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Nicholls v The Queen

Nicholls v The Queen

Case [2016] VSCA 250 17 October 2016

Appeal

Conviction

Intentially Cause Serious Injury

Sentencing

Criminal Law

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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…

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 Nicholls v The Queen

Details

AGLC: Nicholls v The Queen [2016] VSCA 250
Case: [2016] VSCA 250
Decision Date: 17 October 2016

CaseChat Overview and Summary

In the case of Nicholls v The Queen, the appellant, a defendant, was convicted on two charges of intentionally causing serious injury. Each charge pertained to a separate victim, both of whom were shot in the leg. The appeal was heard by the Court of Appeal, which was tasked with determining whether the trial judge had erred in various aspects of the trial and sentencing process. The primary issues before the court were whether the charges were properly joined on the indictment, if it was a rational decision to try the charges together, if the jury was adequately directed to consider each charge separately, and if a miscarriage of justice had occurred. Additionally, the court examined whether the sentence imposed was manifestly excessive.

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