R v Thomas [1999] NSWCCA 68 | Case summary

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 he had given at the appellant's trial was false and that the appellant had been "verballed". There was further evidence given at the Police Royal Commission by the same detective in which he admitted what can shortly be described as wide ranging corrupt behaviour, including the giving of perjured evidence in other cases, participation in theft and participation in the corrupt receipt of money. 6 There was a lapse of some eighteen months or so after the evidence given at the Royal Commission before the notice of appeal was filed by the appellant on 31 October 1997. However an affidavit of the appellant sworn 23 March 1999 gives an account of the delay in filing the notice of appeal. Such filing was prompted by advice from the Attorney General's Department by letter dated 30 September 1997 as to the evidence given at the Royal Commission. The Crown raised no objection based upon delay and because of the nature of the further evidence this Court received it and has entertained the appeal. 7 This is one of many cases now which have come before this court in which the credibility of evidence given at trial has been affected by evidence subsequently given at the Police Royal Commission. It is not necessary to refer to the other cases in this category; rather it suffices to refer to general principles. The relevant principles as to the effect of fresh evidence were considered in Gallagher v The Queen (1986) 160 CLR 392 and in Mickelberg v The Queen (1989) 167 CLR 259. More recently in R v Hemsley (unreported, NSWCCA, 8 December 1995) the Chief Judge at Common Law emphasised that the fundamental question was whether there had been a miscarriage of justice and, in referring to the "significant possibility" test in Gallagher and in Mickelberg, said: "Relevant to that test is the credibility and the cogency of the evidence put forward, considered in the context of the evidence which was given at the original trial." 8 Either the evidence given by the detective in the Police Royal Commission was false or the evidence that he gave at the appellant's trial was false. The latter evidence was supported in its entirety by a second police officer who was not questioned as to its truth or falsity at the Police Royal Commission. However what emerged at the Royal Commission must, in my opinion, be regarded as having destroyed the probative value of the evidence of the police given at the appellant's trial. It follows that this Court should, for the purposes of this appeal, regard the evidence given by the police officers at the appellant's trial, to the effect that the appellant had admitted that he had participated in an assault upon the victim and had admitted to an intent to kill the victim, as being valueless. 9 What then was the evidence otherwise available to support the convictions? 10 The remaining evidence came from two witnesses who at the time were, like the appellant and the victim, inmates in Parramatta Gaol. These two witnesses were Mitchell Winefield and Brian Bell. 11 Shortly before the appellant stood trial, Winefield pleaded guilty to a charge of assault occasioning actual bodily harm to the same victim and, having done so, gave evidence for the Crown against the appellant. According to Winefield he and Gollen, had been at school together but Winefield had a grievance to settle with Gollen because he had assaulted Winefield's de facto wife causing a miscarriage. 12 Gollen and Bell had only just come to Parramatta Gaol and were in the process of settling into the same cell on the day that the attacks upon Gollen took place. 13 Winefield said that, having spoken to the appellant about his intention to do so, he asked the appellant to keep watch at the door of the victim's cell whilst Winefield "looked after" Gollen. The two men went to the cell where Gollen was at the time and the appellant closed the door, staying just inside it. Winefield said that he then punched Gollen eight to ten times, rendering him unconscious. Winefield said that the appellant exhorted him to jump on Gollen's head and when Winefield declined, the appellant tried to kick Gollen but did not connect. The two men left Gollen lying unconscious on the floor of his cell. 14 There had been an earlier visit by both men to that same cell when Gollen was absent from it but when Bell was present, and on the occasion of that visit, according to Winefield, the appellant had told Bell not to be there when Gollen returned. 15 Bell gave evidence that before his cell mate was attacked he had been present in the cell with Winefield when the appellant, who he subsequently identified from photographs produced by the police, came to his cell and told him not to be in the cell when Gollen returned. Bell said that he heeded that warning and indeed he went off himself to seek placement in protective custody since he suspected that he might have been the intended victim. 16 The evidence thus far reviewed sufficed to support the appellant's conviction on the first count. The case against the appellant on the second count depended, when stripped of the false police evidence, upon admissions made by the appellant to Winefield. Winefield said that after he had rendered Gollen unconscious he returned to his cell and the appellant went with him. He expressed his concern to the appellant about the victim's condition and the appellant told him not to worry and that he would "look after him". Some time later, after Gollen had been found in his cell, the prisoners were sent out into the yard where Winefield claimed there was a conversation between himself and the appellant to this effect: "Q. Who did you ask what happened? A. I asked Bruce Thomas what happened. Q.. What did he say? A. He replied, he said to me that he gave him first aid. Q. Did he say anything else? A. He told me by punching him around the face and pushed his cheek bone back. Q. Did he say anything else to you? A. He said, 'If you have got to do a job you have got to do it properly'. Q. Did he say anything about the wall, about the bed or anything like that? A. Yes, he told me that they threw him onto the bed. … Q. Was there anything said about what Mr Gollen did? A. Yes. Q. What was that? A. They said that he pissed himself. Q. Who said? A. Bruce Thomas said that he pissed himself and he had death rattles. Q. Anything else? A. That's it I think. Q. Was there anything said about a towel? A. Yes. Q. What was that? A. He was wiping blood off his fist with a towel. Q. Who said that? A. That was Thomas." 17 The credibility of the evidence given by the Crown witnesses Winefield and Bell was attacked by the appellant. In summary, the attack upon Winefield's evidence was to suggest that he caused the grievous bodily harm to Gollen and that he lied as to the appellant's behaviour so as to shift the blame. Further, reliance was placed upon Winefield's criminal record for violence, his denial as to his participation when the police spoke to him, and the asserted falsity of instructions given to his solicitor in committal proceedings to the effect that the police had assaulted him. Bell's evidence was attacked on the basis that he did not know the appellant before he came to the cell and that he was slow to pick out the photograph of the appellant from those shown to him by the police. Hence his identification evidence was claimed to be suspect. 18 The jury had, in addition to the evidence of the various prisoners, medical evidence of a non-contentious nature. That evidence concerned the injuries sustained by Gollen. Gollen was taken to Westmead Hospital and was found to have sustained severe head injuries. He had a fractured middle cranial fossa on the left side, there were left and right temporal lobe contusions and an interventricular haemorrhage. The injuries which the victim had sustained left him disabled, so much so that he was unable to give any evidence at the trial of the appellant. 19 Eventually the victim came under the care of Dr Buskell, the Director of the Head Injury Unit at Lidcombe Hospital, and Dr Buskell gave evidence at the trial. The doctor was asked whether the injuries sustained by Gollen were consistent with having been caused by punches. The doctor's answer was in the negative. She said: "In my experience, no. You would need - these sorts of injuries require a lot of force, a lot more force than that." 20 Dr Buskell was then asked this question and gave this answer: "Q. Are they consistent with a man being thrown against a wall? A. Yes, probably more than once though." 21 The appellant gave an unsworn statement in which he denied assaulting Gollen or having anything to do with any assault on him. The appellant denied making admissions to the police and he said he was working out in the gymnasium at the relevant time with a number of other men, including one Nicholson, who was referred to in Winefield's evidence as having participated in the assault with the appellant, and who was indicted with the appellant, but was subsequently granted a separate trial. Two inmates gave evidence to support the appellant's contention that he was working out at the gymnasium at the critical time. 22 This Court does not have the benefit of considering the summing up because, unfortunately, the Reporting Services Branch was unable to reproduce it, the relevant shorthand notes having been destroyed. The trial judge however made a report to this Court as contemplated by s 11 of the Criminal Appeal Act, and in that report the judge said: "Prior to Winefield's plea immediately before the trial, the police had no evidence to establish that the applicant had inflicted the injuries with an intention to kill rather than merely to inflict grievous bodily harm other than the nature of the injuries themselves. I clearly recall that my own reaction at the time to the evidence of the police officers that the applicant had admitted an intention to kill was that the evidence was false. I did not form such or any particular view in relation to the evidence of the other admissions made, which related to matters upon which the Crown case was not wholly dependent upon the police evidence." 23 When sentencing the appellant, his Honour said at pp 2-3 of the remarks on sentence: "In relation to the second charge, the Crown case which the jury accepted was that, following Winefield's assault upon Gollen, the prisoner and a fourth inmate (Roy William Nicholson) had gone back to Gollen's cell where the prisoner had punched Gollen around the face and where the two of them had, it appears, thrown Gollen up against the wall of the cell, causing very serious head injuries. There was no direct evidence that that is how the injuries were caused. But, however the further injuries were caused by the prisoner and Nicholson, they were obviously deliberately caused, and they were very serious injuries indeed. The jury was given the opportunity to find the prisoner guilty of the less serious alternative charge of inflicting grievous bodily harm with intent to do so, but nevertheless found him guilty of the more serious charge. The jury was obviously satisfied beyond reasonable doubt of the prisoner's intention to kill. Whatever may perhaps be thought of the evidence of the two police officers concerning the verbal admissions alleged to have been made by the prisoner at a time when the police did not have the benefit of Winefield's evidence to establish a case against him, the inferences from the nature of the injuries which Gollen suffered (as described in Dr Buskell's evidence) are eloquent of such an intention on the part of the prisoner." 24 If the jury found that the appellant caused the injuries to which Dr Buskell referred in the evidence extracted above, then the evidence was compelling that those injuries were inflicted either with intent to kill or with intent to inflict grievous bodily harm. 25 However, the possible importance of the corrupt police evidence on the verdict reached cannot be ignored. By reason of its verdict, the jury has found beyond reasonable doubt not only that the appellant inflicted the severe head injuries but that he did so with intent to kill. The evidence available for the jury's consideration on the second count included the police evidence, and the admission allegedly made that the appellant acted with intent to kill. 26 It is clear from the report of the trial judge that he did not believe the evidence that the police gave as to the appellant's alleged admissions. However it cannot be assumed that the jury shared that assessment. The jury may well have accepted the false police evidence as to the expressed intent and may have been influenced by such acceptance the more readily to accept the evidence of Winefield. Stripped of the support of the police evidence, the jury may not have been satisfied that it should convict acting only on the evidence of Winefield, with the limited support it derived from the witness Bell. 27 In the result I do not consider that these convictions can be allowed to stand. There is, in my opinion, a significant possibility that had seemingly credible evidence from the police officers been eliminated, the jury may have entertained a reasonable doubt as to the appellant's guilt on both charges. Accordingly there has been a miscarriage of justice. 28 It follows that this appeal should be allowed and both convictions should be quashed. 29 I remarked earlier that the appellant was released upon parole on 13 June 1996. He was subsequently taken back into custody in relation to another matter and is presently serving a lengthy sentence with a minimum term of nine years. If a re-trial was ordered, the prosecution case would be considerably weakened absent evidence of the admissions allegedly made by the appellant to the police officers. The jury would be left with the other evidence I have reviewed and there would be obvious difficulties associated with a re-trial so long after the event. In my opinion, it would not be appropriate to call upon the appellant to stand trial again in respect of these charges. 30 Accordingly, I would not propose that a new trial be ordered. I would direct both judgment and verdicts of acquittal be entered. 31 SPIGELMAN CJ: I agree 32 SIMPSON J: I also agree. 33 SPIGELMAN CJ: The orders of the Court are as proposed by Studdert J.

R v Thomas

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