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Court of Criminal Appeal 17 August 2005

Regina v CATT

[2005] NSWCCA 279

Fraud & dishonesty
CRIMINAL LAW

Citation: Regina v CATT [2005] NSWCCA 279
Court: NSW Court of Criminal Appeal
Date: 17 August 2005
Judges: McClellan AJA; Adams J; Smart AJ

Background

The appellant was tried on an indictment containing nine counts. Her trial commenced in May 1991 and verdicts were returned in September 1991. She was convicted on seven counts and acquitted on one. The convictions related, in broad terms, to alleged poisoning and associated offences.

Following her conviction, the appellant petitioned the Governor under s 474B of the Crimes Act 1900 seeking a review. The Attorney-General, having considered that petition, referred the entire case to the Court of Criminal Appeal under s 474C(1)(b) to be dealt with as an appeal under the Criminal Appeal Act 1912.

The appeal raised two principal arguments: first, that a detective central to the investigation was corrupt and had manufactured or procured false evidence; and second, that fresh evidence had emerged that, taken alone or with other evidence, gave rise to a reasonable possibility that the convictions could not stand.

  • Whether the convictions were the result of a miscarriage of justice arising from alleged police corruption, specifically conduct attributed to the detective in charge of the investigation
  • Whether the multiplicity of charges presented simultaneously caused unfair prejudice that contaminated the trial process
  • Whether fresh evidence, including evidence going to the reliability of key witnesses, the integrity of the police investigation, and the provenance of exhibits, established that the convictions on each count were unreasonable and should be quashed
  • Whether, in relation to any count, a verdict of acquittal should be entered or a new trial ordered

Decision

The Court ordered a remitter to the District Court under s 12(2) of the Criminal Appeal Act 1912, directing Davidson ADCJ to determine the factual issues raised by the appeal. Davidson ADCJ conducted a comprehensive hearing and delivered detailed findings on the contested factual questions. The Court of Criminal Appeal then considered those findings, accepting them where they fell within the proper scope of the remitter and resolving for itself any matters the trial judge had gone beyond.

The factual inquiry disclosed that several key witnesses, including the appellant herself, lacked credibility or had flawed credibility. It also revealed what the Court described as an unsatisfactory police investigation. These findings bore directly on the reliability of the evidence underpinning each count.

On the strength of those findings, the Court upheld the appeal in relation to counts 1, 2, 5, 6, 7 and 9. The convictions on each of those counts were quashed. In respect of count 9, the Court entered a verdict of acquittal outright. For counts 1, 2, 5, 6 and 7, the Court ordered a new trial. The appeals against conviction on counts 3 and 4 were dismissed, meaning those convictions were left to stand.

The majority and minority of the Court reached somewhat different conclusions on certain counts. Smart AJ, for instance, would have dismissed the challenge on counts 1, 2, 3, 4, 6 and 7 and allowed it only on counts 5 and 9, with proposed adjustments to the sentencing dates on count 7. The formal orders of the Court reflect the majority position upholding the appeal across the broader range of counts.

Orders Made

  • The appeal in relation to counts 1, 2, 5, 6, 7 and 9 is upheld and each conviction quashed
  • A verdict of acquittal is entered on count 9
  • A new trial is ordered in relation to counts 1, 2, 5, 6 and 7
  • The appeal in relation to counts 3 and 4 is dismissed
  • The appellant's bail is to continue
  • Liberty to apply is reserved

Key Takeaways

  • Under s 474C(1)(b) of the Crimes Act 1900, the Attorney-General may refer a convicted person's petition for mercy to the Court of Criminal Appeal, where it is treated as a full appeal under the Criminal Appeal Act 1912
  • Where the Court of Criminal Appeal orders a remitter under s 12(2) of the Criminal Appeal Act 1912, the remitting judge's role is confined to determining the factual issues specified; any findings that stray beyond that scope are not binding on the appellate court, which must resolve those matters itself
  • Fresh evidence capable of demonstrating police misconduct, witness unreliability, and investigative impropriety can constitute grounds for quashing convictions, even many years after the original trial
  • In dismissing the appeal only in respect of counts 3 and 4, the Court confirmed that fresh evidence must be assessed count by count, and a tainted investigation does not automatically warrant quashing every conviction on an indictment
  • A verdict of acquittal, rather than a new trial, may be entered where the evidence in support of a particular count is sufficiently undermined that no retrial is warranted

Legislation and Cases Referenced

Legislation:
- Crimes Act 1900 (NSW), ss 474B, 474C, 474L
- Criminal Appeal Act 1912 (NSW), ss 12(2), 18(2)
- Crimes (Sentencing Procedure) Act 1999 (NSW), s 59
- Criminal Procedure Act 1986 (NSW)
- Firearms and Dangerous Weapons Act 1973 (NSW)

Cases:
- Doggett v The Queen (2001) 208 CLR 343
- Dunn and Cody v The King (1937) 57 CLR 170
- Eastman v DPP (ACT) (2003) 77 ALJR 1122
- Gallagher v The Queen (1986) 160 CLR 392
- Mickelberg v The Queen (1988-89) 167 CLR 259
- R v Hannes [2003] NSWCCA 503
- R v Kremmer (2000) 50 NSWLR 538
- R v Roseanne Catt (1993) 68 A Crim R 189
- Spies v The Queen (2000) 201 CLR 603
- TKWJ v The Queen (2002) 212 CLR 124