R v Ahola (No 6) [2013] NSWSC 703

Supreme Court New South Wales

Medium Neutral Citation: R v Ahola (No 6) [2013] NSWSC 703 Hearing dates: 14 May 2013 Decision date: 14 May 2013 Jurisdiction: Common Law Before: Button J Decision: The application to discharge the jury is rejected. Catchwords: CRIMINAL LAW - application for discharge of jury - fingerprint expert witness gave potentially prejudicial evidence - whether high degree of necessity reached - application rejected Cases Cited: Crofts v The Queen [1996] HCA 22; (1996) 186 CLR 427 Qing An v Regina [2007] NSWCCA 53 R v Bartle [2003] NSWCCA 329; (2003) 181 FLR 1 Santo v R [2009] NSWCCA 269 Williams v The Queen [2000] FCA 1868; 119 A Crim R 490 Category: Interlocutory applications 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 1Application has been made by defence counsel for the discharge of the jury. It is founded on the fact that the fingerprint expert, Detective Leading Senior Constable Buffett, said something inappropriate in his evidence-in-chief. The transcript of an extract of his evidence was tendered by defence counsel in support of the application, and became defence exhibit D on the voir dire. The salient portions of that transcript are as follows. At page 7 line 4 the following appears: "Q. All right now, what did you have to compare those fingerprints that were developed with? [I interpolate to say that the learned Crown Prosecutor at that stage was referring to the crime scene fingerprints.] "A. At which particular time? Q. From whom they were placed on those items? A. The comparison that I made for the purposes of, according to this certificate, I've always done where possible off ones taken at the time of arrest. Q. Right? A. But other comparisons are performed but it might be prejudicial if I go into that. Q. No, no, no, just ones that were taken from the time of arrest of Mr Ahola we're talking about? A. Yes." 2A little later in evidence-in-chief the following exchange occurred commencing at page 8, line 27 of the transcript: "Q. Okay, continue on? A. 'On Monday 5 December 2011 I retrieved from the digital image management system images bearing forensic case numbers 1534791, 154392 and 1515308. I also retrieved from the National Automated Fingerprint Identifications System a set of fingerprint impressions in the name of Jouni Risto Ahola which are shown to have been taken on Wednesday 19 October 2011 under charge number H46052312'. Q. And that's the date of Mr Ahola's arrest in relation to this particular matter? A. I believe so, yes." 3The submission is that the jury would inevitably infer from the first extract that the accused is a person with a criminal record whose fingerprints were held by the New South Wales Police, prior to them being taken from him with regard to this matter. It is that inference that forms the foundation for the application of the discharge of the whole jury. 4A number of aspects of the giving of the evidence by the witness are noteworthy. 5The first is that the evidence was not heard by defence counsel, and it was only when I invited to his attention it having been given that it became a cause of concern. 6The second thing is that the witness, at least to my hearing, was not speaking particularly loudly or forcefully. If anything, his mode of giving evidence was somewhat to the contrary. 7The third thing is that the Crown Prosecutor intervened to a degree to deflect the witness from saying what he was saying, and I refer in particular to the extract that commences at page 7 line 16 of the exhibit, though it is true that defence counsel submits respectfully that in fact that intervention made matters worse. 8The fourth thing is that it seems to me from the words used that they could be interpreted as speaking, at least in part, in generalities rather than with regard to this particular matter. I refer in particular to the reference at page 7 line 13 as follows, "But other comparisons are performed", and the flavour of the extract as a whole. But, again, Mr Scragg has submitted that reference to "it might be prejudicial" must surely be a reference to this particular matter.