R .v. NICOLA [2002] NSWCCA 63

R .v. NICOLA [2002] NSWCCA 63

The convictions were not unsafe because the jury was entitled to accept the complainant's evidence, supported by contemporaneous complaint and matters undermining the defence evidence about the bedroom furniture. The proposed additional evidence was not fresh because the witnesses could have been called at trial. The trial judge's finding that retrieval and testing of the discarded styrofoam cup was not improper and did not contravene s 138 Evidence Act was open on the evidence, so the DNA evidence was admissible. The appeal against conviction was therefore dismissed.

Jurisdiction
Australia
Judgment Date
11 March 2002
Procedural Posture
Criminal Appeal Against Convictions / Court of Criminal Appeal
Outcome
Appeal against conviction dismissed
Legal Topics
['sexual Intercourse Without Consent' 'unreasonable Verdict' 'fresh Evidence' 'dna Evidence' 'improperly or Illegally Obtained Evidence' 'section 138 Evidence Act']
['criminal Law' 'evidence'] ['sexual Intercourse Without Consent' 'unreasonable Verdict' 'fresh Evidence' 'dna Evidence' 'improperly or Illegally Obtained Evidence' 'section 138 Evidence Act']

Case Brief

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Procedural Posture

Criminal Appeal Against Convictions / Court of Criminal Appeal

Legal Issues

  1. 1 ['Whether the guilty verdict on the first count was unreasonable, unsupported by the evidence, or involved a miscarriage of justice.' 'Whether proposed further evidence about the absence of bunk beds in 1993 was new or fresh evidence warranting appellate intervention.' 'Whether DNA evidence obtained from a discarded styrofoam cup should have been excluded under s 138 Evidence Act as improperly obtained.']

Ratio Decidendi

The convictions were not unsafe because the jury was entitled to accept the complainant's evidence, supported by contemporaneous complaint and matters undermining the defence evidence about the bedroom furniture. The proposed additional evidence was not fresh because the witnesses could have been called at trial. The trial judge's finding that retrieval and testing of the discarded styrofoam cup was not improper and did not contravene s 138 Evidence Act was open on the evidence, so the DNA evidence was admissible. The appeal against conviction was therefore dismissed.

Court Disposition

Appeal against conviction dismissed

Orders

  • ['The appeal is dismissed.']