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Court of Criminal Appeal 11 March 2002

R .v. NICOLA

[2002] NSWCCA 63

Sexual offences

Citation: R v Nicola [2002] NSWCCA 63
Court: NSW Court of Criminal Appeal
Date: 11 March 2002
Judges: Spigelman CJ, Barr J, Bergin J

Background

The appellant was convicted in the District Court on two counts of sexual intercourse without consent. The first count related to an incident in December 1993, when the complainant alleged the appellant sexually assaulted her while she slept in a bunk bed at his then-girlfriend's home, the night of his bucks' party. The second count concerned an incident in November 1999, when the complainant alleged she awoke at approximately 3am to find the appellant having intercourse with her while she slept on a sofa bed at his family home.

The appellant denied both counts. He disputed the physical layout of the house on the 1993 occasion and called witnesses to support his version of events. He also denied the 1999 offence and declined requests by police to provide a voluntary blood sample for DNA testing.

A key piece of prosecution evidence arose from a discarded styrofoam coffee cup. When the appellant visited a police station seeking the return of certain clothing in February 2000, he drank from a cup and threw it in a bin. Police recovered the cup and used it to obtain a DNA profile. That profile matched DNA found in vaginal swabs taken from the complainant and on boxer shorts she had worn on the night of the 1999 offence. The DNA profile had a frequency of fewer than one in ten billion individuals.

  • Whether the guilty verdict on the first count (1993 offence) was unreasonable or unsupported by the evidence.
  • Whether fresh or new evidence existed that warranted reconsideration of the first count.
  • Whether the DNA evidence obtained from the discarded styrofoam cup was improperly obtained, and whether it should have been excluded under section 138 of the Evidence Act 1995.
  • Whether the trial judge erred in admitting the DNA evidence and finding no impropriety in the police retrieval of the cup.

Decision

On the first count, the Court considered the competing accounts of the physical circumstances in the complainant's home in December 1993. The defence called multiple witnesses, including the appellant's wife and her sister, to challenge the complainant's description of the bunk bed arrangement. The Court found the verdict on the first count was open to the jury on the evidence before it.

The Court also rejected the ground relating to fresh or new evidence, finding it did not warrant disturbing the conviction on the first count.

On the admissibility of the DNA evidence, the trial judge had found that police conduct in retrieving the cup was not improper and did not contravene any Australian law. The cup had been discarded by the appellant himself into a waste bin, and the trial judge preferred the evidence of Detective Jones over the appellant on the question of where the cup was thrown. The Court of Criminal Appeal found this conclusion was open to the trial judge on the evidence and could not be successfully challenged on appeal.

The trial judge had also addressed, in the alternative, whether he would have exercised his discretion to admit the evidence even if some impropriety had been found. The Court of Criminal Appeal considered it unnecessary to examine this secondary question, given the primary finding of no impropriety was unassailable.

Orders Made

  • The appeal against conviction was dismissed.

Key Takeaways

  • Retrieval of a DNA sample from an item voluntarily discarded by an accused in a public or semi-public setting does not necessarily constitute improper conduct or contravene Australian law for the purposes of section 138 of the Evidence Act 1995.
  • A trial judge's factual findings about the circumstances of police conduct in obtaining evidence will be upheld on appeal where those findings were open on the evidence presented at trial.
  • Where a primary finding negates impropriety under section 138, an appellate court need not address the secondary question of whether the trial judge would have exercised a discretion to admit the evidence regardless.
  • In dismissing the appeal, the Court confirmed that a verdict is not unreasonable merely because defence witnesses contradicted the complainant's account, provided the jury's finding was one reasonably open on the totality of the evidence.
  • DNA evidence matching a profile occurring in fewer than one in ten billion individuals, derived from vaginal swabs and clothing worn by the complainant, was treated as powerful corroboration in support of the Crown case on the 1999 count.

Legislation and Cases Referenced

Legislation:
- Evidence Act 1995 (NSW), section 138 (exclusion of improperly or illegally obtained evidence)

Cases cited: No specific cases were identified in the portions of the judgment provided.