This story continues my coverage of the trial of Roseanne Beckett's malicious prosecution case against the State of NSW. In this post, I introduce the defendant's case.
These stories are part of my Roseanne Catt miscarriage of Justice project. As part of that project, I aim to provide an account of the trial which the rest of the media is ignoring.
If you are not acquainted with the case, you may want to read earlier stories in the investigation. I have already introduced the plaintiff's case in this trial.
I also recently published an overview of Roseanne's case in the October 2014 issue of the Law Society of NSW Journal.
Wrestling with the Crown's case
For 25 years, the State of NSW through its prosecutors and lawyers has continued to maintain that Roseanne is guilty as charged. Never has it taken a step back from its initial position that she is a woman who planned to poison and kill her husband, manipulated psychiatrists into scheduling him and police into arresting him and who threatened those who stood in her way.
Roseanne was tried for nine offences. She was acquitted on one charge in 1991 and another after her fresh appeal in 2005. Five charges were dismissed by the NSW Court of Appeal in 2005 and were terminated when the NSW DPP decided not to pursue further trials. This case is about these seven charges. Two convictions remain. ( At a later date I will deal with these. They are not the subject of this malicious prosecution case.)
For 25 years, Roseanne has maintained her innocence of all charges. At the time of her arrest, her lawyer wrote to the police warning that she would sue for abuse of process. But it took ten years imprisonment and a further 14 years of fighting to clear her name before the trial of her malicious prosecution case began in July.
I have been asking questions of the NSW government about this case since 2000. For the most part, police and lawyers have declined to answer my questions. Lawyers at this hearing have declined requests for them to assist me to understand their case. To be fair, they are aware that I reached the conclusion that there was a miscarriage of justice in this case years ago and that most Crown witnesses are involved in abuses of power or have lied.
The state is supposed to act as a model litigant. This means lawyers acting for the State of NSW should act according to the highest standards of ethics and fairness. If they become aware that the state has committed wrongs, those representing the state should advise the government to apologise and make at least partial amends. Of course, this does not mean lawyers shouldn't resist unreasonable claims or apply their skills to defeat opponents.
Recently the Crown Solicitor Ian Knight who is the instructing solicitor in this case admitted to multiple breaches of the model litigant policy during an appearance before the Royal Commission into Institutional child sexual abuse.
The NSW government is sparing no expense to defend itself against Roseanne's claims. Its legal bill since the proceedings began must be several millions of dollars. During more than 30 days of hearing, the state has been represented by three barristers backed up by one or two Crown solicitors.
The state team is led by John Maconachie who has been a senior counsel for twenty four years. He has objected to scores of questions asked of witnesses and appears to pride himself on his knowledge of the rules of evidence which play a big role in this case. Much will depend on what evidence is before Justice Ian Harrison when he comes to finalise his judgements.
Accompanying Maconachie is Patrick Saidi. He has been involved in this case since it began in 2008 and appeared for the state in its unsuccessful appeal to the High Court in support of the principle that if the case against a person charged with a criminal offence is dismissed rather than acquitted, a potential malicious prosecution plaintiff must prove his or her innocence before being able to sue. If the state of NSW had been successful in the High Court case , Roseanne would have had to prove her innocence of the five charges that were only dismissed by the Court of Appeal in 2005.
Saidi was briefly called away from this trial to be questioned by the Royal Commission into Institutional Child Sexual Abuse about the way he handled a case involving several Aboriginal plaintiffs who sued the state of NSW for abuse suffered in the Bethcar home in Brewarrina in northern NSW. He defended his approach to litigation, telling the Commissioner that he did not consider he had an obligation to provide opponents with all witness statements in his possession.
Saidi gives the impression that he has a lot emotionally invested in winning the case against Roseanne.
The third state barrister is Adrian Andrews who mostly seems to attend to procedural matters.
The principles of malicious Prosecution
As I have already explained in an earlier post, the malicious prosecution case is a tough one to prove.
This case isn't about whether Roseanne is guilty or not. It's not even about whether the detectives involved in the case were corrupt, brutal fabricators or not. Indeed a plaintiff could be innocent and prove that police were corrupt and malicious and still lose a case.
The case is about proving that the prosecuting detectives at the time they launched the prosecutions acted with malice and had an absence of reasonable cause to prosecute in each case.
This means a detailed analysis of the evidence before the prosecuting detectives led by Peter Thomas. It's not easy to prove an absence of reasonable cause but that's what the plaintiff must do.
If you are interested in the law relating to malicious prosecution, the key case in Australia is A's case in which paragraphs from 70 onwards set out some important principles.
The High Court in A's case found that it's not enough for a plaintiff to show that a prosecutor relied on nothing but the uncorroborated word of an alleged victim in launching a prosecution, although that may be relevant to proving an absence of reasonable cause. It may also be relevant to show that a police officer didn't make further reasonable inquiries, although that too may help a plaintiff prove his or her case.
Maconachie's opens his case
This report of the state of NSW's case at the outset of the trial is drawn from Maconachie's opening address on July 30, 2014.
A corrupt policeman or an evil manipulative woman
Maconachie summarised the two cases as being a choice is between two scenarios. As he put it,"either there was a corrupt policeman or an evil manipulative woman. That is the way in which it was put.That is the way in which it was tried.That is the way in which the cases were advanced by the parties at trial and the jury convicted on all but one count."
As Maconachie observed, much of the evidence in this trial was before the jury in the original criminal trial in 1991. He then briefly addressed the fresh evidence provided by Thomas's ex-business partner Peter Caesar who came forward in 2001 alleging Thomas had told him in 1991 that he planted a gun on Roseanne. If this evidence is accepted, Thomas had no reasonable cause to charge Roseanne with possession of a pistol because he knew the gun was planted. Maconachie dismissed Caesar's evidence as motivated by antagonism caused by a breakdown in his relationship with Thomas over money. (Caesar rejects this.) Maconachie questioned the credibility of any person who knowing Roseanne had been framed would have allowed her to rot in prison for 10 years knowing that he had powerful material that would help prove her innocence. "That's extraordinary. That's bizarre," Maconachie told the court.
Family and Community Services complaints about Thomas
An important underlying issue in this case is Thomas's relationship to Roseanne's ex-husband Barry Catt, the alleged victim of her crimes. At the time of Roseanne's arrest, Barry had been committed for trial for sexually abusing his four children. In july 1989, the Family Court had placed these children in Roseanne's custody. Without consulting Roseanne or Family and Community Services (FACS), Peter Thomas gave instructions for the children to be placed in the care of Barry's close friend and key prosecution witness AdrIan Newell on the day of Roseanne's arrest. ( Barry Catt was acquitted of the sexual abuse charges in 1990, before Roseanne's trial.)
( FACS officers later laid complaints against Peter Thomas for his aggressive and obstructionist conduct towards them at the time of Roseanne's arrest. In March 1990, Internal Affairs police found that there was strong evidence that Thomas had obstructed them in their duties. He was never charged. Thomas resigned from the police force before Roseanne's trial.)
Thomas's behaviour towards FACS is an issue in the case. Maconachie acknowledged that "there was plainly friction between the Family and Community Services people and Detective Thomas" and that Thomas may have made a "bad decision" in handing the children over to Newell but that Blacket made too much of this issue in his opening address.
Maconachie's case is that even if Thomas did act improperly in some respects, his actions and influence do "not extend to each and every part of the case" and that there is "a very significant body of evidence, which is utterly independent of Thomas' and his partner detective Carl Paget
He concedes that the facts in the case are "extraordinary". For example, Roseanne was convicted of offering a drunk man whom she had never previously met money to kill her husband. The state agrees that it may be an "extraordinary fact of someone approaching a man who had something to drink .. who she didn't even know and ask him to beat up and/or kill her husband that's an extraordinary event in itself" but "Thomas had nothing to do with it, absolutely nothing to do with it." (The Plaintiff's case is that Thomas was in a position to influence witnesses.)
Before Maconachie moved on from this point, Justice Harrison reminded him that the issue is whether faced with 'extraordinary facts' Thomas made the sort of inquiries that a reasonable police officer would make.
Friendships between prosecution witnesses
A big challenge for Roseanne has always been explaining why so many Crown witnesses would have given false evidence against her. In order to do this, she needs to provide evidence of how they did not act independently of each other and how they could have been influenced directly or indirectly by Thomas and his closest allies Paget, Newell and Barry Catt. For example, Thomas was a friend of Barry Catt's from the period when he was a police officer stationed at Taree from in late 1970s. Nearly all the Crown witnesses knew either Peter Thomas or Barry Catt.
In response to this argument, Maconachie argued, "My friend made much of the fact X knew Y and Y knew Z. Taree 25 years ago was a lot smaller place than it is now. I grew up in a country town, everybody knew everybody else. It adds nothing to the extraordinary facts on all sides of this case that the people knew one another."
An inappropriate choice of prosecuting detective
As early as Roseanne's Supreme Court bail hearing in 1989, Justice Allen questioned why Thomas should have been working on the case at all. Roseanne had previously laid complaints against Thomas after he unsuccessfully prosecuted her for arson in 1983. After quite an extensive bail hearing, Allen described him as a "most inappropriate choice" for a prosecuting detective in the case.
Maconachie downplayed Justice Allen's comments as "necessarily made on incomplete and imperfect information." He acknowledged that Thomas had been directed to cease involving himself in the investigation. But Thomas challenged this ruling as unlawful and managed to get himself appointed back to the case.
Maconachie explained that Thomas was concerned that if wasn't in control of the investigation, it would be placed in the hands of others to consider whether "there might be proceedings such as we are now litigating in which he would be a central figure". So he took advice from a "very experienced police prosecutor and made representations" after which he was reinstated by senior police to the investigation."
Note: In other words, Thomas was worried that if he didn't stay in control and other detectives took over the case, Roseanne's lawyers might successfully bring an action for abuse of process or malicious prosecution.
Early review of prosecution
Early complaints and concerns about the case were sufficient for senior police to ask different police investigators to reinterview all the witnesses who had made statements in the case. The Crown witnesses did not vary their evidence and so the senior police decided that the case should go ahead.
As Maconachie explained to Justice Harrison, " Police officers directed to re‑investigate found that what had been collected by Thomas and Paget by way of evidence was the same as which they collected. That will, we say, goes a long way to determining whether or not there was improper pressure by Detective Thomas, as he then was, and/or Paget. Senior police who directed this re‑investigation plainly did so inferentially by what Justice Allen said ... One might think it is hardly likely that the re‑investigators would not have taken their job very seriously."
(While this point has force, it raises the issue of how likely back in 1989 it was that police reviewing other police actions would have upheld complaints and whether witnesses who were reinterviewed would have accepted that they would be independent of Thomas.)
Maconachie told the court that the plaintiff's case that she was the victim of a conspiracy cannot be sustained because evidence "from a number of different sources ... unassociated with Thomas" provide more than sufficient basis for a reasonable and probable cause to prosecute.
He argued,"even if you ( Justice Harrison) were to find that Mr Thomas "had it in for" Roseanne Catt because of the 1983 arson investigations outcome ... the law is that it has to be demonstrated by the plaintiff that the dominant or sole purpose must be an improper one in order for there to be malice". In other words, Maconachie's case is that even if the plaintiff shows that Thomas "improperly use the processes of the law" ..."there's also got to be shown quite independently an absence of reasonable and probable cause. ".
"One can find malice, but the plaintiff still fails." This led Justice Harrison, who is no doubt just as on top of A's case as Maconachie, to comment, "I understand that."
Extraordinary and bizarre facts
Maconachie accepts that there are "bizarre and extraordinary features of this case on both sides of the contest, as it were, or what might appear at first blush to be bizarre or extraordinary."
He presented a short chronology of events which painted Roseanne as the ruthless manipulator and Catt as a hardworking successful businessman who is rescued by his friend Newell from her clutches.
"It is an extraordinary set of facts. .. But at the end of the day, the evidence will demonstrate there was a proper case to put before the Court" and that "whatever may have been the antipathy, if any, by Detective Thomas for the plaintiff, it was not a dominant reason for these counts going forward".
Thomas relied on senior prosecutors
Towards the end of his address, Maconachie returned to the issue of the more senior prosecutors who had advised and worked with Thomas on the case.
Patrick Power
Ex-senior NSW prosecutor Patrick Power represented the Crown at the trial and first appeal. As Maconachie put it, he "sadly fell from grace for unrelated reasons.... He was a highly regarded and well respected prosecutor who had respect from his professional colleagues. He found the bill; he prosecuted the case and prosecuted them successfully to verdicts in all but one case."
Note: The reference to falling "from grace" is a reference to Power being found guilty and imprisoned for possession of hundreds of high grade child pornography in 2007.
Pornography is an issue in this case as Peter Thomas was allegedly present at Barry Catt's house several years before Roseanne married Catt on occasions when pornography was allegedly shown in front of children. (When interviewed by internal affairs police, Thomas denied this). At the time Power was charged, Roseanne unsuccessfully requested a review of his role in her case.
Gary Gilday
Maconachie said that there would be evidence that Thomas had regular contact with "senior police prosecutor, Gilday who gave him advice and direction in what he should be looking for."
Note: Gilday also 'fell from grace' when as Commander of the Lake Macquarie Region in 2000 he was suspended and charged with indecently assaulting another officer. The charges were dropped later that year after the alleged victim withdrew the allegation. Gilday did not return to his position.
(I have noted these matters because sexual abuse is an issue running through this case. The state relies on the Gilday and Power's actions as independent advisors.)
Thomas acted as a "professional police officer should do" says Maconachie.
Under the direction of these men, Thomas acted as any "professional police officer" should have done, Maconachie argued. The state will rely on their role to help show that the plaintiff can't prove that Thomas was in a "conspiracy with Newell or anybody else."
Further posts will deal with the evidence in each case which is now completed. The trial resumes for submissions on December 11.