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

1. 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.

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

1. 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.

1. 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".

1. 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.

1. 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 the sales assistant, foresaw a problem with the deceased in bringing home cheap wine instead of whisky, and perhaps wanted the sales assistant to accompany him in order to explain that there was merely a technical credit card problem, and not in truth a money problem.

1. There is other evidence already led in the trial, and also foreshadowed, that the deceased was happy in her relationship with the accused and that a planned marriage to him had brought great joy to her.

1. In order to understand the issue requiring determination by me, it needs to be understood that the Crown is not seeking to prove through the things said by the deceased to witnesses that the accused had said or done anything. The Crown is only seeking to prove the state of mind of the deceased at the time that she spoke or otherwise communicated with friends and family.

1. Accordingly, the learned Crown Prosecutor made clear that there would be no reliance by him on any part of s 65, including 65(2) and 65(9). Reliance was being placed only upon section 66A, which reads:

"The hearsay rule does not apply to evidence of a previous representation made by a person if the representation was a contemporaneous representation about the person's health, feelings, sensations, intention, knowledge or state of mind."

1. In accordance with that position, the Crown did not press portions of the statements of the proposed witnesses in which the witness had said that the deceased had said explicitly that the accused had said certain things to her.

1. In other words, the Crown is not seeking to prove acts, including verbal acts, of the accused via things said by the deceased to the various witnesses. To be clear, the Crown is only seeking to prove the state of mind of the deceased, in order to found the theory that perhaps the true state of affairs was revealed on the evening in question, and led to a fatal confrontation.

Submissions

1. The Crown Prosecutor submitted that the evidence passes the test of relevance. He submitted that the state of mind of the deceased is relevant to the fact in issue of whether the accused murdered the deceased, especially when it is analysed in the context of what the accused said to the shop assistant. He relied upon the breadth of the parameters of s 55 of the Act.

1. In discussion, I queried with the Crown Prosecutor whether the jury would inevitably and impermissibly use the evidence to infer that the accused had told the deceased various false things that led her to hold the belief under consideration. He submitted that that was not necessarily the case, and that the jury would not necessarily infer that. However, as against the possibility of such prejudice, he embraced a draft direction formulated by me during argument to the effect that the evidence went only to the state of mind of the deceased; that it was nothing to do with anything said or done by the accused; and that that state of mind could have come from other sources, including, for example, other persons or irrationality on the part of the deceased.

1. Defence counsel submitted that the evidence did not pass the test of relevance. He submitted that the Crown theory as to the events of the evening in question is really nothing more than a speculative and tenuous hypothesis. If I were against him on that, he submitted that s 137 has an important role to play. He submitted that it would be inevitable that the jury would use the evidence to find that the accused had told the deceased things that led her to those incorrect beliefs. Many of the matters were personal to the accused, such as his state of financial affairs. He submitted that it would be theoretical in the extreme to think that the material could have come from others, especially in the circumstances of this case, in which the deceased was not in contact over any extended period with other persons who were close to the accused.

1. He submitted that any direction or warning on my part would have little effect, in that the jury would inevitably reason that the false beliefs of the deceased were engendered by things said or done by the accused. He noted that there would be a sinister flavour in a murder trial of lies told by the accused to the deceased about himself. And he noted that, in this trial, there will be no evidence that the deceased suffered from a mental illness that could lead her to be frankly delusional.

Determination

1. The theory of the Crown with regard to the events of that evening is indeed, with respect, tenuous. It places emphasis on things said to the shop assistant that is perhaps unwarranted. It is also not easy to accept that, as at 18 October 2011, the deceased, in light of their living circumstances, truly believed that the accused was a very wealthy man.

1. Having said that, the test in s 55 of the Act is a very broad one. The section speaks of evidence that could (not would) rationally affect (not determine) directly or indirectly the assessment of the probability of the fact in issue of whether it was the accused who killed the deceased.

1. Although the criticisms of defence counsel of the Crown theory as to the events of that evening are well founded, I consider that the evidence passes the test of relevance.

1. I also consider that the evidence falls within s 66A and s 62 of the Act, in that the proposed evidence is first-hand hearsay from other witnesses of things the deceased said to them about her state of mind.

1. However, turning to s 137, on the evidence placed before me, I consider that it is inevitable that the jury would use the evidence to determine that the deceased had been told a number of falsehoods by the accused. It is noteworthy that at least one of the witnesses on the voir dire readily inferred in her statement that the source of the belief of the deceased was the accused. It is not the case, as I understand the foreshadowed evidence in this trial, that, realistically, the beliefs of the deceased could have come from any number of sources intimate with the accused. In truth, I consider that the jury would infer, impermissibly and contrary to the express position of the Crown, that the source of the beliefs of the deceased was things said to her by the accused.

1. A direction from me along the lines formulated in argument, and which I shall not quote precisely in this judgment because the transcript will adequately reflect it, could go some way to removing that prejudicial use of the evidence by the jury. However, whatever direction could be formulated, I consider that it is inevitable that the jury would infer that the accused told significant falsehoods to the deceased about his personal situation. And yet that is in a context in which the Crown in no way relies upon s 65 in order to demonstrate that very proposition.

1. That state of affairs will have a significant prejudicial effect in a murder case founded upon substantial violence, and in which graphic evidence of the effects of that violence has been foreshadowed. And I also consider that such an impermissible line of reasoning will have a markedly sinister flavour, in that it will be suggestive of a man who commenced a relationship founded on lies told for whatever reason. And yet, as I have said, it is no part of the Crown case that the accused had in fact done so. I consider that it would be unfair for the jury to inevitably use that evidence as part of a process of reasoning adverse to the accused. And that unfairness could well operate not only with regard to the fact in issue that I have identified, but also with regard, indirectly, to his credibility with regard to things said in the ERISPs, or if he were to give evidence.

1. As I indicated, the evidence is relevant really only to a Crown theory that suffers from certain defects and to my mind does pass the test of relevance, but only with difficulty. The relative weakness of the theory identified by the Crown is a matter that I have taken into account and weighed in the balance against the prejudice that will be occasioned to the accused.

1. In short, I regard the evidence as passing the tests in s 65, s 62 and s66A of the Act. The Crown has made it clear that no reliance is being placed on 65(2) or 65(9). The evidence to my mind would inevitably lead to the jury impermissibly reasoning that the accused lied to the deceased in sinister circumstances, even though that is not the Crown case. Although I drafted a possible direction for the purposes of discussion with both counsel, I consider that no direction, in light of the evidence foreshadowed in this trial, could cure the unfair prejudice that would accrue to the accused.

1. I am affirmatively satisfied that, as a matter of evaluative judgment, the probative value of the evidence is outweighed by the danger of unfair prejudice to the accused. Accordingly, I am required to exclude the evidence foreshadowed on the voir dire pursuant to s 137 of the Evidence Act, and I so rule.

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Decision last updated: 03 June 2013