R v Ahola (No 4) [2013] NSWSC 701

Supreme Court New South Wales

Medium Neutral Citation: R v Ahola (No 4) [2013] NSWSC 701 Hearing dates: 13 May 2013 Decision date: 13 May 2013 Jurisdiction: Common Law Before: Button J Decision: The Crown may have leave to uplift exhibits K and L. Catchwords: CRIMINAL LAW - procedure - application to uplift exhibits for further testing during trial - whether testing would be procedurally unfair - whether integrity of exhibits would be disturbed - whether any prejudice arising from exhibits being disturbed - application granted 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

EX TEMPORE Judgment 1An application was made some days ago by the Crown Prosecutor to uplift three exhibits in this murder trial. The first is exhibit K, namely the shirt taken from the accused on 19 October 2011; the second is exhibit L, the denim shorts taken from the accused on the same date; and the third is exhibit M, the thongs taken from the accused, again on the same date. 2This morning the Crown Prosecutor has indicated that, on reflection, he does not seek to uplift exhibit M, the thongs. 3The application is opposed by defence counsel on three bases. First, it is said that there is a procedural unfairness in the testing at this stage of the trial, because many months ago the accused had indicated to the police that his position was that there was paint, as opposed to blood, on at least one of the items he was wearing when they were taken from him on 19 October 2011. 4The second basis is that the testing will inevitably interfere with two exhibits that are already before the jury, and that, in accordance with usual practice, have been into the jury room during the adjournments already. 5In short, the foundation of this aspect of the resistance to the items being uplifted is that the integrity of the exhibits already in evidence and placed before the jury should not be interfered with. 6The third basis of resistance is that, inevitably, if the exhibits are manifestly interfered with, something will have to be said to the jury about the fact that they have been tested. It is submitted that that occurring at this stage of the trial, especially in light of the cross-examination by defence counsel, would have an adverse and prejudicial impact upon the accused.