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

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.
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.
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.
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.
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…

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 Nicolaides v The Queen

Details

AGLC: Nicolaides v The Queen [2005] WASCA 186
Case: [2005] WASCA 186
Decision Date: 27 SEPTEMBER 2005

CaseChat Overview and Summary

The case of Nicolaides v The Queen was heard in the High Court of Australia. The appellant, Nicolaides, was convicted of conspiracy to defraud the Commonwealth. The central issue before the Court was whether the conspiracy to defraud must be directed at a particular Commonwealth entity, or if it was sufficient that the conspiracy targeted the Commonwealth as an abstract entity. The appellant argued that the conspiracy needed to be directed at a specific Commonwealth entity, while the respondent, the Crown, contended that the conspiracy was validly charged as targeting the Commonwealth in general.

The Court considered whether the conspiracy to defraud required a specific Commonwealth entity to be identified or if it was sufficient that the offence targeted the Commonwealth in its entirety. The Court held that the conspiracy charge was valid as it targeted the Commonwealth as an abstract entity, rather than a specific Commonwealth entity. The Court reasoned that the requirement for the conspiracy to be directed at a particular Commonwealth entity would unnecessarily narrow the scope of the offence, which is not supported by the statutory language. The Court also noted that the conspiracy to defraud the Commonwealth was a continuing offence, meaning that the identity of the Commonwealth entity could evolve over time.

As a result of the Court's decision, the appellant's conviction was upheld. The Court held that the conspiracy to defraud the Commonwealth did not need to be directed at a specific Commonwealth entity, and the conspiracy charge was valid as it targeted the Commonwealth in its entirety. The Court further held that the conspiracy was a continuing offence, which meant that the identity of the Commonwealth entity could change over time. The case underscores the importance of understanding the scope of the offence of conspiracy to defraud the Commonwealth, and highlights the need for careful drafting of conspiracy charges to ensure they are valid and effective.

Orders