Nichols (a pseudonym) v The Queen - [2021] VSCA 273

SUPREME COURT OF VICTORIA

COURT OF APPEAL

S EAPCR 2020 0182

HOWARD NICHOLS (a pseudonym)[1]	Applicant
v
THE QUEEN	Respondent

[1]This judgment has been anonymised by the adoption of a pseudonym in place of the name of the applicant so as not to prejudice the proper administration of justice.

---

JUDGES:	BEACH, KAYE JJA and MACAULAY AJA
WHERE HELD:	MELBOURNE
DATE OF HEARING:	27 September 2021
DATE OF JUDGMENT:	1 October 2021
MEDIUM NEUTRAL CITATION:	[2021] VSCA 273
JUDGMENT APPEALED FROM:	DPP v [Nichols] (Unreported, County Court of Victoria, 28 November 2019)

---

CRIMINAL LAW – Conviction – Appeal – Applicant convicted of rape – Applicant’s evidence difficult to understand by reason of language difficulties – No interpreter engaged – Whether difficulty in understanding applicant’s evidence occasioned substantial miscarriage of justice – Criminal Procedure Act 2009, s 335 – Language difficulties not occasioning any miscarriage of justice.

CRIMINAL LAW – Conviction – Appeal – Applicant lied to police in record of interview – In evidence, applicant sought to explain reason for lying to police – Applicant sought to call evidence of telling the truth to other witnesses shortly after lying to police – Applicant’s prior representations admissible under ss 66 and 108 of the Evidence Act 2008 – Evidence of prior representations not led due to counsel misunderstanding trial judge’s ruling permitting evidence to be adduced only from applicant pursuant to s 108 of the Evidence Act – Misunderstandings between judge and counsel leading to relevant and significant evidence not being adduced – Substantial miscarriage of justice occasioned by reason of relevant and significant evidence not being adduced at trial – Evidence Act 2008, ss 66 and 108 – Application for leave to appeal granted – Appeal allowed – Retrial ordered.

CRIMINAL LAW – Conviction – Appeal – Allegation by prosecutor in final address of extreme collusion between applicant and defence witness – Prosecutor not aware of any basis to put allegation until after applicant had completed his evidence – Prosecutor should have sought to recall applicant if allegation of collusion was to be made – Allegation of collusion should not have been made without applying to recall applicant – No objection taken by trial counsel – No miscarriage of justice occasioned by prosecutor’s address.

---

APPEARANCES:	Counsel	Solicitors
For the Applicant	Mr D A Dann QC	Stary Norton Halphen
For the Respondent	Mr R L Gibson QC	Ms A Hogan, Solicitor for Public Prosecutions

BEACH JA
KAYE JA
MACAULAY AJA:

On 28 November 2019, following a seven day trial in the County Court, the applicant was found guilty of one charge of rape contrary to s 38(1) of the Crimes Act 1958. On 24 April 2020, following a plea hearing on 27 March 2020, he was sentenced to a term of imprisonment of 6 years, with a non-parole period of 3 years and 9 months.[2]
[2]DPP v [Nichols] [2020] VCC 475 (‘Sentencing Reasons’).

The applicant now seeks leave to appeal against his…

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 Nichols (a pseudonym) v The Queen

Details

AGLC: Nichols (a pseudonym) v The Queen [2021] VSCA 273
Case: [2021] VSCA 273
Decision Date: 1 October 2021

CaseChat Overview and Summary

The applicant, identified as Nichols, appealed against his conviction for rape. The appeal was heard in the higher court, which considered the fairness of the trial process and the accuracy of the conviction. The primary issues before the court were whether the applicant's language difficulties, the non-admission of prior representations, and the prosecutor's allegations of collusion between the applicant and a defence witness led to a substantial miscarriage of justice.

The court found that while the applicant's language difficulties made it challenging to understand his evidence, this did not result in a miscarriage of justice. The trial judge had taken steps to ensure that the applicant's evidence was understood as best as possible. Additionally, the court ruled that the applicant's prior representations were not admissible as they were intended to be led only by the applicant himself, not through his counsel. This misunderstanding between the judge and counsel led to significant evidence not being presented at the trial, resulting in a miscarriage of justice. The court also concluded that the prosecutor's allegations of collusion, made without recalling the applicant, did not cause a miscarriage of justice as no objection was raised by the trial counsel.

The court granted leave to appeal and allowed the appeal, ordering a retrial for the applicant. The court's decision hinged on the substantial miscarriage of justice caused by the non-admission of prior representations. The final orders included the quashing of the conviction and the ordering of a retrial, ensuring that the applicant would have the opportunity to present the omitted evidence.

Orders