This is my third story about Roseanne Beckett's malicious prosecution case against the NSW government. The case was adjourned last week until the end of October so that gives me time to bring readers up to date with developments in the case. At this stage, no other media has been following the case.
Unless the government offers compensation, the tortuous track of malicious prosecution is the only one available in NSW to victims of miscarriages of justice.
This case is enormously complicated, involving many proceedings, witnesses and charges. The challenge is to prove that ex-Detective Peter Thomas, who died at 64 last week, was not only driven by malice towards Roseanne Beckett but that he had no reasonable or probable cause to charge her.
Note: I'll do a further post about the implications of the death of Thomas.
This story is an account of day two of Paul Blacket's opening address. The first day was dealt with in my previous post.
Early in the day, Justice Ian Harrison made a comment which seemed to sum up the case.
"This case strikes me to be, if I can use the analogy, a large brick wall. There're many,many bricks in it, but arguably not all of them are structurally important. It is hard to identify which ones are and which ones aren't, but presumably at the end of the day, if Mr Blacket is successful, he will have constructed a wall that, even though some of the bricks might come out, it still remains standing. We can argue about a lot of them in the course of construction, but until we've got what is left, it is perhaps just easier to make our own notes about them and wait to hear what is said later, isn't it?"
At the time the judge made the comment, Blacket had been discussing the search warrant issued before the raid on Roseanne Beckett's home on 24 August, 1989 and the huge number of her personal belongings that were seized during the raid.
Senior Counsel for the Crown, John Maconachie objected to Blacket using the word 'malicious' to describe the issue of the warrant. He pointed out that the current trial is based on a tort of 'malicious prosecution' not the tort of a 'malicious issue of a warrant' which is a different legal action."That is an entirely different and separate tort from that which is before us. I thought it unfair to my friend if I didn't make my position clear now, " he said.
Maconachie's objections cover as many bases as possible. He often prefaces objections by saying that he is being 'fair' in taking points, which he may argue in his case later. This tactic is not unusual but to a lay observer it could appear as if the Crown is taking any technical point possible to avoid accepting liability for the many obvious improper and illegal acts of Thomas.
Justice Harrison's response has mostly been to let the evidence evolve, commenting that "ultimately the significance and importance and relevance of all of these matters will have to be dissected" but in the meantime, he (Blackett) is travelling a path from the start to the finish and occasionally people step off the path inadvertently. It is inconsequential really."
Even at this early stage, one got the the feeling that the judge might get slightly irritated with a constant stream of Crown objections.
Lithium poisoning charge is central to the malicious prosecution case.
The jury found Roseanne guilty of the charge of attempting to poison her husband by spiking the drinks in his office fridge with lithium prescribed for his bipolar condition by psychiatrist Dr Sandfield who scheduled Barry in September 1988.
During the Davidson Inquiry, Tom Molomby SC, who represented Roseanne, dissected the lithium evidence. This conviction was quashed by the NSW Court of Criminal Appeal in 2005.
Building on Molomby's analysis, Blacket described the flaws in the lithium case as "central to the case because they touch on the credibility of the Crown case in material ways that has, we say, spillover effects for everything else."
Before I complete my coverage of the trial, I will do a separate analysis of the lithium charge. A few points will suffice here.
Barry Catt's smash repair business had a small meal room and kitchen. This was used by staff, customers and Catt. The Crown case was that Roseanne used tablets prescribed for her husband's bipolar condition to spike drinks in the fridge. Catt drank these drinks and was allegedly poisoned. The defence case was that a number of people also used the fridge and would have also been exposed to the poisoned liquid.
Before Roseanne's arrest, samples of the liquid were collected by key prosecution witness Adrian Newell and delivered to Thomas. They were eventually tested at the Analytical Laboratories in Lidcombe. Sydney, where very high levels of lithium were found in the samples.
As Blacket pointed out, no one involved in Roseanne's original trial examined the proposition that if Barry Catt took his medication as prescribed, there would have been insufficient available tablets to achieve the levels found in the milk. The prescribed medication was Roseanne's only source of lithium.
In a statement made to police, Catt claimed he had previously contacted his psychiatrist Dr Sandfield to talk about how he was feeling wonky and that Dr Sandfield told him to continue taking lithium. There was no mention in Dr Sandfield's contemporaneous notes or observations or letters that this occurred.
Another problem is that Barry Catt's lithium levels were regularly tested and were always within a normal range. While he later said in evidence that he felt intermittently drowsy and wonky, this was not mentioned when he gave evidence at the Newcastle Family Court, not long before Roseanne's arrest.
The key issue in the malicious prosecution case is to establish that Thomas did not take the steps that a detective acting reasonably would take. Blacket's point is that Thomas could easily have made inquiries at the local pharmacy about Catt's lithium dispensing history prior to Roseanne's arrest. If he had done so he would have found that the available pills didn't "add up mathematically, it certainly doesn't add up to poisoning."
Blacket summed up Thomas's role as writing "the script" for the lithium frame-up. He told the judge that as early as Roseanne's Supreme Court bail hearing a few weeks after her arrest, Thomas told an 'outrageous lie' when he said he didn't know who prescribed lithium for Barry. As the evidence clearly shows, he had conversations with Dr Sandfield who was involved in dealing with the samples, collected by Newell. This lie is evidence of malice.
By this stage, those following the Blacket's opening might well be asking themselves how Roseanne was convicted of the poisoning charge in the first place. But there is even more to this alleged frame-up that will come later.
The raid on Roseanne's house.
The raid on Roseanne's house was not videotaped. Lots of photographs were taken but there was no contemporaneous record of what was being photographed and in what order.
Roseanne was originally charged with 14 charges although only nine went to trial. The warrant was only to search for an unlicensed pistol and automatic firearms.
Police are required to make a report of searches executed by warrant but no report was filed of this raid until nearly three months later. Lots of Roseanne's personal papers were removed including important business and legal documents.
Roseanne who had no criminal record of any kind was handcuffed.
Although evidence was later given by police that lithium tablets were found in the house, no photographs were taken of them in the house.
A gun was found in a drawer in a small bathroom off Roseanne's bedroom. It was fingerprinted but no fingerprints were found. Another gun was also found but that was later returned to Catt.
Summing up this part of the malicious prosecution case, Blacket told the court, "The search warrant was motivated by ill will and spite and was malicious."
Getting Barry Catt off sexual assault charges
Roseanne's case is that Thomas's unreasonable prosecution was driven by his campaign to get Barry Catt acquitted of the sexual assault charges for which he had been committed for trial before Roseanne's arrest. (Barry was acquitted.)
During the raid, pornographic magazines were found and photographed. (The bail hearing the following day was told that Roseanne had been charged with possession of these but that charge was later dropped.) Roseanne always said that the magazines didn't belong to her.
Barry Catt's prosecution was initiated and handled by Newcastle sexual assault police but Thomas involved himself in these proceedings in a number of ways. This included giving evidence for Catt at his trial. In his evidence at that trial, Thomas said that he seized the pornographic magazines because he thought they could be relevant to why Barry was charged with sexual assault. ( This was part of his attempts to paint Roseanne as being involved in illegitimate sexual activities.)
Blackett summed up this point, "It is plain that the purpose, an impermissible purpose as I said yesterday, this was a campaign to get Catt off. The seizure of the articles was for no proper purpose relevant to the prosecution of my client. It was to arm himself with material of a salacious kind that he could use at Catt's trial. He had no authority. He was not in charge of and did not conduct the prosecution of Catt. In fact, he gave evidence at Catt's trial on behalf of the accused".
Thomas reveals his plan in extraordinary document
One of the strongest pieces of evidence supporting the plaintiff's argument that Thomas aimed to assist Barry Catt is a directive the then detective made in the occurrence pad at Newcastle police station on the evening of August 22, just two days before he raided Roseanne's house.
Following Ministerial representations, enquiries are being made concerning allegations that Roseanne Catt and others have committed serious offences. Evidence has been obtained that substantiate many of the allegations made to ICAC and the Commissioner of Police. In addition, in the course of my enquiries I fully investigated the recent allegations made by Roseanne Catt and her children (names missing) . These allegations are emphatically denied by Barry Catt and have been independently rebutted by witnesses prepared to give evidence on his behalf. I direct that no action be taken as result of those allegations. I strongly advise any future allegations made by Roseanne Catt or her family and associates, be fully and correctly recorded and thoroughly investigated. I accept full responsibility for this direction and if any further allegations are made by Mrs Catt that I be advised about any action being taken and most certainly before Barry Catt is incarcerated. If Mrs Catt makes further enquiries she should only be told that her allegations have been fully investigated and have been rebutted and found not acceptable and that no further police action will be taken in this regard. Mrs Catt is not to be told at this point in time my name or that of Detective Paget's as knowledge may hinder my current investigations."
As Blacket said, "This is an extraordinary document. It contains a number of surprising facts and is illustrative of Mr Thomas's confusion between allegations and evidence. "
However as the judge commented to Blacket, "On your case he wasn't confused." If it really was a frame-up, Thomas knew what he was doing.
Note: This document would seem to indicate evidence of an attempt by Thomas to interfere with criminal proceedings which could have been used to support a charge against him. You would expect it to alarm any NSW senior policeman or Crown lawyer who saw it.
Constable Cottee finds a gun in a drawer.
During the raid, Thomas directed young Taree police person Constable Joanne Cottee to take the children, who had been placed by the court in the legal custody of Roseanne, to the police station where he had arranged for them to be handed over to Thomas's ally and Catt's friend, Adrian Newell.
On Cottee's return Thomas instructed her to search the en suite of Roseanne's bedroom where she found a small gun in a drawer of the vanity. A former business partner of Thomas, Peter Caesar will give evidence that Thomas told him in 1991 that he planted the gun.
Rock incident
Roseanne was charged with repeatedly hitting Barry Catt on his head and other parts of his body with a 5.5 kilogram rock. Blacket described this incident, which occurred more than a year before her arrest, as a "domestic dispute" which he said demonstrated the "lengths Detective Thomas was prepared to go to secure a conviction."
The plaintiff's case is that the rock was in fact thrown by Barry's sister Mary at Roseanne.
Roseanne reported this assault to the police but no action was taken. As a result she took out a restraining order and civil assault proceedings against Barry. In early July about six weeks before her arrest, these proceedings were part heard with apprentice mechanic Shane Golds, her son Peter Bridge and three of her step children giving evidence to support her case.
On the evening of August 24, Roseanne and Peter Bridge were both charged with perjury in these proceedings. The original court case simply lapsed.
As Blacket pointed out, "it was exceedingly unusual, if not entirely unheard of, for a person to be charged with perjury at a time when proceedings in relation to the same had not even been completed. ..Surely a prudent police officer preferring a charge of perjury would not do so without awaiting at the very least the outcome of the proceedings" so that the magistrate could decide the case.
Note: The perjury charges could be regarded as another example of Thomas interfering with other court cases.
At the time Roseanne was tried for assaulting Catt with the rock, the only aspect of the case that changed was evidence of Shane Golds. He was taken by Thomas from his workplace to an unoccupied house owned by Adrian Newell where he retracted his original statement and signed a new statement. He gave evidence that he had been told to lie by Roseanne. Shane Golds is again a witness in this trial.
The disturbing story of Marie Whalen
A significant Crown witness at the original 1991 trial, who was allowed to give evidence without giving her name, was Marie Whalen. She had been Barry Catt's housekeeper during the period between when his first wife Lorraine left him and he met Roseanne.
Blacket described Whalen's evidence as being "extremely important... because as to what happened to this most unfortunate woman."
Before Roseanne's arrest Whalen signed a statement implicating Catt in sexual assaults. A copy of this statement was seized during the raid on Roseanne's house. Later Whalen was taken to the unoccupied house by Thomas and Carl Paget where she retracted her story and signed a statement that was damaging to Roseanne. Roseanne was then accused of forging Whalen's signature on the original statement.
There was also evidence that Catt threatened Whalen and her children if things didn't go his way, and that she was terrified of Thomas.
After Roseanne's arrest, Whalen initially appeared to be wanting to expose more evidence and assist Roseanne and the Catt children but in a frightening and disturbing change of circumstances, she was charged with bludgeoning her own husband to death. She later pleaded guilty to manslaughter and was a prisoner in Mulawa at the same time as Roseanne. Newell assisted her by giving character evidence at her sentencing. She told the Davidson inquiry that in fact, she did not even know Newell. She also said that Thomas and Paget visited her in prison before her hearing and discussed her sentencing hearing with her.
None of this evidence was before the jury at Roseanne's original 1991 trial.
Note: This evidence about the role of Newell, Thomas and Carl Paget in the sentencing of Marie Whalen did not emerge until the Davidson Inquiry. This new evidence raised issues about whether there had also been an interference in the Marie Whalen case. As with so much else in this story, these events were never further investigated by the police, the Crown or anyone else. It is an important aspect of the story that I will return to in a later post.
Crown wants to suppress material already on the public record
It was at this point in Blacket's opening that Maconachie SC sprang into action to protect the reputations of Newell and Thomas. He was upset about the way Blacket introduced this evidence which he said would be "inadmissible without her (Whalen) being called." This is going to be difficult because Whalen currently cannot be found. Maconachie accused Blacket of alleging "pretty serious conspiratorial behaviour... it is just a gross infringement to Mr Newell's rights and indeed those of Mr Thomas." He asked that a suppression order be issued because it was "damaging to the good name of these people..."
Blacket responded by telling the judge that Marie Whalen's evidence about Newell and Thomas role in her case was "given in open court in the Davidson Inquiry that was in the public domain, it is not novel material ... there is no occasion for any non‑publication order."
"I submit, no further damage can be done by the repetition of that which has been in existence for 11 years." Blacket submitted that the "very serious allegations made by Mary Whelan that she felt pressured in an impermissible way to cooperate with police as a condition of being treated in a certain fashion in respect of her manslaughter plea" should not be suppressed.
The judge then asked Maconachie if a suppression order was made at the Davidson Inquiry. The answer was 'no' to which Justice Harrison asked with a touch of sarcasm, "And you wouldn't be in a position to convince me, for example, that I should make an order about all of the material that was before the Davidson Inquiry?
It was clear the judge wasn't inclined to impose a suppression order. This left Maconachie grumbling that Blackett shouldn't have opened up the material about Whalen if he was not in a position to call the evidence. "It's really the nature of the allegations, the impact it might have upon Mr Newell in the public arena. It is 11 years ago."
Again, Justice Harrison commented, "It was in the public domain from the day it was published, wasn't it? ...
"Having regard to the fact that the material was almost exclusively material that was before the Davidson Inquiry and no application was made at the time that the material was being aired before his Honour reference to it now is not as iniquitous as you now contend for."
The judge noted that any reputation to Thomas "in terms of contextual allegations if can I adopt a phrase from the defamation side of things is unlikely to be harmful at all." (Thomas has been widely described as corrupt and a mastermind of several frame-ups.)
But Maconachie seemed anxious to let this particular "sleeping dog" as he referred to lie quietly forgotten. He then resorted to arguing that the issue was one of privacy. He described Newell as a 'private individual'. "It is incumbent upon the Court, I submit, to have some regard to his interests in privacy. He then grasped for the name of famous privacy case about a "model who is African‑American or Caribbean‑British whose name I am struggling to remember who was attending a rehabilitation program for I think alcoholism or drug addiction sued, if I remember correctly, she was successful." At this point, the judge rescued Maconachie by reminding him that Naomi Campbell was the name of the model in this celebrated case.
"My point, Maconachie argued, is that of "the interests of the individual to not have his or her name made the subject of scurrilous news items."
So while the judge had met Maconachie's two earlier requests for suppression orders, he drew the line at this one.
Blackett indicated that if Whalen cannot be found, he will be arguing that the Davidson evidence should be admitted. Maconachie indicated that he would oppose this.
Crown sounds alarm—Are Beckett's lawyers trying to tender internal police documents?
Battles over the admissibility are a theme in this case. To a lay observer, it seems that a key strategy for the Crown is to continually attempt to narrow the issues and the evidence which can be used against the Crown. At one level this makes sense. The Crown's job is to limit potential damages and the possibility of those who claim they are victims of state injustice making similar claims.
A lot of time was taken up before the trial with Crown objections to Roseanne's lawyers' attempts to inspect police documents that could be relevant to her case.
Most of these documents deal with investigation into complaints against Thomas and his partner Carl Paget by Roseanne and others unconnected with this case.
Some of these documents are included in 'tender bundles' that the plaintiff wants to use as part of its case. While some of these were used in the Davidson inquiry into Roseanne's convictions and copies have long been in the hands of this reporter and others, the Crown is arguing that some of these are privileged, which means that they cannot be used in evidence in these proceedings. For most of these documents, the relevant law is Section 170 of the old NSW Police Misconduct Act which says that documents produced in course of complaints against the police can't be used in other proceedings. This issue has already been the subject of a Supreme Court hearing which was partly decided by Justice Davies in favour of the Crown.
During the second day, Maconachie disrupted the flow of Blacket's argument with a dramatic intervention, "I have to interrupt my friend. I have just seen something that causes me great concern." He had been told by his junior counsel Patrick Saidi that a number of documents over which privilege is claimed were in the plaintiff's tender bundle. He continued, "I am very concerned about that, very concerned ... that there are documents which ought not be there and which might prejudice the further and proper running of the trial. I would ask him to address it immediately. I am sorry to interrupt his opening, but it is matter of real concern to me."
However as Blacket pointed out the arguments about admission of the documents will be complex. Some were obtained by ABC's Four Corners in an Freedom of Information application in 2000. Details of others have already been reported. Most importantly, an analysis of the trial transcript reveals that the Crown itself drew on some in other proceedings, which means the Plaintiff can try to argue that this amounts to consent to their use. These arguments will be decided as the case continues.
Damages
Blacket ended his opening address by addressing the issue of damages which would flow from a whole or partial win for the plaintiff. "The deprivation of liberty, a substantial period of incarceration for a woman of no previous convictions. Actually serving almost 10 years is a very severe sentence for any prisoner, but for a woman who has had no previous experience of the gaol system it was a severe blow. She had an unhappy time in prison, " he told the court.
Roseanne lost her investment in Catt's panel beating business. She used all her savings to defend herself. She was deprived of the opportunity to work for 10 years. Since her release, nearly all of her time has been taken up with her case and caring for her daughter Julie who is a paraplegic as a result of a car accident.
With that, Blackett's long opening was over. By comparison, as Maconachie put it, he only had "a word or two to say."
Part of Maconachie's role has been to develop an agreed 'protocol' for dealing with the large amount of documentary evidence that the plaintiff wants admitted.
The judge ended the day with a polite request, "Please, ladies and gentleman, to the extent that some questions I ask may seem to demonstrate a misunderstanding or a lack of understanding of the case, it is only a preliminary stage and I am trying to get on top of it as well. "
Several of those sitting in court commented later that the Judge was being a little too hard on himself. Even at this stage, he appeared to have done a lot of reading and to be getting a grip on this complicated case.