SUPREME COURT OF VICTORIA
COURT OF APPEAL
S APCR 2015 0149
| WILLIAM LINDSAY NICHOLLS | Appellant |
| v | |
| THE QUEEN | Respondent |
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| JUDGES: | MAXWELL P, OSBORN and SANTAMARIA JJA |
| WHERE HELD: | MELBOURNE |
| DATE OF HEARING: | 21 June 2016 |
| DATE OF JUDGMENT: | 17 October 2016 |
| MEDIUM NEUTRAL CITATION: | [2016] VSCA 250 |
| JUDGMENT APPEALED FROM: | DPP v Nicholls (Unreported, County Court of Victoria, Judge Coish, 23 March 2015) |
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CRIMINAL LAW – Appeal – Conviction – Two charges of intentionally cause serious injury – Charges tried together – Whether charges properly joined on indictment – Whether rational forensic decision to have charges heard together – Whether directions to jury on separate consideration of charges adequate – Whether miscarriage of justice – Appeal dismissed (by majority).
CRIMINAL LAW – Appeal – Sentence – Intentionally cause serious injury – Two offences – Each victim shot in leg – Sentence of 8 years’ imprisonment on each charge – Total effective sentence 11 years’ imprisonment, non-parole period of 8 years – Whether manifestly excessive – No evidence of remorse – Serious violent offender on second charge – Nash v The Queen (2013) 40 VR 134 – Appeal dismissed (unanimously).
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| APPEARANCES: | Counsel | Solicitors |
| For the Appellant | Mr G J Lyons QC with Ms K Argiropoulos | Grigor Lawyers |
| For the Respondent | Mr B F Kissane QC | Mr J Cain, Solicitor for Public Prosecutions |
MAXWELL P:
Summary
After a trial before a County Court jury, the appellant was convicted of two charges of intentionally causing serious injury. He was sentenced to eight years’ imprisonment on each charge. The total effective sentence was 11 years’ imprisonment and a non-parole period of eight years was fixed. The appellant appeals by leave against both conviction and sentence.
As will appear, defence counsel elected not to seek to have the charges tried separately. The ground of appeal against conviction contends that the joint trial of the charges resulted in a substantial miscarriage of justice. It was common ground on the appeal that the question for determination was whether, viewed objectively, defence counsel’s forensic decision not to seek separate trials could be explained ‘on the basis that it resulted or could have resulted in a forensic advantage’ to the appellant.[1]
[1]TKWJ v The Queen (2002) 212 CLR 124, 133 [27] (‘TKWJ’); James v The Queen (2013) 39 VR 149, 156 [14]; Knowles (a Pseudonym) v The Queen [2015] VSCA 141 [131]–[134].
The submission for the appellant was that the decision not to seek separate trials was not capable of explanation on that basis. That is, there was ‘no conceivable forensic advantage’ to be gained by adopting that course. Alternatively, any such advantage was overwhelmed by the grave disadvantage which inevitably attached to the adoption of that course. The submission for the Crown, on the other hand, was that defence counsel’s decision could be seen to have had a rational foundation in forensic advantage and, hence, that there was no miscarriage of justice.
For reasons which follow, I consider that the…
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- AGLC
- Nicholls v The Queen [2016] VSCA 250
- Case
- [2016] VSCA 250
- Decision Date
CaseChat Overview and Summary
The court found that the charges were properly joined on the indictment and that it was a rational decision to try them together, given the similarities in the incidents. The court also concluded that the trial judge's directions to the jury were sufficient to ensure each charge was considered separately. The court rejected the argument that a miscarriage of justice had occurred, as there was no error in the trial process that could have affected the outcome. Furthermore, the court found that the sentence, which amounted to 8 years' imprisonment on each charge, with an effective total sentence of 11 years' imprisonment and a non-parole period of 8 years, was not manifestly excessive. The court noted that the appellant was a serious violent offender, particularly in relation to the second charge, and there was no evidence of remorse.
As a result of the findings, the Court of Appeal dismissed the appeal unanimously. The reasoning of the majority was that the trial judge had not erred in any significant way, and the sentence was not manifestly excessive given the nature of the offences and the appellant's criminal history. No miscarriage of justice was identified, and the appeal was accordingly dismissed.
Orders
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Background
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Evidence
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