Nicolaides v The Queen

[2005] WASCA 186

JURISDICTION     :   SUPREME COURT OF WESTERN AUSTRALIA

TITLE OF COURT :   THE COURT OF APPEAL (WA)

CITATION:   NICOLAIDES -v- THE QUEEN [2005] WASCA 186

CORAM:   STEYTLER P

WHEELER JA
MILLER AJA

HEARD:   8 AUGUST 2005

DELIVERED          :   8 AUGUST 2005

PUBLISHED           :  27 SEPTEMBER 2005

FILE NO/S:   CCA 186 of 2003

BETWEEN:   BRADLEY CHRISTOPHER NICOLAIDES

Appellant

AND

THE QUEEN
Respondent

ON APPEAL FROM:

Jurisdiction              :  DISTRICT COURT OF WESTERN AUSTRALIA

Coram  :JENKINS DCJ

File No  :IND 458 of 2003

Catchwords:

Turns on own facts

Legislation:

Nil

Result:

Appeal allowed

Category:    B

Representation:

Counsel:

Appellant:     Mr S R Luttrell

Respondent:     Mr D Dempster

Solicitors:

Appellant:     Kott Gunning

Respondent:     State Director of Public Prosecutions

Case(s) referred to in judgment(s):

Grey v The Queen (2001) 75 ALJR 1708

Case(s) also cited:

Nil

1. STEYTLER P:  I have read the judgment of Wheeler JA.  The reasons which her Honour has given sufficiently set out my own reasons for concluding that the State was right in its concession that this appeal against conviction should be allowed, the convictions quashed and a retrial ordered.  There is nothing I wish to add.

2. WHEELER JA:  This is an appeal against conviction.  At the hearing of the appeal, the Court allowed the appeal, quashed the convictions and ordered a retrial.  We indicated that reasons would be published in due course.  These are my reasons for allowing the appeal.

3. The appellant was convicted after trial by jury in the District Court of one count of unlawful wounding with intent to do grievous bodily harm and one count of going armed in public to cause terror.  The charges arose out of an incident that occurred in September 2002 outside the Taipan Room nightclub in Northbridge in which the complainant, Dimov, was shot. 

4. The State conceded the appeal in relation to ground 1 of the appellant's grounds of appeal.  At the hearing of the appeal, counsel for the State indicated that the State also conceded the appeal in relation to ground 4 of the grounds of the appeal and that although the State submitted that ground 2 was made out, the State made no concession in relation to that particular ground of appeal.

5. Ground 1 of the appellant's grounds of appeal relates to the evidence of one Jootsen.  At the trial, evidence was led by the prosecution from Jootsen who told of an approach by the appellant to arrange a meeting with Dimov after the shooting.  In his evidence, Jootsen denied that he had received any benefit as a result of his co‑operation with the police.  However, Jootsen had been sentenced on 7 January 2003 to a suspended term of imprisonment for an aggravated burglary offence.  The sentencing Judge indicated in his sentencing remarks that the sentence had been suspended because of the terms of a letter of comfort received by the Court and that should Jootsen renege then he could be brought back to be resentenced.  In re‑examination, when asked by the prosecutor if the sentencing Judge was aware of his co‑operation with the police, Jootsen said, "No" (AB 416).  Trial counsel in respect of the appellant's trial did not become aware of this matter until a subsequent trial of the appellant in the Supreme Court.

6. In submissions filed by the State it was conceded, in relation to ground 1 of the appellant's grounds of appeal, that there was

non‑disclosure.  Although it appears that the prosecutor at trial was not aware of the material which should have been disclosed, the State agreed that the non‑disclosure amounted to a substantial miscarriage of justice.  As the State submitted, the non‑disclosure caused a substantial miscarriage of justice for three reasons in combination:

1.Jootsen was a material witness and it cannot be said that, had disclosure been made, conviction was inevitable (Grey v The Queen (2001) 75 ALJR 1708);

2.The inadvertent use of the non‑disclosure in re‑examination had the effect that Jootsen's apparent lie or misrepresentation in that respect was used to support the prosecution's case; and

3.Had there been disclosure, it is likely that the trial Judge would have given the jury a warning in relation to Jootsen.

1. Ground 4 of the appellant's grounds of appeal relates to evidence given at trial by three witnesses, including Dimov, of a struggle between Dimov and the person who fired the gun (AB 77, 91, 345).  The appellant submitted that this evidence raised the issue of accident.  In its submissions, the State also referred to evidence given at trial by a Constable Tovey of a confession to him in which the appellant indicated that there had been a fight and that the gun had discharged (AB 424).  The State submitted that, in these circumstances, the jury should have been directed about the defence of accident, and the issue of potential criminal negligence in the handling of the gun. 

2. Ground 2 of the appellant's grounds of appeal relates to identification evidence given by the witness Gola.  In its submissions, the State conceded that "the evidence is so inherently unreliable and weak as to be inadmissible", but noted that no objection was taken at trial.  Counsel for the State indicated that although it was accepted that ground 2 was made out, there was no concession by the State in relation to that ground that it was a matter which should alone result in the quashing of the convictions.

3. As was properly conceded by the State, at least for the reasons relating to grounds 1 and 4, this is a case in which the interests of justice require that the appeal be allowed, the convictions quashed and a retrial ordered.

4. MILLER AJA:  I have had the opportunity of reading in draft the reasons for judgment of Wheeler JA.  I agree with those reasons and there is nothing I wish to add.