In a ruling handed down Aug. 8, the Saskatchewan Court of Appeal said “the trial judge erred in two ways that merit a new trial” for Nicholson and Vey.
Both were convicted in June 2016 of planning to kill Curtis Vey’s wife, Brigitte Vey, and Nicholson’s husband, Jim Taylor.
They were sentenced to three years in prison, but released from jail while the appeal was heard.
Writing for the court, Justice Georgina Jackson, found the trial judge “did not adequately charge the jury with respect to the appellants’ defence regarding a genuine intention to carry out the common purpose,” in ordering a new trial.
WATCH BELOW: Coverage of Angela Nicholson’s and Curtis Vey’s conspiring to murder trial.
“It must be acknowledged that charging a jury with respect to conspiracy is a difficult task,” wrote Jackson.
“The difficulty, however, is that charging the jury in this case had several distinctive features, including the evidence that Mr. Vey knew or suspected that he was being recorded and the effect of that evidence on both Mr. Vey’s and Ms. Nicholson’s culpability.”
Jackson said this was not adequately addressed in the charge to the jury.
“The jury should have been instructed that if they were satisfied that Mr. Vey did not intend to agree to carry out the common purpose, or if they had a reasonable doubt as to his intention, not only would they be required to acquit Mr. Vey, they would also be required to acquit Ms. Nicholson,” Jackson said.
Jackson also found the trial judge did not properly explain the “relationship between proof by circumstantial evidence and the requirement of proof beyond reasonable doubt.”
“In deciding whether this Court should intervene, we cannot overlook the oral recordings of Mr. Vey during his police interview and while speaking to the undercover police officer in his cell, wherein he repeatedly stated that he had entered into the conversation with Ms. Nicholson intending to teach his family a lesson, an averment supported by Brigitte Vey’s evidence,” Jackson stated.
“Where appellate review of the evidence reveals what a jury might find to be an alternate reasonable inference, it is more likely that a special instruction ought to have been given. Respectfully, I find the trial judge failed to caution the jury on how to infer guilt and the reasonable doubt instruction and, thereby, erred.”
Nicholson’s lawyer, Ron Piche, said Jackson did an extremely thorough job handing down her decision in a complicated area of law.
“The facts of this case weren’t particularly complicated, but the added element of Mr. Vey and what he may or may not have been doing when speaking into that recorder … did make it that much more complicated,” Piche told Global News.
He said Nicholson is delighted with the decision.
“It was a great relief to her and at least, for now, she can see the clouds have been parted a little bit for her and she can get on to getting back to her normal life,” Piche said.
Although a new trial has been ordered, Piche said he is not sure what the Crown will do.
Piche said the Crown has the option of re-prosecuting Nicholson and Vey or not pursuing the case further if it is not in the public interest.