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Court of Criminal Appeal 13 April 1999

R v Thomas

[1999] NSWCCA 68

Assault & violence
CRIMINAL LAW APPEAL FRESH EVIDENCE WHETHER MISCARRIAGE OF JUSTICE.

Citation: Thomas v R [1999] NSWCCA 68
Court: New South Wales Court of Criminal Appeal
Date: 13 April 1999
Judge(s): Spigelman CJ, Studdert J, Simpson J

Background

The appellant was convicted in May 1988 before Hunt J and a jury on two counts arising from a serious assault at Parramatta Gaol on 14 August 1986. The victim was found unconscious in his cell with severe injuries. The appellant was found guilty of assault occasioning actual bodily harm and of causing grievous bodily harm with intent to murder, receiving concurrent sentences of four and fifteen years penal servitude respectively, with a non-parole period of eleven years.

A significant part of the Crown's case rested on admissions the appellant allegedly made to two police officers during interview. According to those officers' trial evidence, the appellant admitted his involvement in the attack and stated he had acted with intent to kill the victim.

In March 1996, one of those police officers gave evidence at the Police Royal Commission. He admitted that his trial evidence was false and that the appellant had been "verballed" (that is, that the alleged admissions were fabricated). The same officer also admitted to wide-ranging corrupt conduct, including giving perjured evidence in other cases and receiving corrupt payments. The appellant filed his notice of appeal in October 1997, following advice from the Attorney General's Department about the Royal Commission evidence.

  • Whether the police officer's Royal Commission admissions constituted fresh evidence that could ground an appeal against conviction
  • Whether, with the police evidence effectively removed from the Crown case, there was a significant possibility that the jury would have acquitted the appellant
  • Whether a miscarriage of justice had occurred
  • Whether, if the convictions were quashed, a retrial should be ordered

Decision

The court applied the principles from Gallagher v The Queen and Mickelberg v The Queen on the admission and effect of fresh evidence, as refined in R v Hemsley. The central question under those authorities is whether a miscarriage of justice occurred, assessed by considering whether there is a significant possibility that the jury would have acquitted had the fresh evidence been available. The relevant inquiry required assessing the credibility and cogency of the fresh evidence in the context of the whole trial.

The court reasoned that either the police officer's Royal Commission evidence was false, or his trial evidence was. Accepting the former as the more likely truth, the court treated the trial evidence of both police officers as valueless. The second officer's evidence, though not directly challenged at the Royal Commission, could not survive the destruction of the first officer's credibility.

Stripped of the police admissions, the remaining Crown case depended on the evidence of two fellow inmates, Winefield and Bell. Winefield's evidence was capable of supporting the assault conviction, but the more serious count (intent to kill) relied heavily on admissions Winefield claimed the appellant made after the attack, together with the now-discredited police evidence. The court found it impossible to ignore that the jury may have been influenced by the false police evidence, both directly on the question of intent and indirectly in its assessment of Winefield's credibility. There was, in the court's view, a significant possibility that without the police evidence the jury may have entertained a reasonable doubt on both counts.

As to a retrial, the court declined to order one. The Crown case would be considerably weakened without the police admissions, the events were now over a decade old, and the appellant was already serving a lengthy sentence for an unrelated matter. In those circumstances, the court considered it inappropriate to require the appellant to stand trial again.

Orders Made

  • Appeal allowed
  • Both convictions quashed
  • Judgments and verdicts of acquittal entered on both counts

Key Takeaways

  • Where a police officer's trial evidence is subsequently shown to be fabricated through Royal Commission admissions, the Court of Criminal Appeal will treat that evidence as having no probative value for the purposes of a fresh evidence appeal.
  • A conviction cannot safely stand where there is a significant possibility that the jury may have relied on false police evidence, either directly or indirectly by using it to shore up the credibility of other Crown witnesses.
  • The "significant possibility" test from Gallagher v The Queen and Mickelberg v The Queen requires the court to assess fresh evidence in the full context of the trial, including its potential flow-on effect on the jury's evaluation of other evidence.
  • The Court of Criminal Appeal confirmed it has a discretion not to order a retrial even after quashing convictions, and will exercise that discretion where the remaining evidence is substantially weakened, the events are distant in time, and a new trial would serve no practical purpose.
  • Fresh evidence appeals arising from Police Royal Commission disclosures were, by 1999, an established and recognised category of case before the New South Wales Court of Criminal Appeal.

Legislation and Cases Referenced

Legislation:
- Crimes Act (NSW), ss 27, 33, 59
- Sentencing Act 1989 (NSW)
- Criminal Appeal Act (NSW)

Cases:
- Gallagher v The Queen (1986) 160 CLR 392
- Mickelberg v The Queen (1989) 167 CLR 259
- R v Hemsley (unreported, NSWCCA, 8 December 1995)