EXCERPTS OF THE JUDGEMENT

 THE DISTRICT COURT                                  

OF NEW SOUTH WALES

CRIMINAL JURISDICTION

DAVIDSON ADCJ

27 JULY 2004

02/12/1052 R v ROSEANNE CATT

JUDGMENT ON REMITTER BY THE COURT OF CRIMINAL

APPEAL UNDER SECTION 12(2) CRIMINAL APPEAL ACT 1912

FOR DETERMINATION OF FACTUAL ISSUES

Page 17 - APPROACH TO THE DETERMINATION OF FACTUAL ISSUES

CURRENT GROUNDS OF APPEAL

  Subject to the Attorney-General's referral of the matter to the Court of Criminal Appeal, the following grounds of appeal were filed:

  1. The convictions of the appellant on eight counts of the indictment presented against her are the result of miscarriage of justice which has two separate but related components:

  (a) The former detective in charge of the case, Peter Thomas was at all relevant times a corrupt policeman, who was prepared to and did manufacture and invent the evidence upon which the convictions were based. The propensity of Peter Thomas towards corruption and the perversion of justice has been repeatedly demonstrated in other matters occurring both before and after the trial of the appellant;

  (b) The whole course of the committal and trial process leading up to the convictions of the appellant was contaminated by the fact of the multiplicity of the charges being presented against the appellant at the same time with resulting unfair prejudice to her.

  2.  In relation to each of the charges on which the appellant was convicted the conviction is, having regard to the evidence at the trial and the evidence now available, unreasonable and should not be permitted to stand".

  Page 26 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 matters.

  If that fresh evidence had been before the jury in the trial of Roseanne Catt there is a reasonable possibility that the jury may have rejected Ms Whalen's evidence either in whole or substantial part.

  Acceptance of the evidence of Ms Whalen in whole or substantial part by the jury at the trial of Roseanne Catt is likely to have had seriously adverse repercussions to the case presented on behalf of Ms Catt on all contested issues at her trial.

  Page 27 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 analysis.

  Mr Newell was motivated by antipathy towards Ms Catt and by sympathy towards Mr Catt to such an extent that he may have himself contaminated the liquids removed by him from Mr Catt's refrigerator on 30 July 1989 before they were submitted for analysis.

  It is likely that the request for analysis for the presence of both Lithicarb and Clonazepam was made to the Government Analytical Laboratories when the milk and orange juice were delivered to the Laboratories on 10 August 1989.  It is likely that the  request for analysis in respect of both substances was made by or with the knowledge of Det Sgt Thomas prior to 24 August 1989.

  Contrary to his sworn evidence to that effect, there is a reasonable possibility that Det Paget may not have found containers of Lithium and Rivotril in a black handbag in a drawer in the main bedroom at 1 Cornwall Street on 24 August 1989.

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 Catt.

  Page 29 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 improper purposes.

  There is evidence to support the conclusion that Det Sgt Thomas, contrary to the instructions of a superior and having been judicially criticised for lack of objectivity as an investigator, improperly continued to take part in the investigation of charges against Ms Catt and in the preparation of the prosecution case as to those charges.

  Det Sgt Thomas may have abused his powers and responsibilities as such in the making of allegations to the Independent Commission Against Corruption on the basis of no or inadequate evidence.

  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.

  Page 31 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.

  Page 32 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 Catt.

  Page 32 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; the evidence of Det Paget as to the finding of Lithium and Rivotril in a handbag; the evidence of Mr Newell as to the finding of Rivotril on 5 September 1989 at 1 Cornwall Street and his evidence and that of Mr Catt as to a mandarins and other consumables.

FURTHER EXCERPTS

 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 witnesses.

  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 p2084-5).

  (k) CONCLUSIONS AS TO DET SGT THOMAS' CONTINUED INVOLVEMENT IN THE CATT CASE

  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 REFERRAL

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.

  (n) PRESSURE 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 investigation.

  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 miscarry.

  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.

  The Trial:

Ms Marie Whalen

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.

  Mr Frank Farrar

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 para. 164).

  Dr Richardson

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 Thomas.

  Mr Barry O'Brien

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).

  Mr Michael Jones

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 allegations.

  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 p1953-4).

  Mr George Baird

  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).

SECTION 12 HEARING:

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.

  Mr Arthur Bates

  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).

  Mr Ramon 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 exploded.

  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 Thomas.

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 happened".

  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 1995).

  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 1995 is

  Ms Margaret Nagy

  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 family friend.

  Ms Gina Hart

  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 family.

  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 Nagy.

  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 copy.

  Mr Peter Thomas

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 p176-7).

  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).

  Conclusions 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 (para. 662).

  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.

          

Home