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

The 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.

The resolution of those questions is a matter of some complexity.

The 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.

The 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".

The 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.

The 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…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading R v Ahola (No 2)

Details

AGLC: R v Ahola (No 2) [2013] NSWSC 699
Case: [2013] NSWSC 699
Decision Date: 30 April 2013

CaseChat Overview and Summary

The case of R v Ahola (No 2) was heard in the Supreme Court of Victoria. The respondent, Ahola, was charged with an offence under the Crimes Act 1958. The dispute centred around the admissibility of certain hearsay evidence tendered by the prosecution. The prosecution sought to adduce first-hand hearsay evidence in the form of a statement made by a witness who was unavailable to testify. The statement pertained to the state of mind of the maker at the time it was made.

The legal issue before the court was whether the hearsay evidence could be admitted under the exceptions to the hearsay rule. Specifically, the court had to determine if the evidence was admissible as it related to the state of mind of the maker at the time the statement was made, given that the maker was unavailable to testify. The court also needed to assess if the admission of this evidence would lead to an impermissible inference being drawn by the jury.

The court held that the evidence was inadmissible as it would inevitably lead to an impermissible inference. The court reasoned that the hearsay evidence in question was tendered to establish the state of mind of the maker at the time of the statement, but without the maker being available to testify, the jury would be unable to properly assess the credibility and reliability of the statement. The court found that such a situation would inevitably lead to an impermissible inference being drawn, which is against the principles of natural justice. Consequently, the court excluded the hearsay evidence. The court concluded that the admission of such evidence would undermine the fundamental principles of fairness in the trial process.

Orders