R .v. Nicola - [2002] NSWCCA 63

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
OFFICER : Solomon DCJ

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

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…

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 R .v. Nicola

Details

AGLC: R .v. Nicola [2002] NSWCCA 63
Case: [2002] NSWCCA 63
Decision Date: 11 March 2002

CaseChat Overview and Summary

In the case of Regina v. Nicola, the appellant, Steven Nicola, appealed against convictions entered in the District Court for sexual assault and rape charges. Nicola was found guilty by a jury of having sexual intercourse with the complainant without her consent on two separate occasions. The court sentenced him to a total of seven years in prison with a non-parole period of five years. The primary legal issues in the appeal were whether the verdicts were unreasonable or unsupported by the evidence and whether certain evidence, including DNA evidence obtained from a styrofoam cup, should have been excluded under the Evidence Act 1995.

The Court of Criminal Appeal considered the first and third grounds of appeal, which questioned the reliability of the jury's verdict based on discrepancies in the evidence and the alleged absence of bunk beds in the room where the assault was said to have occurred. The court found that the jury was entitled to rely on the complainant's contemporaneous complaint and the lack of a clear motive for fabrication. The court also concluded that the jury could have reasonably doubted the evidence of family members who claimed there were no bunk beds, considering the potential for collusion.

Regarding the third ground of appeal, the court found that the proposed evidence from additional family members was not fresh evidence and could have been presented at the original trial. The court dismissed this ground, finding that the defense likely chose not to call these witnesses.

Lastly, the court examined the admissibility of the DNA evidence obtained from the styrofoam cup. The appellant argued that the evidence was obtained improperly as he had refused to provide a blood sample. The court, however, found that the police acted appropriately in retrieving and testing the cup, and that any impropriety did not render the evidence inadmissible under the Evidence Act. The court concluded that the evidence was critical and its exclusion would have been unjust.

The appeal was ultimately dismissed by the Court of Criminal Appeal, upholding the original convictions and sentences.

Orders