R v Tomkins & Gunning - [2001] QCA 68

[2001] QCA 68

COURT OF APPEAL

DAVIES JA
McPHERSON JA
AMBROSE J

CA No 282 of 2000
CA No 294 of 2000

THE QUEEN

MATTHEW WILLIAM TOMKINS and
BRETT HAROLD GUNNING Appellants

BRISBANE

..DATE 02/03/2001

JUDGMENT

DAVIES JA: The appellants in this matter were each convicted after a joint trial in the District Court of robbery in company and unlawfully doing grievous bodily harm. The victim in respect of both offences was Lesley Gordon Peterson.

Tomkins was sentenced to an effective term of five years' imprisonment, that being the term imposed in respect of the robbery offence, and Gunning was sentenced to an effective term of seven years' imprisonment, that being the sentence imposed for the robbery offence, together with a declaration that it was a serious violent offence.

Both appeal against their convictions, and seek leave to appeal against their sentences. Both appeals against conviction have in common a ground that the verdict was unsafe and unsatisfactory and Gunning appeals additionally on the ground that the joint trial with Tomkins resulted in a miscarriage of justice in that it deprived him of a fair trial. It is convenient to consider those grounds in that order.

There is no doubt that shortly after 10.30 p.m. on 23 June 1999, the complainant was assaulted and badly beaten and had money and a keycard stolen from him in an alleyway near the Ascot Hotel in Rockhampton. He suffered a number of very bad injuries to the head, including a broken jaw, and it is common ground that these constituted grievous bodily harm.
The only question which the jury had to decide was whether it was the appellants together who had committed these offences.

It was also common ground at the trial that the case against each of the appellants was entirely circumstantial. It is true that the complainant in his evidence purported to identify the appellants, with whom he had been drinking at the Ascot Hotel, as his assailants. However for a variety of reasons it was accepted that the evidence was unsatisfactory in that respect, not the least being that when first interviewed by police, he did not say that his attackers were the two persons with whom he had been drinking that night shortly before he was attacked.

Accordingly the learned trial Judge told the jury that his purported identification was "very very unsatisfactory" and had "no evidentiary value whatsoever". No complaint is made about his Honour's directions in this, or indeed in any other respect.

Late on the afternoon in question the complainant arrived in Rockhampton by train from Bundaberg. He had earlier withdrawn $300 in cash in $50 notes from an automatic teller machine. He went to the Ascot Hotel where he remained until about 10.30 p.m. It was the night of the third State of Origin Rugby League match and a television in the bar was showing it. During the course of the evening he found himself drinking with two men identified by a bartender at…

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 Tomkins & Gunning

Details

AGLC: R v Tomkins & Gunning [2001] QCA 68
Case: [2001] QCA 68
Decision Date: 02/03/2001

CaseChat Overview and Summary

The appellants, Matthew William Tomkins and Brett Harold Gunning, were convicted in the District Court of robbery in company and unlawfully causing grievous bodily harm. Both appeal against their convictions and seek leave to appeal against their sentences. Tomkins' appeal against conviction is based on the contention that the verdict was unsafe and unsatisfactory, while Gunning additionally argues that the joint trial with Tomkins resulted in a miscarriage of justice. The Court of Appeal dismissed both appeals against conviction, finding that the verdict was safe and satisfactory. The appeal against sentence for Tomkins was refused, but Gunning's appeal against sentence was allowed. The Court substituted a sentence of five years with a declaration that it was a serious violent offence.

The legal issues before the Court of Appeal were whether the verdict was unsafe and unsatisfactory, whether the joint trial resulted in a miscarriage of justice, and whether the sentences imposed were manifestly excessive. The Court of Appeal found that the evidence presented at trial, although circumstantial, was sufficient to support the verdict. The Court also found that the joint trial did not result in a miscarriage of justice, as the trial judge provided clear directions to the jury regarding the evidence against each appellant. Finally, the Court found that while Tomkins' sentence was within the range of a sound discretionary judgment, Gunning's sentence was manifestly excessive, as it was based solely on his previous criminal record. The Court substituted a sentence of five years with a declaration that it was a serious violent offence for Gunning.

Orders