R v Ahola

[2013] NSWSC 698

Supreme Court

New South Wales

Medium Neutral Citation:	R v Ahola [2013] NSWSC 698
Hearing dates:	29 - 30 April 2013
Decision date:	30 April 2013
Jurisdiction:	Common Law
Before:	Button J
Decision:	Application by Crown for a view is granted.
Catchwords:	CRIMINAL LAW - application for a view pursuant to s 53 of Evidence Act 1995 - accused can only attend in prejudicial circumstances - accused waives right to attend - view would assist jury - application granted
Legislation Cited:	Evidence Act 1995
Cases Cited:	Jamal v R [2012] NSWCCA 198
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

Judgment

1. Application has been made by the Crown for a view to be conducted as part of the prosecution case. Defence counsel has indicated that, on reflection, that application is not opposed. He has also informed me this morning that he has been instructed by the accused that he waives his right to be present. That is in the context of the accused being bail refused throughout the whole of the trial, and it having been indicated that, if he were to attend the view, the Department of Corrective Services would require the accused to be handcuffed and also perhaps to have his legs fettered. I also infer that, were the accused to be present, he would have to have prison officers in close proximity to him.

1. Although the application is not opposed, it remains for me to be satisfied, pursuant to s 53 of the Evidence Act 1995, that "an inspection be held". I am so satisfied, and propose to deliver this short judgment to that effect. Because of the concurrence of the parties with regard to the issue, my judgment will be shorter than if there had been a full-blown controversy.

1. I am satisfied that both the trial judge and the jury will be present at the view.

1. I am also satisfied that both parties have been given a reasonable opportunity to be present at the view. No doubt the Crown Prosecutor and his instructing solicitor will be there. So will defence counsel and his instructing solicitor. As for the accused, I have borne in mind the decision of the Court of Criminal Appeal in Jamal v R [2012] NSWCCA 198, and I indicate that, if the accused wishes to be present, of course he may be. Having said that, as I indicated to the parties during discussion, I do not consider it my role to interfere with the security arrangements that the Department of Corrective Services may see fit to make with regard to any such view. And it is quite understandable for the accused not to exercise his right to be present at the view, in light of the prejudice that would almost certainly accrue as a result of those arrangements.

1. In short, I am satisfied of the two factors contained in s 53(2).

1. I have also taken into account the five factors contained in s 53(3).

1. Although the accused will not be present, as I have said, his barrister and solicitor will be there. It is not uncommon for views in criminal trials to be conducted in the absence of the accused, if he or she is in custody.

1. I consider that the view will assist the jury in resolving issues of fact and understanding the evidence. My understanding of the Crown case from the opening of the Crown Prosecutor and the Crown Case Statement, which became voir dire exhibit 3, is that it is alleged that the accused bashed the deceased to death at a private home that they were sharing in Malua Bay, south of Batemans Bay. The Crown case is that the accused has said a number of inconsistent things about his movements at the home on the evening, and also perhaps that his version does not fit with the layout of the home. It is also said that the times he has given do not fit with the time it would take to walk from a shop, which he is said to have visited that evening, to the home. I have been informed from the Bar table that, although there is a plethora of photos and also an ISRAP product, there is no crime scene video. My own understanding of the layout of the home and how it fits with the Crown case generally is, at this early stage, not entirely clear.

1. I consider that inspecting the home itself, along with the distance from the store to the home, will assist in resolving facts and understanding the evidence.

1. I do not consider that there is a danger that the view would be unfairly prejudicial. It has not been suggested that, for example, the jury would see something adverse to the character of the accused at the home. Nor do I consider that a view, properly conducted, would be misleading or confusing. As for the question of any waste of time, it is true that, in order to travel from the courthouse in Wollongong to Malua Bay, it will take at least 2.5 hours each way. However, the trial is listed for four weeks, and I consider that, in context, the loss of five hours travelling time is reasonable.

1. I have been informed by the Crown Prosecutor that, to his knowledge, the layout of the home generally has not been materially altered since the date of the alleged offence, namely 18 October 2011. Of course, the distance from the site of the shop to the home cannot have changed.

1. Finally, and speaking more generally, it is my own experience that a view of the scene of an alleged crime very much aids one's understanding of that scene in a way that goes beyond what can be achieved through photographs, maps, and the like.

1. In all of the circumstances, I consider that the application of the Crown, unopposed by defence counsel, should be granted. It is proposed that the view will take place on Thursday 2 May 2013.

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Decision last updated: 03 June 2013