OF NEW SOUTH WALES
27 JULY 2004
02/12/1052 R v ROSEANNE
JUDGMENT ON REMITTER BY THE
COURT OF CRIMINAL
APPEAL UNDER SECTION 12(2)
CRIMINAL APPEAL ACT 1912
FOR DETERMINATION OF FACTUAL
Page 17 - APPROACH TO THE
DETERMINATION OF FACTUAL ISSUES
CURRENT GROUNDS OF
Subject to the Attorney-General's referral of
the matter to the Court of Criminal Appeal, the following grounds of appeal were
1. The convictions of the
appellant on eight counts of the indictment presented against her are the result
of miscarriage of justice which has two separate but related components:
(a) The former detective in
charge of the case, Peter Thomas was at all relevant times a corrupt policeman,
who was prepared to and did manufacture and invent the evidence upon which the
convictions were based. The propensity of Peter Thomas towards corruption and
the perversion of justice has been repeatedly demonstrated in other matters
occurring both before and after the trial of the appellant;
(b) The whole course of the
committal and trial process leading up to the convictions of the appellant was
contaminated by the fact of the multiplicity of the charges being presented
against the appellant at the same time with resulting unfair prejudice to
2. In relation
to each of the charges on which the appellant was convicted the conviction is,
having regard to the evidence at the trial and the evidence now available,
unreasonable and should not be permitted to stand".
para 35 - WEIGHT TO BE GIVEN TO THE EVIDENCE AT THE SECTION 12 HEARING OF
CHRISTOPHER, SHARON, JULIE AND TONY CATT
Where no previous version was given by any of the
Catt children but a version was given at the section 12 hearing which is
consistent with a verdict of the jury in the trial of Roseanne Catt, that
evidence is not accepted by me because it comes from an unreliable source (c/f
Davies and Cody v The King (1937) 57 CLR 170, 183-5). This is so because
one jury has already rejected the evidence of all four as not coming from
witnesses of truth and another has reached the same conclusion as to three of
them beyond reasonable doubt. Therefore the evidence of the Catt children at the
section 12 hearing as to Counts 5 and 9 is not accepted by me.
Page 26 para 36 - MS MARIE WHALEN
There is fresh evidence to support the
conclusion which I draw that the evidence of Ms Whalen is so unreliable that she
is not to be regarded as a witness whose evidence I accept on contested
If that fresh evidence had
been before the jury in the trial of Roseanne Catt there is a reasonable
possibility that the jury may have rejected Ms Whalen's evidence either in whole
or substantial part.
Acceptance of the evidence
of Ms Whalen in whole or substantial part by the jury at the trial of Roseanne
Catt is likely to have had seriously adverse repercussions to the case presented
on behalf of Ms Catt on all contested issues at her trial.
para 39 - COUNT 5: LITHIUM / RIVOTRIL
It is likely that Det Sgt Thomas knew on 29
July 1989 that Mr Newell was going to collect from office premises at 2-8
Cornwall Street specimens of Mr Catt's consumables in order that they might be
subjected to analysis.
Mr Newell's evidence to the
effect that he did not tell Det Sgt Thomas what he intended to do on 30 July
1989 at the office premises at 2-8 Cornwall Street is rejected. Mr Newell had
both a motive and an opportunity to contaminate the substances he removed from
Mr Catt's refrigerator on 30 July 1989 before they were submitted for
Mr Newell was motivated by
antipathy towards Ms Catt and by sympathy towards Mr Catt to such an extent that
he may have himself contaminated the liquids removed by him from Mr Catt's
refrigerator on 30 July 1989 before they were submitted for analysis.
It is likely that the
request for analysis for the presence of both Lithicarb and Clonazepam was made
to the Government Analytical Laboratories when the milk and orange juice were
delivered to the Laboratories on 10 August 1989. It is likely
request for analysis in respect of both substances was made by or with
the knowledge of Det Sgt Thomas prior to 24 August 1989.
his sworn evidence to that effect, there is a reasonable possibility that Det
Paget may not have found containers of Lithium and Rivotril in a black handbag
in a drawer in the main bedroom at 1 Cornwall Street on 24 August
It is reasonably possible that the only
container of Rivotril dispensed to Mr Catt in existence as at 24 August 1989 was
that produced by Mr Newell to Crown prosecuting authorities on 14 May 1991 at
the trial of Roseanne Catt.
It is reasonably possible that Mr Newell and
Mr Catt did not find the container of Rivotril last-mentioned at 1 Cornwall
Street on 5 September 1989 as Mr Newell claims.
The evidence of both Mr Newell and Mr Catt to
the effect that Mr Catt had a mandarine and other consumables from the
refrigerator at 2-8 Cornwall Street on 6 August 1989 is not credible and is not
accepted by me.
The evidence of each of the four Catt
children as to Ms Catt putting medication into Mr Catt's food and liquids and as
to them doing so at the direction of Ms Catt lacks credibility and is not
accepted by me.
Page 29 para 51 -
COUNT 9: THE UNLICENSED PISTOL
Det Sgt Thomas had an
opportunity to place the revolver charged in Count 9 in a drawer in the en suite
vanity of the main bedroom at 1 Cornwall Street on 24 August 1989.
It is reasonably possible
that Det Sgt Thomas had an improper motive for securing the conviction of Ms
Catt and of doing so by means which might include the giving, or procuring the
giving of evidence known to be untrue or not believed to be true. There is fresh evidence to support the
conclusion that Det Sgt Thomas had a propensity to act in this way.
There is fresh evidence to support the conclusion that Det Sgt
Thomas may have put the revolver in the drawer where it was found by Const
Cottee on 24 August 1989 in order to incriminate Ms
para 55 - OTHER ASPECTS OF THE POLICE INVESTIGATION
The use of 27 Milligan Street, Taree, for the
purposes of taking statements of potential witnesses in the investigation of Ms
Roseanne Catt was inappropriate.
The failure to charge any
person on the basis of evidence then available with any offence arising out of
the alleged breaking and entering of the house of Mr Bridge on 15
September 1989 has not been adequately explained. There is
evidence to support the inference that Det Sgt Thomas may have improperly used
his seniority and influence to prevent the proper investigation and the charging
of any person with participation in this alleged offence.
On 24 August 1989, Det Sgt
Thomas seized or supervised the seizure of property in purported compliance with
a search warrant which did not authorise those seizures. He subsequently
disposed of some of that property otherwise than in accordance with law. There
is evidence to support the inference that he did so in disregard of his duties
as a police officer and was acting in abuse of his powers.
There is evidence to
support the conclusion that Det Sgt Thomas abused his powers by having Ms Catt
charged with breaches of bail conditions on no or inadequate evidence and for
There is evidence to
support the conclusion that Det Sgt Thomas, contrary to the instructions of a
superior and having been judicially criticised for lack of objectivity as an
investigator, improperly continued to take part in the investigation of charges
against Ms Catt and in the preparation of the prosecution case as to those
Det Sgt Thomas may have
abused his powers and responsibilities as such in the making of allegations to
the Independent Commission Against Corruption on the basis of no or inadequate
There is fresh evidence
which, when considered with evidence given or available to be given at the trial
of Roseanne Catt, supports the conclusion that Det Sgt Thomas may have used
improper methods which were calculated to induce information or evidence to be
given by potential witnesses, regardless of its truth, and that in doing so Det
Sgt Thomas was motivated by bias against Ms Catt.
There is fresh evidence to support the
conclusion that Det Sgt Thomas may have offered an inducement to Ms Crista Van
der Merwe to give evidence which was false or not believed to be true in order
to secure the conviction of Mr Ramon Bracamonte of a criminal offence.
There is fresh evidence to
support the conclusion that Det Sgt Thomas may have given false evidence before
a Magistrate in relation to the investigation of Mr Ramon Bracamonte and Ms
Crista Van der Merwe.
There is fresh evidence to
support the conclusion that Mr Thomas, as an insurance investigator, may have
offered a monetary bribe to a potential witness to give evidence which was false
or not believed to be true in relation to the investigation of one Ms Margaret
Nagy in connection with a fire.
para 66 - MR SHANE GOLDS
There is fresh evidence as
to Mr Thomas' conduct and propensity, both as a Det Sgt of New South Wales
Police and as an insurance investigator, tending to support the conclusion that
he may have brought improper pressure to bear on Mr Golds to give evidence in a
criminal prosecution involving Ms Catt irrespective of considerations as to the
truth or falsity of that evidence.
para 67 - COUNT 6: MR JAMES MORRIS
The evidence does not
establish that either Det Sgt Thomas or Det Paget was aware of allegations
relating to sexual misconduct with under-age Aboriginal children before taking a
statement from Mr Morris as to Ms Catt soliciting him to murder Mr
para 68 - COUNTS 1, 2, 3, 4,6 AND 7
Whilst there is evidence to support the conviction
as to each of Counts 1, 2, 3, 4, 6 and 7, it is reasonably possible as to all
counts that the acceptance by the jury of the Crown's case and their
rejection of Ms Catt's, may have been substantially influenced, directly or
indirectly, by the evidence of Ms Marie Whalen and Mr Shane Golds; the evidence
of Const Cottee and Det Sgt Thomas as to the finding of an unlicensed pistol;
Paget as to the finding of Lithium and Rivotril in a handbag; the evidence of Mr
Newell as to the finding of Rivotril on 5 September 1989 at 1 Cornwall Street
and his evidence and that of Mr Catt as to a mandarins and other consumables.
FROM HIS HONOUR TOM DAVIDSONíS JUDGEMENT
AT THE SECTION 12 HEARING
(j) DET SGT
THOMAS' REACTION TO ALLEN J'S CRITICISMS
593. One result of the criticisms of Det Sgt
Thomas by Allen J was that Det Sgt Thomas was, on 25 November 1989, directed not
to do any further work on the Catt matters including contacting
594. This brought forth
from Det Sgt Thomas a letter of 28 November 1989 addressed to The Commander,
Regional Crimes Squad, Newcastle, describing the direction as "unlawful" and
"unfair and discriminative" (see H.Ex X). Although not tendered at the trial of
Roseanne Catt, it was available (see H.Ex 2.7; T/T p2085).
595. Notwithstanding this
directive from a superior officer, Det Sgt Thomas continued to take an active
part in the investigation. On 19 February 1990 he visited Taree and saw a number
of witnesses including Mr Catt, Mr Barry O'Brien, Mr Brian Cross and Ms Marie
Whalen. He took a statement from Dr Sandfield. On the following day he again
spoke to Mr Catt and Mr Newell. On 21 February 1990 he spoke to other witnesses
including Mr Catt, Mr Newell, Ms Whalen and Mr Lawlor and on 22 February 1990 he
again saw Mr Newell.
596. Det Sgt Thomas said
in evidence at the trial that he continued to be in charge of the case because
he was the informant (H.Ex 2.7; T/T p2044). He claimed that the direction to
take no further part in the investigation had been rescinded about a week after
his letter of 28 November 1989, H.Ex X, had been received in Sydney. He agreed
that he had nothing in writing to substantiate this alleged rescission. Insp
Rankin from whom it seems the directive came was not called either at the trial
or at the section 12 hearing (H.Ex 2.7; T/T
CONCLUSIONS AS TO DET SGT THOMAS' CONTINUED INVOLVEMENT IN THE CATT
597. In the absence of
confirmatory evidence of the claimed "rescission", I regard as contrived and
disingenuous Det Sgt Thomas' "justifications" for continuing to take part in the
investigation and preparation for trial, in spite of serious judicial criticism
and a directive from a senior officer.
598. This assists me to
the further conclusion that it is likely that he persisted in being so involved
for unprofessional and improper reasons. He claimed in re-examination that after
the comments of Allen J he had never directly taken a statement from another
witness and had "just oversighted and controlled" the investigation. I regard
this as tending to confirm the conclusions which I have reached.
(m) CONCLUSIONS AS TO ICAC
608. The letters H.Ex TT and H.Ex W
demonstrate not only a lack of objectivity by Det Sgt Thomas in his
investigation of the Ms Catt matter but is a further indication of his
propensity to improperly use his office to damage Ms Catt, irrespective of the
risk of gratuitous collateral damage to others. It also indicates a lack of
objectivity having descended into malice and abuse of power.
ON POTENTIAL WITNESSES AND OTHERS
609. There was evidence at the trial which
might support the conclusion that the investigative methods of Det Sgt Thomas
included applying pressure to potential witnesses and others connected with the
610. No doubt there tends
to be resistance to police from potential witnesses who do not wish to get
involved in investigations and subsequent litigation. The police may at times
feel it necessary to use oblique methods to persuade a witness to assist, by
making a statement or otherwise.
611. Where there is danger
that the use of any particular method may result in an unfair or untrue version
being provided the line of propriety is crossed and justice may
612. The issues for
determination here are whether evidence given at the trial and the section 12
hearing of Mr Thomas' investigative techniques as a police officer and as an
insurance investigator displayed a propensity in him to employ methods which
were improper, and at times illegal, and which might enable the conclusion to be
drawn that in one or more respects his conduct crossed the line between
acceptable and unacceptable methods, and if so to what degree.
613. Evidence relating to prior inconsistent
statements made by Ms Whalen out of court is canvassed at paras. 165-213. They
suggest improper pressure may have been applied to her by the police. Such
statements, however, were not evidence of the facts asserted prior to the
Evidence Act 1995.
614. Reference has also been made to Mr
Farrar's evidence that before he was contacted by other police about the
authenticity of H.Ex 21, Det Sgt Thomas made a veiled reference of what might be
interpreted as a threat which, however, Mr Farrar did not take seriously (see
615. There was a suggestion by Dr Richardson
that he was told he might be subjected to repercussions for having altered Mr
Catt's patient record after having been spoken to by FACS counsellor, Ms Cox.
Although Dr Richardson did not positively identify the police officer who spoke
to him, the inference which I draw is that it was likely to have been Det Sgt
616. In this category I would also place Mr
O'Brien's evidence that although a number of witnesses had indicated that he may
have been party to a breaking and entering offence, no charge was laid, but
before he gave evidence favourable to the prosecution in the Roseanne Catt
trial, Det Sgt Thomas had informed him of the substance of that allegation and
of his alleged involvement (paras. 538-539).
617. Mr Jones, solicitor, said that
following Ms Catt's arrest on 24 August 1989, he went as her solicitor to the
Taree Police Station. He claimed that Det Sgt Thomas had spoken to him and said
words to the effect, "Look mate you're implicated in this as well" and, "We've
got a statement from a witness that you said the words 'I want to get this
bastard out of the business' (H.Ex 2.10; T/T p3618).
618. Mr Jones conceded in
evidence that he may have used the last-mentioned words having regard to his
instructions as to Mr Catt's implication in the sexual assault
619. Mr Jones went on in
his evidence to relate difficulties he had from the police in further
interviewing his client after a preliminary interview and Det Sgt Thomas'
instructions that he should do so only in the presence of Det Paget.
620. Det Sgt Thomas said
in evidence that he may have used words to the effect that Mr Jones might be
implicated but denied that he was trying to intimidate Mr Jones (H.Ex 2.6; TIT
621. Reference has already
been made to the events of 21 and 22 September 1989 in relation to the alleged
breaches of bail by Ms Catt (paras. 579-584).
623. A number of witnesses were called at
the section 12 hearing on the question whether Mr Thomas, either as a police
officer or insurance investigator, had a propensity to bring improper pressure
to bear on prospective witnesses and others.
624. The submission for Ms
Catt is in effect that, if called at the trial, this evidence would have thrown
new light favourable to Ms Catt on the evidence already before the jury as to
the investigative methods of Det Sgt Thomas, particularly as to the evidence of
important witnesses such as Ms Whalen, Mr Golds and Mr Morris, but also as to
the finding of the revolver and the part Det Sgt Thomas played in relation to
the investigation leading to the charge in Count 5.
629. The only presently
significant evidence given by Mr Bates was that he claimed that during the
investigation Det Sgt Thomas "kept saying this is the same as that Catt bitch".
This is of marginal relevance as some further evidence of an early exhibition of
Det Sgt Thomas' continuing (and otherwise established) animosity towards Ms Catt
after the collapse of the arson case against her (HIT p1615-21).
Bracamonte / Ms Crista Van der Merwe
639. Neither Mr Bracamonte
nor Ms Van der Merwe was called at the trial, the matter not coming to light
until after its conclusion. Nor was either of them called at the section 12
hearing. The facts established came in documentary form.
640. In an affidavit
submitted in support of the granting of the petition, Mr Harrison, Crown
Prosecutor, deposed that he acted for the Crown in the trial of Mr Bracamonte
and Ms Van der Merwe on a charge of damaging a building with intent to gain
financial advantage (H.Ex HHHHH).
641. Other evidence
establishes that the building had been a restaurant operated by the accused
jointly at the time of the alleged offence. Ms Van der Merwe was then Mr
Bracamonte's fiance and they subsequently married.
642. The trial was listed to commence on 27
July 1992. One of the principal issues was to be whether the accused were in
their domestic premises and away from the building when the bomb
643, Mr Harrison deposed
that on 13 July 1992, solicitors for each of the accused saw him in chambers.
They produced a copy of what purports to be the transcript of an electronically
recorded conversation which I am satisfied took place between Ms Van der Merwe
and Det Sgt Thomas on 31 May 1989 (H.Ex L).
644. Det Sgt Thomas was
one of the police officers involved in investigating the matter. He had given
evidence at the committal proceedings (H.Ex K) and was due to give evidence if
called at the forthcoming trial as was his colleague, Det Connolly. Mr Harrison
elected not to call either of these officers.
645. There is no direct
evidence as to the provenance of H.Ex L except such as may be inferred from its
form (s48(1)(c) Evidence Act 1995), and from Mr Harrison's affidavit. He was
informed by the solicitor acting for Ms Van der Merwe that she had a recorder
concealed on her person during the course of the conversation with Det Sgt
Thomas on 31 May 1989.
646. The tape was not
produced to Mr Harrison on the first occasion on which the solicitors spoke to
him but on, 29 July 1992, he was given access to it and satisfied himself that
the transcript, H.Ex L, is a reliable representation of the recording and that
among the voices recorded are those of Ms Van der Merwe and Det Sgt
647. Notwithstanding the absence of
witnesses to the issue, I am satisfied on the basis of Mr Harrison's evidence
that H.Ex L is sufficiently reliable as a source of evidence from which to draw
inferences and base conclusions. In citing relevant portions, emphasis has been
added where indicated.
648. H.Ex L attributes the following words to Det Sat Thomas
addressed to Ms Van der Merwe, "Ramon (Bracamonte) did it, Ramon did it. There's
no risk in the world. How he did it I'm not sure. I don't know whether you were
there or you weren't there but I know you knew about it. You helped him set this
thing up". Further words are attributed to him including an assertion that Ms
Van der Merwe was the "ringleader of it". He states, "You know you're in heaps
of big shit Crista (Van der Merwe), I'll tell you how". Ms Van der Merwe is then
recorded as denying that she had done anything and Det Sgt Thomas responds that "the whole thing's been set up to defraud the insurance
company and you played a major part in it".
649. Ms Van der Merwe then
enquires of Det Sgt Thomas, "Well, you tell me more about the deal" to which he
responds, "Well what are you going to do -- the deal is this you can walk out if
you (give?) me Ramon up. That's it" (see also H/T p127).
650. Having spoken of the
"deal", Det Sgt Thomas is then recorded as indicating how it might be
implemented. Det Sgt Thomas: "I will go to the court and say look....". Ms Van
der Merwe: "Could you go to the court or to my solicitor or go through him
through the right channel? I mean I'm not saying Ramon has done it because I
don't have any proof right?". Det Sgt Thomas: "This is what I can do. I can
apply to the Attorney-General, because you've given me information leading to
the conviction of an appropriate person to have your matter squashed and you can
see the report on it, I'll do it in your presence. I'll give a copy to your
solicitor. Only on the condition, only on the condition you give Ramon up. I
can't go any further unless you do".
651. At page 4 of H.Ex L,
Det Sqt Thomas describes Mr Bracamonte as a "grub" and a "dead set bastard". He
states, "In the Iona run we will shake the life out of both of you because I can
never guarantee what the court will do to you, but by the Christ there is a lot
we can do to you and you come over Crista, as a painted lady Crista the
ringleader". Ms Van der Merwe challenged the truth of this statement. Det Sgt
Thomas proceeded, "But it looks that way. You're the one who effects the
insurance increases you're the one who does the books".
652. At page 6 of H.Ex L,
Det Sgt Thomas is recorded as saying, "I'm prepared to do this. You tell me
exactly what you know about it and what happened and how he did it and I will
type up a report to the Attorney-General now and at the time we go to court and
say, I want the matter to be adjourned until the Attorney-General will make a
decision and this lady's given an undertaking to give evidence against that
bloke there and I am seeking an approval to withdraw the charge". Ms Van der
Merwe asks for time to think about it "because I don't have any information that
can implicate Ramon". Det Sqt Thomas: "You know how much you know about Ramon. I
don't know how much you haven't told me, but you've got to cut your losses. I
don't care if you were involved. Just tell me you weren't. Only Ramon did it and
I don't care what even tell me this is what we did, this is what we talked
about". Ms Van der Merwe: "But I can't lie".
653. At page 7, Ms Van der
Merwe: "Ramon never discussed the actual bombing with me....".
654. At page 8, Det Sgt
Thomas after Ms Van der Merwe indicated that she would speak to her solicitor,
"You can mention this Crista if you give me the evidence I'm looking for against
Ramon and that's telling me everything you know about it and I'm satisfied with
it, I'll make representations to change his mind and get you indemnify to defer
prosecution (sic). But you've got to give me Ramon and anybody else who miqht be
involved". Ms Van der Merwe: "If I don't know that part?". Det Sgt Thomas: "Just
tell me the truth. Tell me how it might have been how it might have
655. At page 9 of H.Ex L,
Det Sqt Thomas advised Ms Van der Merwe to go to a "completely independent"
solicitor and say "can the police do it".
656. It is of course not
uncommon for the police to "do a deal" with an accomplice who is subsequently
called as a witness in the Crown's case against the co-accused.
657. Such a witness may be
given an indemnity from prosecution or at least a "use" undertaking (s19
Director of Public Prosecutions Act 1986). There is also authority for the
proposition that such a witness should be either already dealt with for his/her
part in the offence or a no/le prosequi entered (R v Grant (1944) 30 Cr AR 99; R
v Norfolk Quarter Sessions, ex parte Brunson (1953) 37 Cr AR 6; cif R v Robert
Smith (1924) Cr AR 19; but see now ss17 and 165(1)(d) Evidence Act
658. Current practice in
New South Wales seems to be that an indemnity from prosecution or a "use"
undertaking together with an appropriate warning under s165 of the Evidence Act
672. On 12 June 1999 the
Royal Hotel at Monto in Queensland was burned to the ground (see evidence of Ms
Margaret Nagy: H/T p1777-82).
673. After the fire Ms
Nagy, a licensee jointly with her husband George, said she was contacted by Mr
Thomas who was then an insurance investigator. At that time she was separated
from her husband. She said in evidence at the section 12 hearing that Mr Thomas
had said to her words to the effect, "If you tell me that your husband torched
the pub, I will make you a very wealthy woman" (HIT p1778). She said that her
husband had never "torched the pub" nor had he told her that he had and she had
told Mr Thomas so.
674. Thereafter Ms Nagy
said Mr Thomas contacted her again offering bottles of wine and "comfort" which
she said she refused.
675. She claims he said
again, "Why don't you convince me that your husband has done it and I will make
you a wealthy woman? I will make it worth your while. Just tell me the truth. I
can even give you some money to pull you through".
676. She claims that he
told her that he would put her husband away for life and that she could rest
assured that she would live thereafter in comfort.
677. Ms Nagy said that on
the night of the fire she had been living at the hotel with Ms Gina Hart, a
678. Ms Hart (HIT p1782-8)
said that on the night of the fire she had been living in Mitchell Street about
three to four kilometres from the hotel. Having seen signs of the fire she had
gone to it and had there spoken to various members of the Nagy
679. Ms Hart said that
some months later she had been telephoned by Mr Thomas and had gone to see him
in Brisbane. He had said that he was certain that Mr Nagy had started the fire.
Ms Hart said that she had expressed doubts about this and had referred to the
financial costs from the loss of trade which would have ensued to the Nagy
family if he had. Mr Thomas had then referred to income protection insurance
cover which Mr Nagy had.
680. Ms Nagy claimed that
Mr Thomas had asked whether she had ever had a sexual relationship with Mr Nagy.
She denied having done so and he said words to the effect that he, Thomas, had
come prepared to offer her $10,000 on the off-chance that during a wild moment
of passion in "pillow conversation" Mr Nagy admitted to her that he had lit the
fire. She said that again she denied that she had ever slept with Mr
681. In cross-examination,
Ms Hart was referred to notes which she agreed that she had initialled during
the conversation which she had with Mr Thomas in Brisbane. She claimed, however,
that she had not been able to read through the notes although she had initialled
each page of them. She claimed that he had told her not to bother reading them
as his secretary would send her a copy. She said she had never received a
682. At the section 12 hearing Mr Thomas
said that he had investigated the fire. He agreed that he had interviewed Ms
Nagy but denied that he had offered, or was in a position to offer, anyone money
for evidence as to the fire. He said that he had asked Ms Nagy questions about
her sexual life because he claimed that was what she wanted to talk about (H/T
683. Mr Thomas also said
that he had spoken to Ms Hart but denied he had told her that he had suspected
that Mr Nagy had an income protection policy. He denied any discussion with her
about that. He claimed to have obtained from her a "signed statement" and said
he could not recall saying that he would send her a transcript of the recorded
interview. He denied having said words or words to the effect that she might be
paid $10,000 if she was prepared to say that Mr Nagy had admitted "in a moment
of passion" having started the fire (HIT p190-2; 386-8).
as to Ms Margaret Nagy
684. Ms Nagy and Ms Hart
are credible witnesses whose evidence is capable of being accepted. The question
arises whether their evidence is relevant to the determination of any factual
issue arising in the section 12 hearing. As indicated, it is put before me as
going beyond credit and tending to establish a propensity in Mr Thomas to act in
a particular way, namely to improperly influence potential witnesses into giving
information and obtaining evidence regardless of its truth. The submission is
based on the terms of s97 of the Evidence Act 1995.
685. As to the giving of
reasonable notice as provided in that section, this question does not arise and
in any event I would dispense with notice pursuant to s100 of the Evidence Act
1995. As to whether it is of "significant probative value" it should be
considered in light of evidence relating to witnesses such as Ms Marie Whalen,
Mr Shane Golds, Mr James Morris, Dr Richardson, Mr Barry O'Brien and Mr Farrar.
It may also be relevant to the question of the alleged finding of the pistol in
the en suite bathroom of Ms Catt on 24 August 1989 in light of the evidence of
Mr Caesar, as indicating a propensity in Mr Thomas to act dishonestly in the
gathering of evidence.
686. In no instance in the
trial of Roseanne Catt, however, was any allegation made of Det Sgt Thomas
having held out a financial inducement to a witness to give false evidence.
Nevertheless, there were substantial issues before the jury in the trial as to
whether Det Sgt Thomas' methods of investigation may have tended to induce the
giving of false or at least questionable evidence.
687. Notwithstanding the
difference in methods involved in the allegations contained in the evidence of
Ms Nagy and Ms Hart as compared with the methods suggested on behalf of Ms Catt
at her trial, the evidence of Ms Nagy and Ms Hart does have "significant
probative value", as does that relating to the Bracamonte Nan Der Merwe matter
688. In addition, adopting the analogy of evidence of conduct of
police officers at the New South Wales Police Royal Commission and applying the
more stringent test propounded by Meagher JA in R v Vastag NSWCCA unreported 12
May 1997, the evidence, like that as to the Bracamonte Nan der Merwe matter, is
relevant and cogent as going to whether Det Sgt Thomas may have used improper
and dishonest methods of gathering evidence in the
investigation of charges laid against Ms Catt.