New South Wales Court of Criminal Appeal CITATION : R .v. NICOLA [2002] NSWCCA 63 FILE NUMBER(S) : CCA 60611/01 HEARING DATE(S) : 11 March 2002 JUDGMENT DATE : 11 March 2002 PARTIES : Steven NICOLA - Appellant Regina - Respondent JUDGMENT OF : Spigelman CJ at 54; Barr J at 1; Bergin J at 55 LOWER COURT JURISDICTION : District Court LOWER COURT FILE NUMBER(S) : 00/21/1029 LOWER COURT JUDICIAL Solomon DCJ OFFICER : COUNSEL : Mr P.M. Naughtin for the Appellant Mr R.A. Hulme for the Crown SOLICITORS : Robert Mann & Davis Solicitors for the Appellant S.E. O'Connor for the Crown LEGISLATION CITED : Evidence Act 1995 DECISION : See Judgment at Paragraph 56 IN THE COURT OF CRIMINAL APPEAL 60611/01 Spigelman CJ Barr J Bergin J 11 March 2002 Regina .v. Steven NICOLA Judgment 1 Barr J: The appellant, Steven Nicola, appeals against convictions entered in the District Court. He was charged that between 1 and 11 December 1993 at St Marys he had sexual intercourse with the complainant, whom I shall call AB, without her consent and knowing that she was not consenting and that on 13 November 1999 at Bidwill he had sexual intercourse with AB without her consent and knowing that she was not consenting. 2 After a trial of about two weeks a jury found him guilty on both counts. Solomon DCJ sentenced him on the first count to imprisonment for a term of three years and three months with a non-parole period of two years and on the second to imprisonment for a term of five years with a non-parole period of three years. The sentences were made partly cumulative and the effect was a total sentence of seven years with a non-parole period of five years. 3 The complainant's best friend was Julie Clarke. Ms Clarke lived with her mother in a house at St Marys and the complainant stayed there overnight from time to time. Ms Clarke began going out with the appellant and the complainant met him in 1993. He and Ms Clarke married on 11 December 1993. About a week before the wedding a function took place called a bucks' night, and on that occasion the complainant stayed the night at Ms Clarke's house. The appellant had been residing there for some time. 4 The complainant told the jury that she and Ms Clarke slept in bunk beds in Ms Clarke's bedroom, that she occupied the top bunk and that Ms Clarke occupied the bottom bunk. During the night the complainant awoke and found the appellant, who had returned from his party, fondling her breasts and genitals. He inserted his finger into her vagina. When he was challenged he said that he wanted one last fling before getting married. He took the complainant's hand and put it on his erect penis. He told the complainant to "pull it". The complainant refused. The appellant told the complainant not to tell Ms Clarke, then got into the lower bunk bed with Ms Clarke. 5 The complainant returned home the next day and complained to her parents about the appellant. 6 On the night of 12 November 1999, following an argument with her partner, the complainant and her young son were invited to spend the night at the home of the appellant and his wife, the former Ms Clarke. A sofa bed was made up in the lounge and the complainant was provided with nightclothes, including a pair of boxer shorts. She wore the shorts and slept on the sofa bed with her son. She awoke at about 3am and found the appellant lying behind her having sexual intercourse with her, his penis in her vagina. She told him to get off. He asked her not to tell his wife. He apologised and blamed his actions on the effects of alcohol. He left the room. 7 The complainant woke the appellant's wife and told her what had happened. The appellant's wife told him that she wanted him to leave the house. She drove him to her parents' home, where a discussion took place. Later on the two of them returned to the house and the appellant's wife told the complainant that she had spoken to her parents and that she did not believe the accusation. 8 She drove the complainant to the complainant's parents' home. The complainant told her brother and then her father that she had been raped by the appellant. She also telephoned her mother, who was in another house at the time, and complained to her. On this second occasion the police were contacted. The complainant was taken to Nepean Hospital where she was examined. A number of swabs and smears were taken. 9 On 14 November 1999 police officers arrested the appellant. His wife was asked to provide the boxer shorts that the complainant had worn. She handed them over. 10 The appellant voluntarily took part in a recorded interview with investigating police officers and denied having had sexual intercourse with the complainant on either occasion. He said that he could not remember where he had slept on the night of his bucks' party in 1993 and that he did not know whether there were bunk beds there at the time. He also told the police that he had been unable to achieve an erection for some time. He was asked whether he had had sexual intercourse with his wife on the night that the complainant stayed at the house in 1999 and he said that he had not. (His wife gave evidence at trial contrary to those two assertions). 11 The investigating police officers asked the appellant's solicitor a number of times whether the appellant would provide a blood sample for the purposes of DNA analysis but the requests were declined. 12 On 28 February 2000 the appellant attended Mount Druitt Police Station to ask for the boxer shorts to be returned. Whilst he was waiting for Detective Jones to attend to him he was spoken to by Mrs Gloria Marsh, a neighbour of the appellant who worked at the police station. He asked her for a cup of coffee. She handed him a styrofoam cup containing coffee. 13 Detective Jones arrived whilst the appellant was drinking the coffee and they went together to the detectives' room. When he had finished drinking from the cup the appellant threw it into the waste paper bin by Detective Jones' desk. After the interview was over and the appellant had left, Detective Jones took the cup and secured it as an exhibit. 14 The swabs and smears taken from the complainant on 13 November 1999 were analysed, as was material taken from the boxer shorts the complainant had worn. Semen was detected on the vaginal smears, the vulval swab and the shorts. DNA was recovered from the shorts and was found on analysis to be a mixture of types comprising a major and a minor component. The major component could not have originated from the complainant or from her partner. It had the same DNA profile as the DNA recovered from the styrofoam cup. The major component of the DNA taken from the swabs was also the same as that from the styrofoam cup. That DNA had a profile occurring in the community at a rate of fewer than one in 10 billion individuals. 15 The presence of semen on the boxer shorts producing DNA having a profile identical to that of the DNA obtained from the styrofoam cup would not have been a surprise. One might well have expected to see the appellant's semen on the boxer shorts since they apparently belonged to his wife. The DNA recovered from the vaginal swab, however, was an entirely different matter. 16 The first and third grounds of appeal may be dealt with together. The first asserts that the verdict of guilty on the first count is unreasonable or cannot be supported by the evidence or is a miscarriage. The third relies on what is said to be new or fresh evidence going to the circumstances of the first count. 17 As I have said, the Crown case was that the complainant, Ms Clarke, and eventually the appellant, all slept in the one room on the occasion giving rise to the first count. The complainant occupied the top bunk and the others the bottom bunk. 18 A number of witnesses were called for the defence to throw doubt on the circumstances described by the complainant. 19 The appellant gave evidence denying that the event happened at all, denying that the complainant was in the room in which he slept, denying that there were bunk beds in the room in which he slept and denying sleeping with Ms Clarke on the bottom bunk. He said that he slept with her on a double mattress and that they had never slept in a bunk bed in that house. He said that from the time he began living in that house there were no bunk beds there. 20 The appellant's wife said that the complainant did not sleep in her bedroom on the night in question but on a camp bed in the lounge. She said that by December 1993 the bunks in the house had been taken down, removed to a shed and tied up. They had never been set up in the room the complainant spoke about. 21 The appellant's wife's sister, Mrs Thurston, said that the complainant slept on a camp bed in the lounge and that she and her mother had erected it there. She said that bunks were set up only in the back room of the house and never in the second bedroom, the one described by the complainant. She said that she lived in the house between July 1993 and April 1994 and that there were no bunks in the house during that time. 22 The mother of the appellant's wife, Mrs Clarke, said that bunks had only ever been set up in the sunroom, the back room of the house, and that they had been dismantled and stowed away after the marriage of a daughter in August 1992. She said that a camp bed had been prepared for the complainant on the night in question and that she had slept on it. She said that there were no bunk beds in the house for the whole of 1993. Photographs were tendered which it was asserted supported these assertions, but it appears that there was no photograph of the bedroom where the complainant said the attack took place. 23 The defence case was that the complainant's motive for fabricating her evidence was her jealousy about the relationship between the appellant and Ms Clarke. 24 It was submitted on appeal that the jury were bound to have entertained a reasonable doubt about the guilt of the appellant because of the striking discrepancies between the evidence of the complainant on the one hand and the evidence I have summarised on the other. Attention was drawn to the size of the appellant, a man of six foot two or six foot three and the consequent unlikelihood that he would share a bunk with his fiancee. 25 This Court is bound in dealing with a ground of appeal of this kind to make proper allowance for the superior position that the jury occupied as the tribunal of fact which saw and heard the witnesses giving their evidence. 26 No doubt the jury took advantage of that position in their evaluation of the witnesses. There were reasons for concluding that the complainant was telling the truth. First, she complained to her mother as soon as she returned home on the following day. Secondly, it seems unlikely that she had the asserted motive to make a false accusation against the accused. If her intention was to come between the appellant and Ms Clarke, why tell only her mother? 27 The complainant told her mother that the assault occurred on the top bunk whilst Ms Clarke was on the bottom bunk. Both the complainant and her mother gave evidence of the terms of the complaint. The complainant's father gave evidence to support the terms of the complaint. 28 There was evidence that after the 1999 incident the complainant's mother telephoned the appellant's wife and remarked to her that this was not the first time that the appellant had sexually assaulted the complainant, that he had touched her in 1993. She said that she did not tell her before because it was so near the wedding but that she was telling her now. She said that she could not remember whether she had said anything to the appellant's wife about bunks. 29 The appellant's wife gave evidence, called by the Crown. She said that the complainant's mother telephoned her in 1999 and told her: This isn't the first time Steven's done this, he raped (the complainant) back on his bucks' night. 30 She continued by saying that the complainant's mother had told her that the appellant had raped the complainant on the bottom bunk while she, Ms Clarke, was asleep on the top. She said she responded: I think I was sleeping on the bottom bunk, not the top. 31 She said by way of explanation that she knew that there were no bunks but said what she did say to see what the complainant's mother's response would be. 32 It seems to me that the jury might well have seen this as an extraordinary piece of evidence. They must have asked themselves why the appellant's wife had agreed with the complainant's mother that there were bunks in the room at a time when she knew there were not, if she was telling the truth. 33 That evidence was likely to throw doubt on the evidence of the other witnesses who had given evidence about the arrangement of bedroom furniture at the house. They were all related to the appellant or his wife and the jury would have reasoned that they had all discussed the matter beforehand. They might very well have decided to come up with a common untrue story. Those were matters to which the jury would have been alive in view of the preceding evidence of the complainant and the appellant's wife. By the time those family witnesses gave their evidence the jury were well aware of the issue about furniture and would have closely scrutinised them as they gave their evidence. 34 The complainant, on the other hand, seems to have been undamaged in cross-examination. She was supported, as I have said, by her evidence of contemporaneous complaint. The jury were entitled to regard the evidence of what the appellant's wife said about the presence of bunks as true and thus supporting the complainant. 35 I do not think that the verdict is unreasonable or unsupported by the evidence. I do not think that there has been any miscarriage of justice. 36 The third ground of appeal relies on the proposed evidence of four further members of the appellant's and his wife's families. In addition the Court was told in oral submissions that it was desired to add the name of a fifth witness, Ms Sharon Lonsdale, to the list of desired witnesses. Other than Ms Lonsdale, all the witnesses have sworn affidavits deposing to the absence of bunk beds in the relevant place at the relevant time in 1993. 37 It must have been obvious to those advising and acting for the appellant at the trial that such members of the families of the appellant and his wife might have been able to say something about the arrangement of furniture at the house. It appears from the affidavits of each of the witnesses that this Court has seen that he or she was not invited to give evidence at the trial. One of the witnesses says that she was very busy at the time and so could not have given evidence if asked. The others say, or leave it to be assumed, that they were never asked to give evidence. 38 The Court was told this morning that one of the witnesses was busy moving house at the time; another was heavily pregnant; and a third was not well. It seems to me that all and any of these witnesses, notwithstanding the difficulties now asserted as having stood in their way, could have been required by subpoena to come to Court and give evidence. 39 In my opinion none of this evidence is fresh. In my opinion the appropriate inference is that the defence did not call any of these witnesses either because it did not think it necessary to do so, or did not desire to do so. I would dismiss this ground of appeal. 40 The remaining ground of appeal asserts that the evidence about the DNA taken from the styrofoam cup should not, pursuant to the provisions of s 138 Evidence Act, have been received into evidence. 41 Section 138(1) Evidence Act provides as follows: 138. Exclusion of improperly or illegally obtained evidence (1) Evidence that was obtained: (a) improperly or in contravention of an Australian law, or (b) in consequence of an impropriety or of a contravention of an Australian law, is not to be admitted unless the desirability of admitting the evidence outweighs the undesirability of admitting evidence that has been obtained in the way in which the evidence was obtained. 42 It is submitted that the appellant made clear to the police that he did not wish to provide blood, and consequently DNA, for examination and analysis. The police, however, ignored his express wishes and acted improperly in obtaining the styrofoam cup and having it examined. 43 His Honour permitted the defence to test the admissibility of this evidence on a voir dire. The investigating police officers, particularly Detective Jones, Mrs Marsh, the appellant, his solicitor Mr Walters, and his wife all gave evidence and were cross-examined. After two days his Honour delivered a careful judgment explaining his reasons for admitting the evidence. 44 The evidence was critical because there was no innocent way the accused could explain how his semen came to be in the complainant's vagina. If the evidence of the cup and subsequent DNA test results were received into evidence there would be a high probability that the semen was the appellant's since the DNA profile in the matching samples occurred so infrequently in the Australian population. 45 The appellant and his wife gave evidence that the investigating police officers, Detective Senior Constable Croyston and Detective Senior Constable Jones, approached them directly at least five times and requested the appellant to give a blood sample. The detectives denied having done so. The Crown case was that they had asked Mr Walters a number of times but had never approached the accused or his wife in that regard. 46 His Honour expressed himself not to be satisfied that the conversations asserted by the appellant and his wife occurred. His Honour was satisfied that the two detectives had told the truth when they said that the only conversations they had had about DNA sampling were with Mr Walters. 47 His Honour went on to deal with the evidence of Mrs Marsh. She was a neighbour of the appellant and his wife and there had apparently been a dispute between them about the behaviour of the appellant's dog. This might have been suggested as some reason why Mrs Marsh would contrive to have the appellant drink from a cup with the intention of recovering it later on in order to secure material for the desired DNA analysis and tests. 48 His Honour expressed himself satisfied that Mrs Marsh was telling the truth. He was satisfied that it was the accused who asked Mrs Marsh for a cup of coffee and not the other way round as the accused had sworn. He accepted that she was telling the truth when she said that she handed him a cup of coffee in a white styrofoam cup, that he sat down to drink it at the front counter of the police station and that as he did so Detective Jones arrived and took him upstairs. 49 A further difference arose between the evidence of Detective Senior Constable Jones and the accused. It was the evidence of Detective Jones that the accused finished drinking the coffee in his presence and threw the cup into a garbage bin next to the detective's desk. It was the appellant's evidence that he had thrown the cup into a waste bin in the foyer of the police station. His Honour preferred Detective Jones' evidence, principally it seems because Detective Jones had a good reason to remember where the cup was at the time he retrieved it. The accused, having no notion of what might be intended or what might follow, would have no reason to remember where he threw an empty cup. 50 His Honour concluded that the retrieval by the police of the cup and its subsequent submission for testing and analysis were not improper. The evidence about the cup and that derived from the use thereafter made of the cup was therefore not evidence that was obtained improperly or in contravention of an Australian law or in consequence of an impropriety or of a contravention of an Australian law. 51 His Honour went on to deal with the state of affairs which would arise if, notwithstanding his finding there was no impropriety, that there was in fact some propriety and the discretion of the Court was required to be exercised, for the section does not render inadmissible per se evidence that comes within its purview. 52 His Honour expressed the view that he would in any event have admitted the evidence in his discretion. It seems to me unnecessary to deal with this secondary consideration on appeal because, as it seems to me, the finding of his Honour that there was no impropriety and no contravention of the requirements of s 138 is a conclusion that was open to his Honour on the evidence and one which the appellant cannot assail in this appeal. 53 It seems to me, therefore, that this remaining ground of appeal should be dismissed. I would dismiss the appeal against conviction. 54 SPIGELMAN CJ: I agree. 55 BERGIN J: I agree. 56 SPIGELMAN CJ: The order of the Court is the appeal is dismissed. DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. 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