R v Ahola (No 5) [2013] NSWSC 702

Supreme Court New South Wales

Medium Neutral Citation: R v Ahola (No 5) [2013] NSWSC 702 Hearing dates: 14 May 2013 Decision date: 14 May 2013 Jurisdiction: Common Law Before: Button J Decision: The evidence of the subsequent testing of exhibit K, the shirt, and exhibit L, the shorts, will be admitted in the trial. Catchwords: CRIMINAL LAW - procedure - whether evidence obtained through testing uplifted in course of trial admissible - no procedural unfairness arising - no prejudice to the accused - evidence to be admitted 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 1Yesterday I delivered a judgment permitting the Crown to uplift two exhibits in circumstances in which the Crown had made clear that what was proposed was that those exhibits would be tested by a police officer expert, in short, in matters to do with blood. 2That application was resisted on three bases by defence counsel. Today, the Crown Prosecutor has informed me from the Bar table that the result of that testing is that four places on the shirt taken from the accused on 19 October 2011, exhibit K, and four places on the shorts taken from the accused on the same date, exhibit L, returned a positive result for blood. One of the locations on the shirt was, it seems, somewhat delayed in that result. 3A separate question has been discussed today as to whether or not those results should be admitted in the trial. Reference should be made to my judgment of yesterday, 13 May 2013, in which I provided a detailed chronology not only of events in the trial but also procedural events pertaining to the trial, and I shall not repeat that conspectus in this judgment. 4Three grounds of resistance were identified by defence counsel with regard to the argument yesterday. The first was a procedural unfairness in the Crown being able to undertake those steps at this stage of the trial. The second was an interference with the integrity of the exhibits already in the custody of the Court and inspected by the jury. The third was a prejudice that could arise with regard to the jury perhaps approaching the fact of testing being done at this stage of the trial adversely to the accused. 5Mr Scragg has explained to me today that ground two, the integrity of the exhibits, is not relied upon at this secondary stage. With regard to ground three, prejudice to the accused, in light of a direction that I propose to give the jury with the concurrence that the Crown expressed yesterday, he does not identify any prejudice above and beyond the procedural unfairness that I have called ground one. 6In short defence counsel maintains the position that he made forensic decisions in the conduct of the trial, including but not limited to his cross-examination of the Crown witness, Mr Sergejeff, founded upon the Crown case as it then stood. It would be unfair for the Crown to be permitted, as it were at this stage, to rebut the propositions that unpinned the cross-examination of Mr Sergejeff, after that cross-examination had occurred and those forensic decisions had been made by defence counsel. 7For the reasons I identified in my judgment yesterday, I would have thought that that argument would have a deal of force if it had been directed towards subsequent testing of the thongs, exhibit M, and evidence of that subsequent testing. That is because, as I demonstrated in my judgment yesterday, it is the case that during the forensic procedure that took place on 19 October 2011 the accused did indeed inform the police that his position was that some of the red material on the thongs was paint. However, the whole of that question can be put to one side because, as things resolved yesterday, the Crown did not press the application to uplift exhibit M, the thongs, and those items have not been tested. 8As I demonstrated in my chronological review yesterday, it was never identified as an issue in the trial by the accused or his legal representatives whether or not it was blood or paint or a combination of both on the shirt, exhibit K, or the shorts, exhibit L, up until the date upon which Mr Sergejeff was cross-examined by defence counsel, namely 6 May 2013. 9Accordingly, for the reasons I gave yesterday I am not persuaded that there would be any procedural unfairness in those circumstances in the Crown tendering the evidence at this stage. It follows as well that I did not discern any prejudice to the accused arising from the adoption of that procedure. 10Finally, subject to anything that the parties wish to say to me at the end of this judgment, I propose to provide a brief comment to the jury along the lines foreshadowed by me yesterday with regard to the testing of the items at this stage. 11In short, I respectfully reject the submissions of defence counsel. My ruling is that the evidence of the subsequent testing of exhibit K, the shirt, and exhibit L, the shorts, will be admitted in the trial.