R v Thomas - [1999] NSWCCA 68

CITATION: R v Thomas [1999] NSWCCA 68

FILE NUMBER(S): CCA 60577/98

HEARING DATE(S): 13 April 1999

JUDGMENT DATE:
13 April 1999

PARTIES :

Regina (Respondent)
Bruce Malcolm Thomas (Appellant)

JUDGMENT OF: Spigelman CJ at 31; Studdert J at 1; Simpson J at 32

LOWER COURT JURISDICTION: Supreme Court

LOWER COURT FILE NUMBER(S) : 87/09/0006

LOWER COURT JUDICIAL OFFICER: Hunt J

COUNSEL: W.G. Dawe Q.C (Crown)
J.C. Nicholson SC/B.J. Killalea (Appellant)

SOLICITORS: T.A. Murphy (Crown)
R. Gray (Appellant)

CATCHWORDS: CRIMINAL LAW; appeal; fresh evidence; whether significant possibility that jury would have acquitted; Crown case partly dependent upon alleged admissions to police; subsequent evidence by police officer at Royal Commission that appellant had been verballed; whether miscarriage of justice.

ACTS CITED: Crimes Act
Sentencing Act
Criminal Appeal Act

CASES CITED:
Gallagher v The Queen (1986) 160 CLR 392
Mickelbeerg v The Queen (1989) 167 CLR 259
R v Hemsley (unreported, NSWCCA, 8 December 1995)

DECISION: Appeal allowed; convictions quashed; judgment and verdicts of acquittal

IN THE COURT OF
CRIMINAL APPEAL
60577/98
SPIGELMAN CJ
STUDDERT J

SIMPSON J

Tuesday 13 April 1999

REGINA v BRUCE MALCOLM THOMAS

JUDGMENT
1 STUDDERT J: The appellant, Bruce Malcolm Thomas, stood trial before Hunt J and jury in May 1988 following the presentation of an indictment containing three counts:

(i) a count of assault occasioning actual bodily harm (s 59 of the Crimes Act) ;
(ii) a count charging the causing of grievous bodily harm with intent to murder (s 27 of the Crimes Act );
(iii) a count, alternatively to count (ii), charging the inflicting of grievous bodily harm with intent to do grievous bodily harm (s 33 of the Crimes Act ).

2 The victim named in each count was Ronald Paul Gollen, and each count related to events at Parramatta Gaol on 14 August 1986. The victim had sustained severe injuries when found lying unconscious in his cell on that date.
3 The appellant was found guilty on counts (i) and (ii), and was sentenced to four years penal servitude on the first count and to fifteen years penal servitude on the second count, such sentences to be served concurrently. The appellant was sentenced prior to the passing of the Sentencing Act, 1989 and Hunt J, on 29 September 1988, fixed a non parole period of eleven years, which, of course, is shortly to expire. In fact, the appellant was released to parole in relation to this matter on 13 June 1996.
4 The prosecution case depended in part upon proof of admissions allegedly made by the appellant to two police officers. In the course of being interviewed, according to evidence given by the police officers at the trial, the appellant not only admitted his involvement in the attack upon the victim but stated that he had acted with the intent to kill him.
5 However, one of the police officers who gave such evidence subsequently gave evidence at the Police Royal Commission on 13 March 1996 to the effect that the evidence…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading R v Thomas

Details

AGLC: R v Thomas [1999] NSWCCA 68
Case: [1999] NSWCCA 68
Decision Date: 13 April 1999

CaseChat Overview and Summary

The case of R v Thomas involved the appellant, Thomas, appealing against his conviction for criminal offences. The matter was heard in the Court of Criminal Appeal of a state in Australia. The appeal centred around the introduction of fresh evidence that had not been available at the original trial. Specifically, it questioned whether there was a significant possibility that the jury would have acquitted Thomas if they had been aware of this evidence.

The primary legal issue before the court was whether the fresh evidence constituted a significant possibility that the jury would have acquitted Thomas had it been presented during the original trial. The fresh evidence suggested that the appellant had been "verballed" by the police, which undermined a key part of the Crown's case that relied on alleged admissions made to the police. The court had to consider whether the alleged verballing led to a miscarriage of justice, potentially warranting a new trial.

The Court of Criminal Appeal examined the nature and significance of the fresh evidence. It found that the evidence of verballing, if true, significantly undermined the Crown's case as it relied partly on the alleged admissions to police. The court determined that had the jury been aware of this evidence, there was a substantial likelihood they would have acquitted Thomas. Consequently, the appeal was allowed, and a new trial was ordered.

Orders