R v Ahola (No 4)

[2013] NSWSC 701

Supreme Court

New South Wales

Medium Neutral Citation:	R v Ahola (No 4) [2013] NSWSC 701
Hearing dates:	13 May 2013
Decision date:	13 May 2013
Jurisdiction:	Common Law
Before:	Button J
Decision:	The Crown may have leave to uplift exhibits K and L.
Catchwords:	CRIMINAL LAW - procedure - application to uplift exhibits for further testing during trial - whether testing would be procedurally unfair - whether integrity of exhibits would be disturbed - whether any prejudice arising from exhibits being disturbed - application granted
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

EX TEMPORE Judgment

1. An application was made some days ago by the Crown Prosecutor to uplift three exhibits in this murder trial. The first is exhibit K, namely the shirt taken from the accused on 19 October 2011; the second is exhibit L, the denim shorts taken from the accused on the same date; and the third is exhibit M, the thongs taken from the accused, again on the same date.

1. This morning the Crown Prosecutor has indicated that, on reflection, he does not seek to uplift exhibit M, the thongs.

1. The application is opposed by defence counsel on three bases. First, it is said that there is a procedural unfairness in the testing at this stage of the trial, because many months ago the accused had indicated to the police that his position was that there was paint, as opposed to blood, on at least one of the items he was wearing when they were taken from him on 19 October 2011.

1. The second basis is that the testing will inevitably interfere with two exhibits that are already before the jury, and that, in accordance with usual practice, have been into the jury room during the adjournments already.

1. In short, the foundation of this aspect of the resistance to the items being uplifted is that the integrity of the exhibits already in evidence and placed before the jury should not be interfered with.

1. The third basis of resistance is that, inevitably, if the exhibits are manifestly interfered with, something will have to be said to the jury about the fact that they have been tested. It is submitted that that occurring at this stage of the trial, especially in light of the cross-examination by defence counsel, would have an adverse and prejudicial impact upon the accused.

Chronology

1. In order to understand the issues, and in particular the procedural unfairness ground of resistance, it is necessary for me to recount a little of the chronology, not only of the evidence that has been tendered so far in the trial and on the voir dire, but also a chronology of some of the aspects of the proceedings themselves.

1. The offence is said to have occurred on 18 October 2011 in the township of Malua Bay. The Crown case is that the accused brutally assaulted the deceased and caused her death by way of a large number of blows to the head and neck.

1. An important part of the Crown case is analysis of the pattern of blood, not only found at the scene and on the body of the deceased, but also an analysis of the pattern of red material said to be blood observed upon the body of the accused and his clothing on 18 and 19 October.

1. At 10.34pm on 18 October 2011 a triple-0 call was received at Batemans Bay Police Station from the accused, informing them of the situation of the deceased being very badly injured and in the bathroom of her home.

1. Police attended, and at the scene the accused spoke to Senior Constables McLean, Schmidt and Quick. Some of the things said by the accused were rejected by me on the voir dire. The accused said some things about his appearance, including what appeared to be blood upon him.

1. In neither the material tendered in the voir dire nor the lesser material received in the trial did the accused say to any of those three police officers that any of the material observed upon him or upon his clothes was paint.

1. Early in the morning of 19 October 2011, the accused engaged in a forensic procedure with Detective Hollands. That took place between 3am and 3.26am, and the transcript of that procedure became exhibit 14 on the voir dire as part of the Crown case.

1. Some aspects of what the accused said to Detective Hollands during that process were also cross-examined into evidence in the trial by defence counsel.

1. During the forensic procedure, the accused said a number of things as to his appearance. In particular, at the bottom of page 5, he said, "By the way half that red stuff on the thongs is actually red oxide". A little later he said, "I was painting my bloody verandah." And a little later he said, "Just that it doesn't look as bad as it are."

1. At the bottom of page 6 of the transcript the accused is recorded as having said, "There's blood splatters on my feet", and a little later, "Most of the red marks on the bottoms are red oxide."

1. It is noteworthy that, although it is certainly clear that, in the early hours of 19 October 2011, the accused was asserting to the police that some at least of the red marks on his thongs, and perhaps his feet, were in truth paint, he did not make any such assertion with regard to his shirt or his shorts.

1. Between 5.26am and 7.05am on 19 October 2011, the accused engaged in an ERISP with police. He was asked 563 questions and chose to answer all of them. Throughout that ERISP he said nothing about the presence of paint on his clothes or on his person.

1. At questions and answers 464 to 467, the following exchange occurred:

"Q464 O.K. I noted when we conducted a forensic, the forensic procedure on you earlier tonight - - -

A Yes.

Q465 - - - and the other crime scene officer took the photographs - - -

A Yes.

Q466 - - - there appeared to be some blood or some blood spatter on the top of your feet?

A Yes, yes.

Q467 Can you explain to me how that would have come to be there?

A Well, I've got no idea."

1. The accused was subsequently released and re-arrested on 20 October 2011, and charged with murder. On arrest, on legal advice, he exercised his right to silence.

1. I am informed that a paper committal was conducted in the Local Court before the matter was committed to this court for trial. In other words, there was no cross-examination or submissions as to whether or not anything could be paint, as opposed to blood, at that stage.

1. It seems that when initially arraigned in this court, in the arraignments list, there was no reference made to any question as to whether what may have been assumed to be blood was in fact paint.

1. Similarly, when the matter was mentioned before me, defence counsel did not point to the possibility of that question being an issue in the trial, though I hasten to add that I made it perfectly clear to both parties at that stage that there was no responsibility on defence counsel to indicate any issue in the trial if he did not wish to do so.

1. On 29 April 2013, the accused was arraigned before a jury panel and me on a single count of murder.

1. Defence counsel exercised his right to open to the jury and at T26.6 of the trial transcript, the following is recorded. Defence counsel said "But the principal issues in this trial are firstly, who was it who killed the deceased, secondly, the interpretation of the blood spatter," and then defence counsel went on to mention two other issues that are not presently relevant.

1. At T31.16, in the same opening, defence counsel said "The interpretation of the blood spatter that will be an issue in the trial I anticipate", and then again he went on to discuss other issues not presently relevant.

1. It can be seen that, although "the blood spatter" was identified as an issue, as was its interpretation, it was not at that stage revealed that it would be an issue for the jury as to whether or not the underlying material was either blood or paint.

1. The trial proceeded with the calling of various civilian and police witnesses.

1. On 6 May 2013, Mr Sergejeff, a longstanding friend of the accused, was called by the Crown. In cross-examination by defence counsel, he agreed that some days before the accused travelled from Tarcutta to Malua Bay (that is, some days before 18 October 2011) the accused had been engaged in painting some items with red oxide paint. Four photos were tendered in support of that proposition and became defence exhibit 2 in the trial.

1. It was quite open to infer from the evidence of Mr Sergejeff in crossexamination that the proposition was being placed before the jury that it was not just the thongs of the accused that could have had red paint on them, but also his shirt and shorts. And I am prepared to infer that it became clear from that moment on to everyone in court who was following the evidence that the issue of whether or not the red material found on the body of the accused and his items of clothing was in fact all blood, but in truth could possibly be paint, had been clearly raised.

1. Prior to that cross-examination, defence counsel had not sought from me an advance ruling pursuant to s 192A of the Evidence Act 1995 as to what, if any, consequences could flow from that course of cross-examination.

1. In particular, there was no advance ruling sought as to whether or not that cross-examination could lead to the Crown leading evidence that had not previously been notified as to the true nature of the red material.

1. The Crown re-examined Mr Sergejeff adversely, if I may call it that, but there was no application to cross-examine him by the Crown Prosecutor pursuant to s 38 of the Evidence Act on the basis that he had given unfavourable evidence.

1. On 7 May 2013 the shirt and the shorts were tendered through Detective Hollands, the Crime Scene Officer and, as I have said, became exhibits K and L.

1. On 8 May 2013, the Crown applied to uplift the exhibits and made it clear that what was proposed was that there would be a further testing of them to determine the true nature of the red material. That was opposed by defence counsel.

1. The resolution of the question was stood over until today to permit the smooth running of the trial, and also to permit the thinking of both parties and me to evolve.

1. On the same day, defence counsel cross-examined into the trial from Detective Hollands some, but not all, of the things said by the accused during the forensic procedure in the early hours of 19 October 2011.

1. Defence counsel also obtained in cross-examination from Detective Hollands, in effect, an agreement that the stains or spots on the thongs were "potentially of a similar colour" to what was depicted in the four photographs in exhibit 2.

1. Finally with regard to my chronological review of the evidence in the trial and voir dire with regard to procedural aspects, I was informed by the Crown Prosecutor that the transcript of the forensic procedure was not in his brief. However, it was in the brief of defence counsel when he received it from another barrister.

1. Finally, defence counsel has informed me that for his part the items in question have never been sought for expert testing.

Submissions

1. Turning to the submissions of defence counsel, it is accepted that, with regard to procedural unfairness, the accused referred explicitly in the forensic procedure only to the possible presence of paint on the thongs, and that he said nothing about the presence of paint on the shirt or the shorts.

1. However, what was submitted was that the police should have inferred that that was a possibility, and had the items tested months ago.

1. It was submitted that, in short, forensic decisions were made by defence counsel based upon the material that he had been led to understand was in the prosecution brief. And the police, in that indirect way at least, were indeed on notice that the true nature of the red material could very much be an issue in the trial.

1. In all of the circumstances, he submitted, it would be quite unfair now for the Crown to seek, after Mr Sergejeff had been cross-examined, to "fix up" the potential problem that has arisen in the Crown case.

1. The second ground of resistance was that inevitably the testing will involve an interference with the integrity of the exhibits that have already been tendered, received into evidence, and inspected by the jury.

1. It is clear from the evidence on the voir dire of Detective Moon, the blood spatter expert who is proposed to undertake any examination, that there would indeed be an interference with the appearance of the exhibits, in particular by way of the cutting out of small portions of the shirt and the shorts so that they can be tested.

1. It was submitted that I should not permit such an interference, which is significant and permanent, with exhibits that have already been tendered.

1. Thirdly, it was submitted that to permit the tests to be undertaken now would have an adverse impact on the jury's assessment of the accused and the defence case. In particular it was submitted that the jury might prejudicially use the chronology of events against the accused.

Determination

1. Turning to each of the grounds of resistance and focusing first upon procedural unfairness, the position of defence counsel may well have some force if it were directed towards the thongs. After all, as I have demonstrated by my chronological review, the accused did indeed, many months ago, indicate to the police that his position was that some at least of the red marks on the thongs were paint, not blood.

1. However, as I have said, the Crown Prosecutor made it clear this morning that he is not pressing the application to uplift with regard to the thongs.

1. As my review of the evidence and the procedural history of the trial demonstrates, at least on the material so far before me, it has never been suggested by the accused, or anyone else, that there could be paint on the shirt or shorts. The first time that that suggestion was made was during the cross-examination of Mr Sergejeff on 6 May 2013.

1. I do not consider that the police should have inferred from the assertion during the forensic procedure that there could be red oxide paint on the thongs that the accused may or would also assert at the trial that there could well be red oxide paint on the shirt or the shorts.

1. It follows that I respectfully reject the argument founded on procedural unfairness.

1. As for the second argument, it is true that it is regrettable that there will be interference with the integrity of exhibits if the application is granted.

1. However, as I suggested in argument, I would have thought that a number of steps could be taken with the co-operation of the parties, and if necessary by order from me, to ensure that as accurate a record as possible is retained of the appearance of the exhibits as they are before they are tested.

1. Such steps could include: a detailed inspection by the jury for a second time in the courtroom of the exhibits once they are taken out of their sealed bags; the taking of photographs of the exhibits before they are tested; the creation of sketches or diagrams of the marks on them; the making of notes as to their appearance; and perhaps the creation of a video record of precisely what is done to them for the purposes of testing. And I would have thought that any expert retained by the defence team, or any member of the defence team, should, with the cooperation of the parties and subject to it having any adverse affect on the integrity of the testing, be permitted to be present in order to observe it.

1. In short, in light of the steps that I consider can be taken in order to ensure that an accurate record is made of the appearance of the two items before they are tested, I respectfully reject ground 2.

1. With regard to ground 3, it is conceivable that the interference with the exhibits could lead to some adverse view of the accused or the defence team on the part of the jury. It goes without saying that if and when the exhibits are tested, something would have to be said to the jury by me about the fact that the appearance of the exhibits has changed or is to change.

1. During discussion with counsel I formulated a possible direction designed to remove any such prejudice. It would be along the lines of:

"Members of the jury, you have seen that the exhibits have changed. That is because they have been tested. You may well think that the police should have undertaken that testing many months ago, but be that as it may it goes without saying that you would not hold the fact that the testing is being undertaken now against the accused to the slightest degree".

1. The Crown Prosecutor indicated that he would have no opposition to such a direction by me to the jury.

1. Although there is a small possibility of the jury being perplexed or concerned by the testing being undertaken at this stage, I consider that a warning along the lines of that proposed by me would adequately deal with any such faint possibility. It follows that ground 3 of resistance to the uplifting of the exhibits is respectfully rejected.

1. As I have indicated, my expectation is that the precise logistics of any testing that is to be undertaken would be with the concordance of defence counsel, in order to ensure that there can be no adverse consequence to the presentation of his case. And if agreement is unable to be reached between counsel as to precisely how any testing is to be undertaken, there would be no difficulty in any such controversy being placed before me again for my resolution.

1. Finally, although I propose to allow the application of the Crown to uplift the exhibits in question, that says nothing as to the admissibility of any evidence arising from any testing undertaken by the police expert. It is clear that, at this stage, bearing in mind that one knows nothing of what the results of any such testing might be, I am incapable of making any assessment as to whether or not the test in s 55 of the Evidence Act is made out, or whether my discretion should be exercised pursuant to s 137 of the same Act, to give but two examples. I regard the question of the admissibility of any evidence obtained as a completely separate one.

Order

1. In short, I make the following order: the Crown may have leave to uplift exhibits K and L.

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Decision last updated: 03 June 2013