Citation: R v Ahola (No 4) [2013] NSWSC 701
Court: Supreme Court of New South Wales
Date: 13 May 2013
Judge(s): Button J
Background
The accused stood trial for murder alleged to have occurred on 18 October 2011. A central element of the Crown case involved forensic analysis of red material found on the accused's body and clothing at the time of his arrest, which the Crown contended was blood consistent with a violent assault.
During cross-examination of a Crown witness, defence counsel raised the possibility that some of the red material on the accused's clothing was red oxide paint rather than blood, relying in part on evidence that the accused had been painting with red oxide paint in the days before the offence. The accused had made limited references to paint during early police interviews, but had not suggested his shirt or shorts bore paint rather than blood.
Following this development mid-trial, the Crown applied to uplift two clothing exhibits, a shirt (exhibit K) and denim shorts (exhibit L), for forensic testing to determine the composition of the red material. The defence opposed the application on three grounds.
Legal Issues
- Whether uplifting the exhibits for testing at this stage of the trial was procedurally unfair to the accused, given the defence had long indicated paint could be an explanation for the marks on his clothing
- Whether removing the exhibits from evidence for testing would improperly disturb their integrity, given they had already been before the jury
- Whether any visible change to the exhibits resulting from testing would cause prejudice to the accused that could not be adequately remedied by a jury direction
Decision
Button J rejected all three grounds of resistance and granted the Crown leave to uplift exhibits K and L.
On procedural unfairness, his Honour found that the accused's own statements to police made no mention of paint being on his shirt or shorts; only the thongs were identified as possibly bearing paint. The Crown could not reasonably have been expected to conduct this testing earlier, because the proposition that the shirt and shorts bore paint had not been clearly raised until defence counsel's cross-examination of the Crown witness on 6 May 2013. His Honour noted that no advance ruling under s 192A of the Evidence Act 1995 had been sought before that course of cross-examination was taken, and concluded there was no procedural unfairness in allowing the testing to proceed.
On exhibit integrity, Button J acknowledged the general practice of not disturbing exhibits once they have been placed before a jury, but held that the interests of justice in this case outweighed that concern. The issue of whether the red material was blood or paint had become a central factual question, and the testing was necessary for the Crown to respond to a proposition it had not anticipated until mid-trial.
On the question of prejudice arising from visible changes to the exhibits, his Honour proposed a jury direction to the effect that the exhibits had been tested and that the jury should not hold the late timing of the testing against the accused in any way. The Crown did not oppose such a direction. Button J considered this would adequately address any risk of prejudice, describing that risk as a "faint possibility." His Honour also made clear that granting leave to uplift the exhibits said nothing about the admissibility of any evidence arising from the testing, which remained a separate question to be determined if and when results were obtained.
Orders Made
- The Crown was granted leave to uplift exhibit K (the accused's shirt) and exhibit L (the accused's denim shorts) for further forensic testing.
Key Takeaways
- The Supreme Court held that procedural unfairness in uplifting exhibits mid-trial must be assessed against the actual chronology of how the relevant issue emerged during proceedings; where a defence proposition was not clearly raised until cross-examination, the Crown's inability to have tested exhibits earlier does not found a procedural unfairness argument.
- A general practice of not disturbing exhibits already before a jury does not create an absolute bar to mid-trial testing; the court balanced that practice against the interests of justice, particularly where a new factual issue had emerged.
- Prejudice arising from visible changes to exhibits can, in appropriate circumstances, be addressed by a carefully worded jury direction rather than by refusing the application altogether.
- Granting leave to uplift exhibits for testing is a separate and distinct question from the admissibility of any evidence obtained through that testing; admissibility remains to be determined at a later stage by reference to the relevant provisions of the Evidence Act 1995, including ss 55 and 137.
- Where defence counsel intends to pursue a line of cross-examination that may open up new areas of Crown evidence, the availability of an advance ruling under s 192A of the Evidence Act 1995 is a mechanism that can be used to obtain clarity on the potential consequences of that course before it is taken.
Legislation and Cases Referenced
Legislation:
- Evidence Act 1995 (NSW), s 38 (leave to cross-examine unfavourable witnesses), s 55 (relevance), s 137 (exclusion of prejudicial evidence in criminal proceedings), s 192A (advance rulings on admissibility)
Cases cited: No cases were cited in this decision.