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Nichols, Howard (a pseudonym) v The Queen  VSCA 273
Victorian Court of Appeal
Beach, Kaye JJA and Macaulay AJA
Nichols, Howard (a pseudonym) v The Queen
1 October 2021
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.