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Supreme Court 12 December 2014

Application by Roseanne Beckett pursuant to s 78 Crimes (Appeal and Review) Act 2001

[2014] NSWSC 1773

Assault & violence
CRIMINAL LAW PRIOR APPLICATION AND PRIOR PETITION MULTIPLE CONVICTIONS FURTHER EVIDENCE WHETHER SUFFICIENT TO RAISE A DOUBT APPLICATION REFUSED

Citation: Application by Roseanne Beckett pursuant to s 78 Crimes (Appeal and Review) Act 2001 [2014] NSWSC 1773
Court: Supreme Court of New South Wales
Date: 12 December 2014
Judge(s): Davies J

Background

The applicant had been convicted in 1991 on eight counts following a Supreme Court trial, including offences of maliciously wounding and assault occasioning actual bodily harm against her former partner, as well as soliciting murder and drug-related charges. After a Governor's petition led to a referral back to the Court of Criminal Appeal in 2005, six of those convictions were quashed on grounds that included fabricated evidence by the prosecuting detective, Detective Thomas. Two convictions remained: maliciously wounding (Count 3, the "Swan's Crossing Incident") and assault occasioning actual bodily harm (Count 4, the "Cricket Bat Incident"). The Director of Public Prosecutions subsequently directed no further proceedings on the quashed counts.

The applicant then sought a further review. She first petitioned the Governor in 2007 in respect of the two remaining convictions, relying on a supporting affidavit from a witness. That petition was declined. She then brought the present application under s 78 of the Crimes (Appeal and Review) Act 2001, seeking referral of Counts 3 and 4 to the Court of Criminal Appeal to be dealt with as an appeal.

The core contention was that the same police misconduct that infected the quashed convictions must also have tainted the two surviving counts, and that further evidence from a new witness, Ms Strachan, cast sufficient doubt on the convictions to warrant referral.

  • Whether there existed a "doubt or question" as to the applicant's guilt on Counts 3 and 4 sufficient to warrant referral to the Court of Criminal Appeal under s 78 of the Crimes (Appeal and Review) Act 2001
  • Whether the fabricated evidence and misconduct by Detective Thomas, which had infected other convictions, necessarily also undermined the two remaining convictions
  • Whether new witness evidence raised a sufficient doubt about the reliability of the independent witnesses whose evidence had supported Counts 3 and 4
  • Whether the Court of Criminal Appeal's earlier, detailed analysis distinguishing Counts 3 and 4 from the quashed counts remained a sound basis for refusing referral

Decision

Davies J applied the established test under s 79(2) of the Crimes (Appeal and Review) Act 2001: whether it "appears" there is a doubt or question as to guilt, mitigating circumstances, or any part of the evidence. The Court noted this is an administrative function, not a judicial proceeding, and the standard requires the material to cause genuine unease or disquiet about allowing the conviction to stand.

The Court found that the Court of Criminal Appeal in 2005 had already carefully examined whether Detective Thomas's misconduct extended to Counts 3 and 4. The critical distinction was that those two counts were supported by independent witnesses whose evidence Davidson ADCJ and the Court of Criminal Appeal had accepted as credible. The convictions on Counts 3 and 4 did not depend on the evidence of Barry Catt or Detective Thomas in the way the quashed counts had.

The new evidence from Ms Strachan went, at best, to further undermining the credibility of Barry Catt and the witness Marie Whalen. However, both Davidson ADCJ and the Court of Criminal Appeal had already declined to accept their evidence unless independently corroborated, and the independent witnesses' accounts had been accepted. Ms Strachan's statement did not suggest those independent witnesses had perjured themselves or been improperly influenced.

Davies J also addressed the applicant's argument that recantations by Barry Catt and Ms Whalen, in which they claimed to have fabricated the stories underlying Counts 3 and 4, should be accepted. The Court found it doubtful those statements could be treated as reliable statements against interest given both witnesses were otherwise entirely unreliable. No evidence before the Court provided even a prima facie basis for doubting the independent witnesses. The application was refused.

Orders Made

  • The application for referral to the Court of Criminal Appeal was refused.

Key Takeaways

  • Under s 78 of the Crimes (Appeal and Review) Act 2001, the applicable test is whether the material raises a doubt or question as to guilt such that it causes unease or disquiet about allowing the conviction to stand; this is an administrative function, not a judicial proceeding.
  • Proven misconduct by a prosecuting officer in relation to some convictions does not automatically create a doubt about other convictions arising from the same investigation, particularly where those convictions rested on independent evidence accepted as credible after a dedicated factual inquiry.
  • Where the Court of Criminal Appeal has previously and explicitly analysed the distinction between tainted and untainted counts, a subsequent s 78 application requires materially new evidence to disturb those conclusions; reiterating general arguments about the officer's dishonesty is insufficient.
  • Fresh witness evidence that goes only to the credibility of already-rejected witnesses does not raise a sufficient doubt if it does not engage with the reliability of the independent witnesses whose accounts actually underpinned the surviving convictions.
  • Recantation evidence from witnesses whom courts have found entirely unreliable carries limited weight, particularly when no supporting material undermines the independent evidence that corroborated the contested counts.

Legislation and Cases Referenced

Legislation
- Crimes (Appeal and Review) Act 2001 (NSW), ss 78, 79
- Crimes Act 1900 (NSW), ss 26, 35, 39, 59, 327, 474B, 474C
- Criminal Appeal Act 1912 (NSW)
- Firearms and Dangerous Weapons Act 1973 (NSW)

Cases
- R v Catt (1993) 68 A Crim R 189 (original Court of Criminal Appeal appeal, dismissed)
- R v Catt [2005] NSWCCA 279 (second Court of Criminal Appeal judgment quashing six of eight convictions)
- Beckett v The State of New South Wales (No. 1) [2011] NSWSC 818 (background civil proceedings)
- Application of Peter James Holland under s 78 Crimes (Appeal and Review) Act 2001 [2008] NSWSC 251 (principles applicable to s 78 applications)