R v Tomkins & Gunning[2001] QCA 68

COURT OF APPEAL

DAVIES JA

McPHERSON JA

AMBROSE J

CA No 282 of 2000

CA No 294 of 2000

THE QUEEN

v.

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 the hotel that night as the two appellants. The complainant described one of them as having dark hair in a pony tail and the other as having dark but shorter hair with a "sort of reddy tinge through it" and being ugly in appearance. During the course of drinking with them, he recalled removing a roll of money, that is the $300, tied in an elastic band, from his shirt pocket. 

The complainant and the two appellants left the hotel together. The bar attendant recalls that they did so, and that when they left, the complainant, whom she described as a middle-aged gentleman, was a bit tipsy. The others whom she described as younger fellows, in fact they were each aged only 24, were, she thought, "okay". Gunning, she recalled, purchased some bourbon and coke to take with them. The time, she said, was about 10.30. 

At 10.44 p.m. the complainant's keycard was used to operate on his account. Apparently this occurred twice at that time, but on neither occasion was money taken. It was, so the expert who gave evidence on this question said, an inquiry as to the balance of the account.

Given that the complainant was assaulted shortly after leaving the hotel and that, in any event, he would have no need to inquire as to the balance of his account, by far the most likely inference is that the inquiry was made by one of those who had assaulted him and taken his keycard. His assailants had demanded the complainant's pin number and he had given it to them.

It may reasonably be inferred therefore that the complainant was assaulted within 14 minutes or so of his leaving the hotel. That is also consistent with the place of his assault, which was apparently not far from the hotel.

At 10.48 p.m. the appellant Tomkins ordered two pizzas at the Eagle Boys Pizza store, handing over a $50 note for the purchase. At the time he had only 40 cents in his bank account, and had had no more than little over $5 in his bank account since 14 June.

The appellant Tomkins denied to the police that he had ever been in the alleyway where the complainant was attacked and robbed. In fact he said he did not leave home that night. However his palm print was found on a wall near blood splatters - that is, a wall in the alley - near blood splatters consistent with the attack and consistent with the complainant's blood.

Armed with the knowledge of that evidence against him he then gave evidence that he had lied to the police because he was concerned about his previous criminal record, that he and the complainant had been shuffled down the alley by two unknown persons and both of them had been beaten. He said he then ran off but did not phone the police because he was concerned that they might think he was involved. He said that he was uninjured by the assaults on him.  Plainly the jury disbelieved him.

On Tomkins' version of events that night he, Peterson and Gunning went to the Eagle Boys Pizza store. He entered to purchase some pizzas. Gunning had said to him that he was going home, and he assumed that the complainant would wait for him. When he emerged, Gunning had gone and the complainant was some distance away walking. He followed the complainant, reminded him that he, Tomkins, had offered him accommodation for the night. It was shortly after this, he said, that they were confronted by strangers, pushed down the alley and assaulted.

Gunning and Tomkins lived together. Accordingly, the jury might well have wondered why, if Gunning was going straight home, he did not take the complainant with him. The two pizzas were later delivered to their residence and neither disputed that they together consumed them there. 

Gunning did not give evidence. He admitted to the police that the three of them had left the hotel together at about 10.30 and admitted going into the alley with the complainant. By this time, according to his version to the police, Tomkins had left them to get a pizza. He and the complainant entered the alley and in or near it, they parted. This version, like Tomkins' evidence, was in my opinion highly improbable.

The evidence which I have outlined, taken together, in my opinion established a fairly strong circumstantial case that it was the appellants together who had assaulted and robbed the complainant in the alley on the night in question. That is the way in which the case was presented to the jury and I do not think their verdict was unsafe or unsatisfactory. It follows that Tomkins' appeal against conviction must be dismissed.

It was also submitted on Gunning's behalf that the learned trial judge erred in refusing his application for a separate trial and that, even if the trial judge's discretion did not miscarry on the material before him, nevertheless in retrospect the joint trial produced a miscarriage of justice in that it deprived the appellant of a fair trial. It was accepted nevertheless on the appellant's behalf that this was a prima facie case in which a joint trial was appropriate and plainly it was.

It was submitted that the evidence against each accused was quite different and up to a point that is correct. There was physical evidence linking Tomkins but not Gunning to the scene. As against that however, Gunning's version to the police was that he was at the scene with the appellant but not Tomkins.

Further however it was submitted that this was not a case where each accused was blaming the other, nor was it a case where there was a risk of inconsistent verdicts if the two accused were tried separately. This was a case in which there were inconsistent versions, however in each of them the offender sought to exculpate the other offender as well as himself.

On Gunning's version to the police, he and the complainant, but not Tomkins, entered the alley together, Tomkins having left some time previously. According to Tomkins' evidence, he and the complainant was in the alley together, but Gunning had previously left to go home.  Each of them then gave an exculpatory version of his own conduct.

But none of this in my opinion tends to show any unfairness in the joint trial. His Honour carefully directed on the evidence against each appellant and no complaint is made of that.  There is no reason to think that the jury did not understand or did not act on these directions. As I have already indicated, acting on those directions there was a fairly strong circumstantial case for conviction.

Accordingly I think that this ground of appeal must also fail, and that the appellant Gunning's appeal against conviction must also be dismissed.

The sentences, as I have already indicated, were seven years with a declaration that it was a serious violent offence in the case of Gunning, and five years in the case of Tomkins. As I have also mentioned, each was 24 at the time of commission of these offences. There was no basis upon which the learned sentencing Judge could have distinguished between the involvement of each in the commission of these offences. 

The longer sentence and the declaration was imposed upon Gunning, plainly because of his substantial previous record.  Tomkins had previous convictions over a period of about six years for stealing, unlawful use of a motor vehicle, false pretences, four counts of breaking and entering, fraud and some drug offences. He had been sentenced to short periods of imprisonment.

Gunning, on the other hand, had a substantial number of convictions since 1991, including one for attempted armed robbery in company with personal violence in 1992, for which he had been sentenced to two and a half years' imprisonment, and one for armed robbery with actual violence for which he had been sentenced to five years' imprisonment in 1995. He was on parole in respect to the second of those major offences and was also subject to a suspended sentence for housebreaking at the time of commission of these offences.

These offences, as the facts which I have described indicate, involved a savage and unprovoked attack on a much older and partially inebriated man, inflicting quite substantial injuries in and about his head, leaving him with a permanent disability as a result of his broken jaw. When he arrived at the police station, he was described as covered in blood, eyes swollen, and his nose "all over his face". He was bleeding from his nose, his mouth and his ears. He had been callously left in the alley, the appellants using the money to buy pizzas, which they took home and ate.

We have been referred to sentences by both sides, none of which is closely comparable to the facts of this case. But they do, in my opinion, demonstrate that the sentence of five years which was imposed on Tomkins was not outside the range of a sound discretionary judgment.

No complaint is made about the declaration in Gunning's sentence. The complaint made by Mr Chowdhury on his behalf is that that was a sufficient differentiation between the two offenders based solely on the previous more serious criminal record of Gunning.

In my opinion there is substance in that submission. The declaration alone has the consequence that he will not be eligible for parole until he has served 80 per cent of the term imposed upon him, and in my opinion, a sentence of five years on Gunning with a declaration, which Mr Chowdhury concedes should have been made, would have been an appropriate sentence and that consequently the sentence which was imposed on Gunning was manifestly excessive.

I would therefore in each case dismiss the appeal against conviction. In the case of Tomkins, I would refuse the application for leave to appeal against sentence. In Gunning's case, I would allow his application and allow his appeal, set aside the sentence imposed below, and substitute a sentence of five years with a declaration that it was a serious violent offence.

McPHERSON JA:  I agree.

AMBROSE J:  I agree.

DAVIES JA:  The orders are as I have indicated.

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