Roseanne was just a blow in, was just causing trouble and good old boys all stick together. ... Q. As best you can, and I know it's a long time ago, can you put it into I said, he said when you were discussing what transpired in the conversation between you? A. I asked him, how was his mother. He said his mother was fine and he said, I I've lost 'I have been sent by Adrian Newell to see if you would change your statement concerning James Morris.' ... Q. Don't tell us if you were surprised, shocked. Just tell us what you said when he asked you this, what did you say? A. What did I say? I said to him that, no, that I was there that night and that it didn't happen, what he was insinuating. ... Q. Did you see Mr Taylor again? A. Yes, I did. Q. Do you remember how long after the first meeting? A. It would've been about three or four days later. Q. What did he say to you on this occasion? A. He asked me whether or not I had thought about our last time he saw me and I said, "I'm sorry I've been so busy, I can't think about it" because I was on my way out at the time. Q. Right. Did you have any discussion at all with him concerning your previous discussion about changing your statement? A. He did call me later, about a couple of days later he called me and asked me, did I have time to think about our previous discussion? I said, yes, and I was not going to change my statement, that I wasn't scared of anyone, that what I knew was the truth and it did not happen because I was there that night." Michael Richardson 33Dr Richardson is a psychiatrist who treated Barry Catt in the late 1980s: "Q. Doctor, I want you to assume this, it appears in Detective Peter Thomas's duty book for 30 March 1990: "2 Winter Street re Dr Richardson not available til 2pm." Then later on that date: "Then to 60 Winter Street 7.30pm to see Dr Richardson re statement of Dr Sandfield and two reports of his." Do you remember seeing Detective Thomas on that evening? A. Yes, I do. Q. What was the nature of his request? What did he say to you and what did you say to him? A. He inferred that I had been- ... Q. Don't worry about the implications, it might be apparent, don't worry, we only need to know what was said. A. All right. He told me that criminal charges might be pressed against me for changing my medical records in relation to Barry Catt. Q. When we are talking about "medical records" was that a reference to the documents that we have already discussed at 301 and 339? A. That's correct. Q. What did you say when he said that to you? A. I simply said, "That wasn't the case." And it was perfectly legitimate for me to change my medical records to update them. Q. What was the basis for the change in entries that you did make? A. I just was more aware of diagnostic and fact in relation to the patient. Q. Did he tell you what he was going to charge you with? A. He said that I would be charged in relation to criminally changing a medical record that there was no grounds for such changes. Q. What was his demeanour when he said this to you? Was he A. He was threatening, walking around my office, ignoring me a lot of the time, examining what was in the office, often with his back to me and then he would I was sitting down and he would come and stand over me. ... Q. Are you able to say whether or not some or any of the lithium levels on that page at 319 are within normal range or abnormal, or can you tell us anything about them? A. I certainly can. There none of them are in any sense high or toxic, and some of the levels are truly low and out with the normal therapeutic range which would lie between about 0.5 and 1.2 3 4." 34It is important to observe that this evidence will in due course be the subject of competing submissions about its reliability in varying degrees and for a host of competing reasons. There may also be further or other evidence yet to be given or to which I have not made specific reference above. In referring to it in these reasons I am not intending to express or indicate a view about this evidence, or any of it. At face value, however, I discern that it is material upon which Ms Beckett will seek to rely to support her case, inasmuch as it evidences the existence of a tendency or a series of tendencies that are also discernible or manifest in Ms Bracamonte's evidence and in the recorded conversation. Significant probative value 35I consider that the evidence in the form of the recorded conversation will have significant probative value. I consider that Mr Thomas's words to Ms Bracamonte on 31 May 1989 will significantly affect the assessment of the probability of the existence of a fact or facts in issue. The evidence already given, if accepted, suggests that Mr Thomas has from time to time placed pressure upon certain individuals to strengthen, which includes to change, their evidence. It also supports the contention that Mr Thomas has improperly used, or threatened to use, his power as a police officer and to act in excess of those powers. 36It is timely once again to recall what the High Court said in A v New South Wales [2007] HCA 10; (2007) 230 CLR 500 at [71]: "[71] ... If the plaintiff alleges that the defendant prosecutor did not have the requisite subjective state of mind when instituting or maintaining the prosecution, that is an allegation about the defendant prosecutor's state of persuasion. The subject-matter of the relevant state of persuasion in the mind of the prosecutor is the sufficiency of the material then before the prosecutor to warrant setting the processes of the criminal law in motion. If the facts of the particular case are such that the prosecutor may be supposed to know where the truth lies (as was certainly the case in Sharp v Biggs) the relevant state of persuasion will necessarily entail a conclusion (a belief of the prosecutor) about guilt. If, however, the plaintiff alleges that the prosecutor knew or believed some fact that was inconsistent with guilt (as the plaintiff alleged in Mitchell v John Heine) the absence of reasonable and probable cause could also be described (in that kind of case) as the absence of a belief in the guilt of the plaintiff." 37In this case Ms Beckett alleges both that Mr Thomas knew where the truth lay and also that he knew or believed considerable facts that were inconsistent with her guilt. That is because, so it is alleged, Mr Thomas was in effect the author, whether alone or with the assistance or compliance of others, of the very information in question, and that the behaviour and conduct evidenced by the recorded conversation was a discrete example of his stock in trade for that purpose. Whether or not Ms Beckett is able ultimately to make out that case remains to be seen. At this point in the proceedings, however, the evidence of the recorded conversation appears to me to be strikingly probative of the tendencies that Ms Beckett asserts are important in establishing her case. In short, it has significant probative value. Unfair prejudice etc 38The defendant contends that I should in any event exclude the evidence in accordance with a statutory discretion to do so. Section 135 of the Evidence Act 1995 provides as follows: "135 General discretion to exclude evidence The court may refuse to admit evidence if its probative value is substantially outweighed by the danger that the evidence might: (a) be unfairly prejudicial to a party, or (b) be misleading or confusing, or (c) cause or result in undue waste of time." 39I do not understand that the defendant contends that the evidence is or might be misleading or confusing or that it might cause or result in an undue waste of time. Indeed, the evidence is far from the former and, subject to these reasons, has already been given. 40Nor am I satisfied that the evidence is unfairly prejudicial. The whole of the case mounted by Ms Beckett is pointedly and unambiguously directed at the character and characteristics of Mr Thomas in his capacity as the prosecutor in the proceedings against her. None of Ms Beckett's allegations is complimentary of Mr Thomas. I am led to believe that Mr Thomas is still alive and that there is some prospect that he will give evidence in these proceedings. I am accordingly unable to discern the existence of any prejudice, unfair or otherwise, that may be occasioned by the reception into evidence of the somewhat limited and confined material generated by Ms Bracamonte's conversation with him at the police station in May 1989. Indeed, the very fact that he was a party to the conversation suggests that he will without difficulty to him, or prejudice to the defendant, be able to accommodate any issues that might arise from an exploration of what transpired at that time. Conclusion 41In these circumstances I propose to admit the evidence given by Ms Bracamonte in this Court before me on 18 August 2014 contained in the First Schedule and the transcript of the recorded conversation between her and Mr Thomas on 31 May 1989 contained in the Second Schedule. ********* FIRST SCHEDULE "BLACKET: Would you tell the Court your full name, please? A. My name is Crista Bracamonte. Q. In 1989, were you known as Crista Van der Merwe? A. That's correct. ... Q. Were you and your now husband Ramon Bracamonte the operators of a restaurant in Byron Bay, in a building that also housed the CES office? A. That's correct. Q. Where did the restaurant operate? A. The restaurant was on the top floor. Q. Is it a two storey or three storey building? A. It's a two storey building. Q. With a car park underneath? A. That's correct. Q. Do you recall an occasion in early 1989 when you were arrested at home? A. I certainly do. Q. What happened? ... Q. Ms Bracamonte, what happened on the day of your arrest? A. We were bundled into the car and taken to the police station to be charged. At the house, obviously the police collected various items and took us to the station. Q. Sorry, they collected various items from your house, is that what you're saying? A. That's correct. ... Q. Was any property removed from your house? A. Yes. Q. What sort of property what was taken? A. For example, a diary that my father gave me, some photographs and the various things. Money was taken from the restaurant, pots and pans. Q. Sorry, we'll come to the restaurant in a minute. A. Yep. Q. You say a diary. What was your father's occupation? A. My father was a mining consultant, and the diary was, he gave me the diary and it had "ICI" on it, it was a mining diary. Q. Was it used as a personal diary by you? A. I hadn't written much. He gave it to me but I'm hopeless at using diaries but it was just lying around the house. ... Q. You were taken and charged with your husband, sorry, then your de facto, you were charged in respect of a bombing at the restaurant? A. That's correct. Q. Did you become aware of materials being removed from the restaurant by police? A. That's correct. Q. What was taken? ... Q. Were items taken from the restaurant? A. That's correct. Q. When were they taken? A. They were taken at the time that we were charged. Q. Were you charged in respect of items removed from the restaurant? A. That's correct, we were charged with stealing. Q. What were you charged with stealing? A. Stealing pots and pans, crockery, cutlery, glasses. Q. Were you given bail? A. We were given bail and had to report to the police station on a weekly basis. ... Q. Did you get back some of the items that had been removed from police? ... HIS HONOUR Q. Did you get some? A. That's correct. BLACKET Q. How did you manage to do that? What did you have to do? A. I had to prove that I'd paid for the items, and I showed them the receipts which I wanted to do initially before they charged us. I said I had the receipts. Q. Who were the policemen that you spoke to that you told at the time of charging that you had receipts? A. Peter Thomas. Q. Notwithstanding your advice, he took the items anyway. Is that what you're saying? A. That's correct. ... Q. Who took the items from the restaurant? A. Detectives, it was Thomas and Connolly, and there was a local officer from Byron Bay as well. Q. You told us that you had to report weekly for bail, is that right? A. That's correct. Q. Did you, at some point in time in 1989, take a tape recorder to the Byron Bay Police Station? A. That's correct. Q. Why did you do that? What was the reason for you taking your tape recorder? A. I did it to protect myself. Q. How did you come to be attending the police station? A. I had to go and pick up some goods from the police station, and I made a telephone call to arrange to go and pick it up, and at that time, Detective Thomas picked up the phone and he said, "Come to the station and I want to have a chat with you". Q. Had you previously had any chats with Detective Thomas when your partner Ramon was not present? A. That's correct, he escorted me to the restaurant at that time. Q. When? A. Before I went to the police station to pick up the goods, and on occasion where he came with me to the restaurant because he wanted to have a look at the diary. I had a diary that I used, a booking book. Q. Do you know what he wanted to look at the book for? A. He indicated, he told me that we were not busy, and I indicated that we had forward bookings. Q. So he attended and you showed him the book, is that right. A. That's correct. Q. While you were there on that occasion, did he have any conversation with you concerning Ramon? A. He certainly did. Q. What did he say? A. He indicated that he doesn't know that I was involved but if I implicated Ramon, that they will protect me and they will drop the charges against me. Q. What did you say when he said that? A. I said we were innocent, that we were not involved, and I had nothing to implicate Ramon. Q. When you had this subsequent telephone conversation with Detective Thomas on the occasion that you went down with a tape recorder, do you remember whether that was before or after your committal proceedings took place? A. That was before the committal proceedings took place. Q. What happened when you arrived at the police station? A. I was questioned by Thomas, we were going to a little room, and I had my tape recording in my bag and I had it switched on, and we then had a conversation that you have the transcript of. Q. That's at 240 of the plaintiff's tender bundle, volume 1. You have a copy of that transcript in front of you, is that right? A. It's in my handbag. Q. You've seen it this morning, is that right? A. Yes. ... Q. I show you MFI 25. Was that the tape recorder that you took to the police station? A. That's correct. Q. With a tape inside it, is that right? A. Yes. Q. Did you prepare the transcript of that tape? A. It was prepared through my solicitors. Q. Who was that at the time? A. It was Harry Smith and we had Mr Balzer, Ray Balzer. HIS HONOUR Q. Had you listened to the tape and compared it to the transcript? A. I have but years ago. I haven't really gone through the tape again. Q. No, but did you do it at one time? A. I did. .... Q. Was the transcription an accurate version at the time you listened to it, of what was said at the police station? A. Yes, that's correct. Q. Between you and Detective Thomas? A. Yes. ... Q. Did Detective Thomas ever say anything to you on that topic? A. He did, he basically indicated to me that ... Q. When did you have the conversation with him? A. We had the conversation at the police station even in the tape talking about the state of, there was he got involved in my husband's Family Court matter, and talked about the state of our house including the material, and that's how it was discussed in that context. He used that against my husband. Q. Was there any such material in the house to your knowledge? A. No. Q. During the course of the discussion that you had with Detective Thomas, he suggested that you had committed fraud. Do you remember that? A. Yes. Q. That you somehow cooked the books of the business? A. That's correct. Q. Did you feel threatened in any way when you had that conversation? A. I did. He also inferred that if the Court doesn't find me guilty, there's a lot they can do, he could shake the lights [sic, life] out of me. ... Q. In respect of the stealing charges, what happened to those stealing charges that were against you, stealing items from the restaurant? A. They were dropped. Q. At what stage? A. Before the committal hearing. Q. At your trial, did Detective Thomas give evidence? A. He certainly did. Q. At what point in the trial? A. That was at the committal. Q. Sorry, at the committal, yes. You had a hearing without a jury in Sydney, did you not? A. That's correct. Q. Judge Harvey Cooper, is that right? A. Yes. Q. Did Detective Thomas give evidence at that trial? A. He did. Q. Are you sure about that? A. Well, I will be honest with you, it's been 25 years. Q. All right, okay. A. So I know it was thrown out, but it was Q. Was there an application made by your legal representative for costs of the proceedings? A. That's correct. Q. And this followed your acquittal, is that right? A. Yes. ... Q. At the time of your arrest, you mentioned there were Connolly, Thomas and another police officer from Byron Bay? A. That's correct. ... Q. MACONACHIE: 25 years is a long time, isn't it, Mrs Bracamonte? A. That's correct. Q. You were asked by my learned friend a few minutes ago whether or not Detective Sergeant Thomas gave evidence against you at your trial, do you remember that? A. That's correct. Q. And you very quickly said, "Yes, he did", didn't you? A. I assumed committal trial. Q. No, you were asked whether he had given evidence at the trial and you were very quick to say that he had done so, weren't you? A. That's correct. Q. And it required your senior counsel to ask you the question, "Are you sure about that?"; remember him asking you that? A. I certainly do. Q. And then you, as it were, stumbled across a reference to the committal hearing and said, "25 years ago, it's a long time". Do you remember that? A. I do. Q. You were very quick to try to tell his Honour anything you could which was favourable to your view of things and unfavourable to anything propounded by Detective Sergeant Thomas, would you agree with that? A. I agree. Q. Just one or two questions to try and get the chronology right in my head, if I can be indulged for a moment. What was the date of your arrest? What was the date of your arrest when you were bundled into the car and taken to the police station? A. To be honest with you, I it was not in May. All I know, I was in the police station in May. I cannot recall the exact date. Q. Was it in February? A. It sounds right. Q. No, I don't want you A. Sorry, sir, I cannot recall. ... Q. I will put this to you as being a matter which I assert is the fact and I ask for your response: Did you speak with detectives on 22 March 1989 when a written record of interview was brought into existence? A. Yes. Q. Now let me come to another matter, if I may. It was the 31st of May that you saw Detective Thomas and secretly taped the conversation, is that right? A. That's correct. Q. Between 22 March and 31 May, did you have any other conversation with Mr Thomas? A. At the restaurant, yes. Q. When did you have a conversation with Detective Sergeant Thomas between 22 March and 31 May? A. I do not know the exact date after this period of time. Q. Apart from having a conversation at the restaurant in that period of time, 22 March to 31 May, did you have a conversation with Detective Sergeant Thomas at any other place? A. No, it was at the restaurant. Q. And you have a clear and distinct recollection of there being only one conversation between 22 March and 31 May with Mr Thomas and that was at the restaurant, is that correct? A. That's correct. Q. That's wrong, I suggest to you, ma'am? A. I have been at the police station on a weekly basis. It is quite possible that I have had a conversation with him when I went inside, but that's the one that I can recall after 25 years. Q. You were quite categorical a moment or two ago to say that there was only one conversation, weren't you? A. There was one conversation at the restaurant and there was one conversation at the police station. Q. And that A. That was the day when the recording took place. .... Q. You told us in your evidence in chief that you determined to use surreptitiously a tape recorder to protect yourself; do you remember telling us that? A. That's correct. Q. You then said, after telling us that you had determined to protect yourself, or that was the purpose, you said you made a telephone call with the intention of collecting some goods that were yours? A. That's correct. Q. And that was after you had determined that you would use a tape recorder to protect yourself, is that correct? A. No, no. The conversation when he said he wanted to have a chat with me, at that stage I felt it was necessary to protect myself and the only way that I could do it was to record the conversation. Q. Before you determined that you would take the tape recorder and record the conversation, did you take any legal advice? A. No, I did not. ... Q. Did you know in 1989 that the taping of conversations without the knowledge of the person on the other side of the conversation was regulated? Did you know that? A. No. But at the same time I would have done it even if I knew it was illegal because what he's been doing to me by charging me with something that I didn't do and by telling lies about me has affected me so much that I felt I had to do that this man was not normal and I had to protect myself. Q. Now, let me take you to the subject matter of the tape recorded material. The essence of it is, would you not agree, that you should give up your husband and you should, as a result, get some kind of protection. That was the burden of it, wasn't it? A. Yes, I had to implicate my husband. Q. Yes. Did that just come out of the blue on 31 May 1989 or was there something that happened beforehand which led to that conversation? A. The conversation Thomas had a conversation with me at the restaurant prior to the 31st of May where he already said to me if I give up my husband and if I give him evidence, then he will not charge me. Q. And did that come from Detective Thomas without any prior discussion? A. That's correct. It came from him. Q. So you were in a business relationship with Mr Bracamonte at the time, weren't you? A. That's correct. Q. And you were in a romantic relationship with Mr Bracamonte at the time? A. That's correct. Q. And that ultimately ended not ended turned into a relationship of marriage, is that correct? A. That's correct. We are still married. Q. Yes, indeed. When was the first time you ever saw Peter Thomas? A. When I was arrested. Q. Yes. And you made it clear to him, did you not, that you were in a business relationship with Ramon Bracamonte at the time of your arrest? A. Yes. Q. And you made it clear to him, didn't you, that you were in a loving relationship with Bracamonte at the time of your arrest? A. That's correct. We were living in the same house, on the same room, in the same bed. Q. I know, and I don't want to move into your private affairs unnecessarily, ma'am, I truly don't, but this is a man that you had seen for the first time on the date that you were arrested, correct? A. Yes. Q. You told him in no uncertain terms that you were in both a business and a loving relationship with him, correct? A. Yes. Q. And do you want his Honour to understand that you say that without more, he put to you that if you gave up this business and life's partner, you could get some kind of immunity? A. Well, he basically asked me for evidence against my husband. Q. That is not the way it happened at all, is it, Mrs Bracamonte? A. It has happened that way. I object to you saying it didn't happen that way. Q. Perhaps his Honour is unfamiliar with the detail of this event but it involved, did it not, serious damage to a building in which you and Mr Bracamonte carried on the business of a restaurant? A. That's correct. There was a bombing. ... Q. You were aware, were you not, shortly after you were arrested, that the building in which you and your husband carried on the business of a restaurant had been deliberately damaged by somebody strapping gelignite to the foundations and causing the gelignite to explode; you nude knew that, didn't you? A. I think the whole of Byron Bay at that time knew that and there was newspaper articles and there was also somebody that claimed responsibility that they had a grudge against the CES. Q. Well, thank you for that. You knew, did you not you knew, did you not, that there had been an attempt made to destroy the building using gelignite; you knew that, didn't you? A. Yes. Q. And you knew that it was a very, very serious matter? A. That's correct. Q. You knew that, didn't you? And you knew from your discussions from the moment of arrest with Detective Sergeant Thomas and others that you and your husband were suspected suspected of being involved in the cause of that damage; you knew that, didn't you? A. I was told that, yes. Q. And that was a matter of great significance to you, that you were suspected of being involved, do you agree? A. That was horrible. Q. Did you see Detective Sergeant Thomas at Byron Bay Police Station between 22 March and 31 May 1989? A. I do not recall on how many occasions I have seen him but I have went to the police station once a week. Q. Yes? A. So I would guess I would have seen him. Q. Do you remember in that period of time, between 22 March and 31 May, speaking to Mr Thomas and saying, "Can I speak to you off the record?" A. That I can tell you is absolutely false. That is definitely not true. Q. Do you remember using words like that in the presence of a Detective Connolly? A. No, I do not remember. Q. I suggest to you that in response to you saying, "Can I speak to you off the record?", Mr Thomas said, "What about?" A. I think that's a lie. Q. Yes, and you said, "The bombing of course". Do you remember that? A. No. That is a lie. Q. And Thomas said to you, "What about the bombing, Crista?" A. That is a lie. Q. Or, "What about the bombing?" A. That is a lie. Q. You said, did you not, "What would happen to me if I was to give evidence against Ramon?" Did you say that? A. No. I did not. Q. Did Thomas say: 'That's not a matter for me. It would depend on what evidence you can give and on your own involvement. I can apply for immunity from prosecution for you.' Was that said by Thomas to you? A. No, the only conversation I had is the one on the tape that really contradict what is being said there. Q. You said, I suggest to you, "What's the worst that can happen to me?" and Thomas said, "It's not a matter for me. If you give evidence that assists the Court I am certain it would be taken into consideration". Was that said? A. No, it has not been said. Q. Did you say, "You know, you were right, we weren't at home at the time of the bombing"? A. No. Q. Did you say that? A. No, I definitely did not say that. That is a lie. A blatant lie. Q. Thomas said, "What are you saying to me, that you did it and if you give evidence against Ramon what can we do for you?" Did he say that? A. No, that is a lie. Q. Did you say, "No, I'm not saying that"? A. That is a lie. Q. Thomas said to you, I suggest, "I have told you what I can do. If you want to talk to me about it, think about it and then come and talk to me about it officially". Did he say that? A. That is a lie. Q. And you said, "I will"? A. That is a total lie. Q. It is in that context, isn't it, Mrs Bracamonte, that on 31 May 1989, you went to the police station, spoke to Sergeant Thomas and taped what was said between you; that is the context, isn't it? A. The context that you put forward to me is not what happened. I totally disagree with that conversation. The conversation that was at the restaurant is really in line with the conversation that I recorded on tape and if you refer to that conversation that was recorded, it infer that he has already tried to make an offer to me before. Q. Mrs Bracamonte, when you first spoke to police, you told the police that at the time of the bombing, you were at home? A. We certainly were. Q. You told them that? A. Yes. Q. You said to him, Thomas, on the occasion to which I refer, "You know, you were right, we weren't home at the time of the bombing"? A. That is a lie. Q. Did you have a neighbour at the place at which you lived? A. We did. Q. Did it become known to you that he told the police something to the effect that your little car had left home at around about the time or shortly before the bombing occurred? A. No, that's not correct. The only thing I know there was a neighbour that basically said that they saw the car and we never left. I haven't heard any of that evidence. We didn't. ... Q. It became known to you, didn't it, in the period between 22 March and 31 May, that the police had received information to the effect that your car was not at home at the time of the bombing? You came to know that, didn't you? A. Thomas inferred that somebody saw a silver car in the vicinity of Byron Bay. Q. Yes? A. But it was not identified as my car. Q. Yes. But a car similar to yours, you understood, had been reported to the police as being in the presence in the area of the bombing at or shortly before it occurred, is that correct? A. Thomas indicated that, yes. Q. Yes, all right. Now, that conversation at Byron Bay Police Station took place on 31 March (as said) 1989, didn't it? A. The tape conversation? Which conversation are you referring to? Q. No, I am sorry, I had misled you and I apologise. The occasion on which you said to Mr Thomas, "Can I speak to you off the record?", and you will recall I put that to you and a number of other propositions? A. Yes, and I keep on saying to you I have never had a conversation with him where I have asked to speak off the record to him. ... Q. It was in the context of you having said to Detective Sergeant Thomas, "What will happen to me if I implicate Ramon?" that your conversation of 31 May took place. Do you agree with me or not? A. I I disagree strongly." SECOND SCHEDULE "C - Hi, how are you? T - I'm sorry to inconvenience you. C - That's all right. (walking to Detective's Office) T - How have you been? How's business? C - Oh, up and down. One day busy, the nest day quiet, but we've been managing. Pardon. T - Are you still open on Sunday's? C - No. Um, It's hard mate, if the weather is good we work, if the weather is bad we don't work. T - How's Ramon going? C - He's been good. Haven't had any problems actually. T - I've been talking to his ex-wife. C - Um. T - She seems like a pretty decent lady. C - You'd probably know her better than I do. T - You haven't had any other thoughts about Ramon? C - Pardon - In which way? T - What I told you is the truth. C - What do you mean, how can you say in terms... with Ramon's wife? T - She said when he became uninterested with her is when her father said "no more money". C - Did her father give Ramon money? T - Her father. They're quite comfortable and that's all she said, he wanted to marry her for was the money. The father indicated that he wouldn't give her any more money. C - Her father doesn't get along with her. He has never seen her for years. T - You don't give up. You haven't given any consideration to anything I have said. C - I'll give it some consideration, but the things that you and Sgt. Tutt told me about Victoria, things that she was a prostitute. T - Yeah I know, Ramon told us that, but that's not true though. She's a very nice lady. She's a VERY nice lady. C - In terms of the Restaurant, even when El Catalan, I ask Ramon, Victoria's father never give Ramon money. That's before I even came into the picture. He wasn't even aware that he had any money. T - I've made a few enquiries since I saw you last and I know alot about you. I've been to Sydney on a number of occasions. I've talked to a lot of people. You know this bloke's got you into that much strife it's a joke. I know why he didn't hand his passport in. I've spoken to the Spanish community. I've spoken to some very close friends of his and he made he was getting ready to go. Nodoubt about that. We've made it a bit harder for him now because he hasn't got a passport. His Solicitor is in the shit as far as I'm concerned because he was in Court and he was directed to give that passport up and he's had that in his safe all the time. C - But that was when apparently Victoria was concerned about her child because they had to take the child off the passport. T - Yeh but he was directed in the Court to give his passport up. Harry Smith was in Court when that was done and he never did so. Now his Solicitor is in breach of a very, very, very serious trust and when the court finds out that he has, at all times - it was only after he was locked up that it was produced. He could very well find himself struck off the list. The Court regards this very, very seriously. Especially a person with trust like a Solicitor, who was present when the conditions of Bail were made to surrender his passport and this bloke's got it in his safe. He should have hot-footed it back to his office and turned that thing up straight away. It was only that I found out that he had a current passport, that we became aware that there's, now a passport involved. Why do you think he did that? C - The passport? T - Yeah. C - No I never. T - Did he give any consideration to what money ....... going? C - Well, it would be hard to understand .... because the thing was that they wanted to take the child off the passport for the custody case. I can't give you anything on that, because I really don't think Ramon has the money to go anywhere. T - That's the only reason he's hanging around? C - No, I'm not say that either. He's here because he's committed just as I am, to make the restaurant work. T - How's your dad been? Is he still propping you up? C - He's good. He helps me when I need and he has given us seme money. T - How many nights a week are you trading? C - Pardon, we are trading six (6) nights. T - Are you? C - Yeah, we have say twenty (20) people on Thursday nights. It's very up and down. One night it could be six (6), the next night you could do none, the next night you could do twenty (20) and we've been going around thinking we've beent he only one's that have been quite, but everyone's quite. T - Have you ever given any thought to this? Did I ever say this to you. You help me and I'll help you. You know what's going to happen. I believe that we'll go ver close - I believe there will be no doubt that you won't be committed to trial on this bombing. I don't think there's any doubt about it. C - What do you mean by "If you help me I'll help you"? . T - Since I spoke to you last, your vehicle has been sent around the time, by two people. C - Our vehicle? T - I's say, they say. C - There are a lot of Honda Civics. T - Both people know you and they say it's your vehicle. Given it any consideration. What did I say "You help me and I'll help you". I know, I don't think there's any doubt that we're right. C - Like you and Sgt. 'Tutt will be good to me if I can tell you everything I know. You would not charge me, but you charged me. T - Tell us everything? No, no, no, no, no, no. You know who did it. C - I really don't. T - Ramon did it. Ramon did it. There's no doubt in the world about that. Now I don't know whether you were with him or went with him. I've got an idea that you might have helped him and I think I can er.. I'm going to make the same deal with them very shortly. C - With them, what are you talking about? T - Well I was going to say to them "You might find yourself standing in the dock beside these two people if my information is correct if you tell me what you know about it - if you give Ramon up, I'll look after you. I hope they don't give you the same and I hope they don't sign. Ramon 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. C - I knew about it? T - You know what - on your figures, I can show you where you doctored the figures. When all that goes before the Court, you're going to be, you're going to be the ringleader of it. I've got a statement from an Accountant. You know, you're in heaps of big shit Christa, I'll tell you now. C - I haven't done anything. T - Oh I don't agree with you. The whole thing's been set up to defraud the Insurace company and you play a major part in it. You had increased the insurance. You doctored the books. I've got your real figures on one page and a doctored page on the next one and a set of doctored ones on the next. You gave me those figures. Ramon's a very quiet and very clever bloke, but I know nothing about that, Christa knows all that. C - Because I've always done the figures? T - You're not going to sit there and tell me that you haven't doctored the figures, are you? C - That's my private books. T - They're not private anymore. They've become, they're going to become the property of the Court. I'm having independant forensic Accountants looking at them and they will tell me exactly what's ... backwards. At the time of your increase of loss of profits, you were losing Eight Thousand Dollars ($8,000.00) a week. C - Eight Thousand Dollars ($8,000.00) a week? T - Minimum. C - So we haven't done the figures the same way. How you going (new voice). C - Good thank you. Well can I talk in front of him or... T - Yeah. C - Well, you tell me more about the deal. T - Well what You're going to do - the deal is this - you can walk out if you me"Ramon up. That's it. C - How can I say, I mean T - You know what I mean. C - I don't know that .. T - He even said to a person, "We're going that bad," I will cause a calamity". C - Really? That wasn't said in front of me. T - Mate, he has thought about it. He has said it before. He has said it to people who are allegedly his friends, are the first people to say to us, Ramon has done it and he's thought about it. He's taken you in. He's obviously taking you in. The only way you can get out of it, is to give him up. C - That is? T - That's the deal. C - That's the deal right? How can I know that what you're saying now today .. T - You're going to have to take my word for it. C - Right could you. I mean since I'm already charged, could you? Um ... T - Certainly, I will go to the Court and say look .. C - 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? T - This is what I can do. I can apply to the AttorneyGeneral, because you've given me information leading to the conviction of the appropriate person, to have your matter squashed. C - Go on. T - 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. C - Can you tell me what his ex-wife had to say? T - His ex-wife is a very lovely lady. C - I've only seen the other side of her. T - Oh, she's lovely mate. She's a very nice person. C - Basically me .... T - His ex-wife told me about him - that's another matter I want to talk to him about. He had in insurance job on a motor car. C - On a motor car? T - A Six Hundred Dollar ($600.00) motor car which he got Five Thousand Dollars ($5,000.00)for. C - Tell me more. T - Well you know all about it - what he was going to do. He was going to take it out on the road and run off the road and claim the Insurance. C - What I know, is that he had a heart attack, nearly had a heart attack. T - Bullshit. C - It was told to us by the hospital that he took Codral Forte and blacked out. T - A very prominent member of the Spanish community said that Ramon had said there is no doubt, Ramon did do the wrong thing.... C - Could you give me names, or? T - I don't want to disclose them at the moment. C - I know .. T - He was the bloke also who alerted me to the fact that he was going to piss off, take off from the country. C - That's interesting because um... Really, honest I don't know anything about that. . T - He's buggered now because he hasn't go his passport. C - Pardon. T - He's buggered now because he hasn't go any passport and he's got no money. He's living off you and your father. Mate he's a grub, I'll tell you right now. He's a deadset bastard and the longer you hang around with him. Well, my old dad used to say to me, mate if you lie down with the dogs, you'll get fleas. C - I know that. T - You know - you know that I'm right' in what I'm saying. He's taking you down -to the extend to where you are now standing in this bloody Police Station and charged with a most serious offence. C - I know that. T - And I tell you what - 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 Christa, as a painted lady - Christa the ringleader. C - And that's not true. T - But it looks that way. You're the one who effects the insurance increases - you're the one who does the books. C - But I did it for a different reason. T - You might have done it for a different reason, but in light of the bombing, it looks like and people are entitled to assume. C - I know I know. T - This is a deadset snowball on the Insurance Company and that's what people will believe. C - But there's a lot of people. T - Everybody who's been associated with Ramon will tell you this - if you don't know who did it, you'd be the only silly bastard in Byron Bay. C - People associated with Ramon or friends or, who are you talking about? T - People that Ramon considers to be friends of his. People said he as talked about it before. C - I didn't realise he has as many close friends as that. T - Well these people are associates anyway - plus friends. C - It says a lot of things about Ramon that you say that basically, when I came from Sydney I met Ramon as a hairdresser and at the same time from his mouth I heard a lot of things about her being a prostitute. T - She's not a prostitute, she's never been a prostitute. She's a bloody ... she's very well bred, comes from a very nice family, she's a lovely person. C - Well as I say, they, I have always been under the impression CONNOLLY - From Ramon? C - No from other people. T - Go and talk to her about what Ramon used to tell her about you and you can handle the situation. He's just a bloody deadset con-man. C - What did he tell her? T - I'd like your father to be in listening to this conversation. If I made the same deal to your father, I know what he'd tell you to do. Do you want to cut your losses mate and get out of it while you can. C - What did Ramon tell me about her or it's not permitted. It's really appropriate I presume. T - It's not important. He's just conned bur same way he's conned you. C - Well I didn't realise they had any money to be honest with you. (Over radio "Ballina") T - She's got plenty. C - That's another thing, I've never seen her family, as I say, in the time of the Restaurant, needed money, my father has always given it. She was never prepared, although she had a partnership with her husband really. T - Hey, C - She cut. T - Ramon cut her off. She said she tried to talk him out of going into the Restaurant. C - That's interesting because she wanted to be in Ballina with her child, it was better for the child. T - Ah no, that was all Ramon's idea. I'm going to do this for the girl. Come up to the country. Live up in the country.... She tells a completely different story than Ramon tells. C - So you say that allegations at the beginning when you said that you know that she was a prostitute .. T - That's not right, she's a very kind lady mate and we'll present in Court the same way. She's a School Teacher by occupation. C - She's still teaching or? T - No, she's hiding from Ramon. We know that. C - Why would she hide from him? T - She doesn't like him. At all. He's treated her like an arse. C - Then why would she be hiding from him. She's got nothing to fear from him. T - She does. He's a 'basher. We both know that. You and I know that 'Christa. I'm right aren't I? C - About.. Are you going to go over the same thing? T - After today when this Brief is put together it's too lake to do anything. Today you've got to make up your mind. C - So you're prepared to .... T - 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 ther and I am seeking an approval to withdraw the charge. C - Will you give me time to think about it, because I don't have any information that can implicate Ramon. T - 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. C - But I can't lie. I can't lie. In certain things the truth will make it sound .. T - Christa you must know about it. C - Not in the ways that you're saying in terms of who did it like the, the letter from the Republican Army and all this T - I don't know anything about that. That might just have been a side ... C - I mean. T - You had nothing to do with that? C - No basically I didn't have anything to do with the bombing either. We'd been getting strange phone calls. I don't know if that's any help. T - No, I wouldn't worry too much about it. But listen lady, that a good deal. C - And I sit in front of you and you. T - Mate you've got to trust me. I have no doubt. C - I'm not saying I'm not trusting you. It's just jail. T - I'll make every effort. I can guarantee there's nothing I haven't given you. I'd nearly say to my Sergeant, you know. Now I know you're involved because you help set it up. In the sense with the Insurances and all that, but that doesn't matter. It's important that we can convict this man. C - Where would you send him, back to Spain? T - Spain. He's no good for Australia. He's no good. What's your father think of him? C - My father doesn't really think about anything at the moment. He's going through a really hard time because I'm his only child that he's responsible for. T - You know I have a sick feeling that you can write yourself off forever. Now you know that don't you. C - Yep. T - You won't get a job, particularly in a business. C - I know that. T - You know I'm right. I can guarantee that we can wipe your slate clean. You should have thought about it when I offered it to you before. You would never have been in the dock. C - Yeah but then when you said to me "Tell me everything you know". I did but I got charged anyway. T - Yeah, but did you tell me everything you know. What you got to tell me. You gonna have to be frank with me. You can sit down and talk to me. You can tell me, when you discussed it, what you decided to do, who was going to do it. C - Ramon never discussed the actual bombing with me and once again I am always the one who has done. T - But he's got to have discussed setting up the Insurance and all that? C - I always do the Insurance. T - Yeah but it was increased considerably. C - Because that's where the money is. T - But it was set up. See that's where you've got to be careful. If you tell me the whole truth and give me enough, what we've discussed. Now it's going to be hard for you. You have to make up you mid whether you're going with the goodies and looking after me and tell Ramon, I want to get out - I've decided to come clean and I'm going to after ME and secure my future... I'll guarantee you, we will get you committed to Trial and you will to to Trial. That will cost you Ten Thousand ($10,000.00) a day. C - Ten Thousand ($10,000.00) a day. T - Yeah and I'll tell you what .. when people can see that increase in Insurance and all the financial problems you had. C - I'll have to think about it, if while I'm here, if you could perhaps be possible to get that album. T - Where are they? C - It's the one there, it's the grey one. CONNOLLY - It's a presentation one? C - Presentation one because there's someone really interested in some things. I'd like to get it down T - And yet, you'll think totally seriously about what I've said to you? C - I will. T - Would a photocopy? C - It should photocopy - if you could keep the photocopy so I could send the nice one. T - Right oh. C - What did you want to use it for anyway. T - Well I think we wanted to show um, the plant equipment, so we need one. I'm sorry. C - Well if I could make photocopies then or you wouldn't have the negatives would you, cause I haven't got any. T - See that's another thing that I consider I would do anything for you, if you'd co-operate with me. CONNOLLY - See where it is will you. Have a look and get it out. You've got to think very seriously about that. C - I know. T - You know - good. And I don't care if you go back and tell him that. C - No, no the thing to do, once again, what I know about is his ex-wife. I mean .. T - His ex-wife is a very nice lady. C - I know what you're saying. T - His ex-wife's said without any doubt in the world at the moment, "I knew the minute I heard that he did the banking. I know that". She said that always said that if I got that bad, I'll get out. He's an enigma freak. C - She lived with him in Spain. T - She met him in Spain. C - No. T - He swept her off her feet. C - Apparently he had money. T - No, he is a car Salesman. C - A Car Salesman. T - Yes. C - I've never heard that. T - There's more things about him that you don't know. He's no good mate. He's a con-man. He has a reputation as a con-man. The Spanish community him a con-man. They discussed it with him. They want him out of the country. He gives them all a bad name. C - He was a Car Salesman whe he came her, or in Spain? T - Spain. C - What I know is that he came her with money and Victoria basically, well she was with him when he had money and after the money ran out the love ran out. T - No she's got plenty. C - Really. T - Um, her father is will, I don't like to say it, but he's worked hard all his life and he's comfortable well off. She will cane into a bit of money. C - Why is she? That is right, when the Restaurant, the Restaurant made enough money to pay the bills, but I always had to pay Victoria and the child because he had a family to look after, I mean T - That's natural. C - That's natural, but at the same time when the money was really short, why didn't she ask her father ever for any money? T - Well, her father told her whenever she was with Ramon Bracamonte, he would give her no money. But I'm sorry but you're on your own. C - I remember when her father came to the Restaurant with his wife. He doesn't live in Ballina and was very nice. She had a very broken childhood, that comes from a broken home. It's quite interesting to hear what you're saying. I need to - I will get in contract with my Solicitor and have a bit of a chit to him and I can mention to him what. T - You can mention this Christa - 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 .... to change his mind and get you indemnify to defer prosecution, but you've got to give me Ramon and anybody else who might be involved. C - If I don't know that part? T - Just tell me the truth. Tell me where it might have been, how it might have happened. I'm telling you the truth about the car matter, it has been seen,(this part cannot be deciphered). C - You've got to believe' me. I don't want to be charged with something that I haven't done. T - Look it's' like two people going to rob a bank. One sits in the car, the other. C - But I didn't sit in the car. T - But one goes in. C - Yeah. T - The bloke inside pulls a gun and murders somebody and they both get charged with murder, even if the bloke in the car knew nothing of it. And both are entitled to be convicted as being principal in the commission of the crime. By you just setting up the Insurance, knowingly or not. C - Well I had other reasons for doing what I've done. T - Yeah but it's quite obvious you knew about it. That's going to be my allegation anyway. My allegation will be that you and he engineered this thing. That you set it up and that he, in some way has stick-light it. Was close enough at the time, had the knowledge to do it. He either did it himself or had an assistant do it. I don't know how he's done it. I don't want you to have to show he'd one it. C -Um. T - Who's your Solicitor? C - Harry Smith. T - I don't like him to be quite honest. C - I really find, I don't want to deal with Byron Bay... T - Harry Smith won't be present when I talk to you again. C - Right. T - You've got to come and talk to me and trust me. C - Right. T - Ring your father and ask him what you should do. Get him to ring me. C - I'll give him a call. I would not call my father today because he's having too many problems. My brother had an accident so its just. T - Car accident. I'm sorry, is he all right? C - He'll be okay. I think he's in hospital. Sorry. T - You're right. It's a share to see you get yourself into these situations. Do you think about the years ahead. C - I do. I do. I'm not please about the things you say about Ramon. T - He's no saint. You must know that. C - Not in the sense that you say that Ramon in a con-man. Ramon has always been - I cannot imagine anyone being. T - Yeah go on, sorry Christa. C - I just can't imaninge what you've said. That Ramon could be the one person. T - But that's why he's so successful. I'll tell you what mate, when there's no chance of Ramon being involved, it will be wrong. I'll tell you. And mate. C - I know I don't know any of his Spanish friends anyway. I only know one. From what I know - I mean everything is you know up front, so it's very hard for me to just accept something that someone's - how you say - just so different, like the Car Salesman. (More talking - cannot be deciphered) T - She know knows that he was going to marry her to get her father's money. That's what she said. C - You know she's been married? T - Yes, he's quite nice her husband. I told her things about you. The' truth about you. C - Things about me? I hope it wasn't all bad. T - No I haven't heard anybody say anything bad about you, except you got mixed up with him. C - But' when you're in love with someone. T - Yeah but look after yourself now. It's a big decision to make. This is the best I can give you that. You can wipe your slate clean. Don't stand by and go down with a bloke if it's not worth it mate. C - Right if you can give me a bit of time - I have to T - Yeah right oh, but you think very seriously about it. (Background noises - lady talking) T - Listen, I don't know Christa if it is such a good idea to ring the other bloke Harry, because he has an interest in the other bloke Ramon. C - So you say I should go to someone completely independant. T - You go to someone totally independant and say, can the Police do it. C - Well I'm more interested, I don't care about these ones, the ones you got spares of (referring to photos). MCCANN - Who's your buyer Christa? C - A lady in Sydney, well basically she is interested to have a look at everything, she may just allow me to stay managing if for her. M - Oh very good that's nice. You'll get a wage then. No worries. C - That would be lovely. CONNOLLY - You can't have the book, what we'll be able to give you is spares which you can have copies of. C - Unless you can make me photocopies. CONNOLLY - What about the originals like that. C - That would be lovely. CONNOLLY - I'm just going through give you duplicates. C - The thing is that I need to show to her is .. M - We have spare of all those. C - That will be excellent. CONNOLLY - That's what I'm going through now. Just getting duplicates. I have everything for you. (conversation in background) T - That will be all behind you. Over and done with finished. Conversation with someone entering room) T - I told Christa I'll make an application to have the matters withdrawn on an indemnity. PO - On indemnity, oh yeah. T - and eh, we will, we will M - It's not you you silly, going the way you're going. I mean you re the brains behind it all. You're the one the one that's put in all the effort to make this restaurant and you're the one that that put all the money up, or your dad.. C - Your father. T - You definitely ... all your life mate and you know he was going to be there at the end-of it all. C - I could not say that. T - I was right about him going, don't you worry about that. That was his next step. He approached somebody about money to go. That's where the passport comes in. That's what we were told. I got it from the Spanish community. He approached the Spanish community about funds to go overseas and they said "no". They contacted the police over there, who contacted me and you know that your offender at bloody Byron Bay, has got a passport and he is looking for mone to go overseas. C - And that wasn't money for his child. T - He is not interested. C - I heard that he was looking for money to get custody of the child. T - He is not interested. He won't get custody of the child. C - No for the custody, I mean access. He needed money to bring his child payments up to date. T - All of a sudden it is important to get access, because he wants to put himself to Court as being, a loving caring father who's got this poor child. Mate he's good. He is an arsehole. C - So you're saying he actually has asked someone for money to leave the country or just asked? M - Why do you think he wants to leave the country. C - Is that to leave the country? M - You bet, my word. You'll be left with the bundle, that's what s going to happen to you, with no prospects. TAPE ENDS HERE. ABBREVIATI0NS: C - Christa Van der Merwe T - Sergeant Thcmas CONNOLLY - Police Officer M - McCann PO - Unidentified Police Officer 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. Decision last updated: 31 October 2014