R v Ahola (No 2) [2013] NSWSC 699

Supreme Court New South Wales

Medium Neutral Citation: R v Ahola (No 2) [2013] NSWSC 699 Hearing dates: 29 - 30 April 2013 Decision date: 30 April 2013 Jurisdiction: Common Law Before: Button J Decision: The evidence foreshadowed on the voir dire is excluded pursuant to s 137 of the Evidence Act Catchwords: EVIDENCE LAW - first hand hearsay evidence - maker of statement not available - statement tendered as to state of mind of maker - impermissible inference inevitable - evidence excluded Legislation Cited: Evidence Act 1995 Category: Procedural and other rulings Parties: Regina Jouni Risto Ahola Representation: Counsel: P Cattini (Regina) G Scragg (defendant) Solicitors: Solicitor for Public Prosecutions (Regina) Legal Aid NSW (defendant) File Number(s): 2011/333607

Judgment 1The Crown proposes to lead evidence of certain things said by the deceased to friends and family about the accused and her relationship with him. I include in that characterisation telephone conversations and also one SMS. All of the evidence sought to be relied upon has been placed before me in documentary form on the voir dire. Defence counsel has objected to the admission of that evidence, relying upon s 55 of the Evidence Act 1995 ("the Act") and s 137 of the same Act. 2The resolution of those questions is a matter of some complexity. 3The background of the matter is that the Crown alleges that the accused murdered the deceased by bashing her to death at a home that they shared in Malua Bay on the evening of 18 October 2011. They had met some little time before, and had formed a romantic relationship. 4The evidence on the voir dire shows that that evening the accused had tried to buy a bottle of whisky worth about $30. However, due perhaps to a lack of credit, he ended up buying a cask of wine that was substantially cheaper. It is said that the accused said to the sales assistant words to the effect that "he would have to explain why he was going home with wine instead of whiskey and did I [the sales assistant] want to drive up there". 5The evidence the subject of objection is to the effect that the deceased told other persons that the accused was a millionaire, owned a number of properties in the Snowy Mountains, that perhaps they would live in Finland, and so forth. In fact, as I understand it, it seems there is no dispute in the trial that both the deceased and the accused were impecunious and heavy drinkers. 6The Crown theory is that, perhaps, on the evening in question the deceased, upon the return home of the accused, queried the provision of cheap wine as opposed to alcohol of better quality; that there was a revelation by the accused that in fact he was not a millionaire at all; and that that led to a drunken argument that, in turn, led to fatal violence. The Crown case is that one should infer that the accused, in the statement to the sales assistant, foresaw a problem with the deceased in bringing home cheap wine instead of whisky, and perhaps wanted the sales assistant to accompany him in order to explain that there was merely a technical credit card problem, and not in truth a money problem. 7There is other evidence already led in the trial, and also foreshadowed, that the deceased was happy in her relationship with the accused and that a planned marriage to him had brought great joy to her. 8In order to understand the issue requiring determination by me, it needs to be understood that the Crown is not seeking to prove through the things said by the deceased to witnesses that the accused had said or done anything. The Crown is only seeking to prove the state of mind of the deceased at the time that she spoke or otherwise communicated with friends and family. 9Accordingly, the learned Crown Prosecutor made clear that there would be no reliance by him on any part of s 65, including 65(2) and 65(9). Reliance was being placed only upon section 66A, which reads: "The hearsay rule does not apply to evidence of a previous representation made by a person if the representation was a contemporaneous representation about the person's health, feelings, sensations, intention, knowledge or state of mind." 10In accordance with that position, the Crown did not press portions of the statements of the proposed witnesses in which the witness had said that the deceased had said explicitly that the accused had said certain things to her. 11In other words, the Crown is not seeking to prove acts, including verbal acts, of the accused via things said by the deceased to the various witnesses. To be clear, the Crown is only seeking to prove the state of mind of the deceased, in order to found the theory that perhaps the true state of affairs was revealed on the evening in question, and led to a fatal confrontation.