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Supreme Court 14 May 2013

R v Ahola (No 5)

[2013] NSWSC 702

Assault & violenceDomestic & family violence
CRIMINAL LAW PROCEDURE NO PROCEDURAL UNFAIRNESS ARISING NO PREJUDICE TO THE ACCUSED EVIDENCE TO BE ADMITTED

Citation: R v Ahola (No 5) [2013] NSWSC 702
Court: Supreme Court of New South Wales
Date: 14 May 2013
Judge: Button J

Background

This decision is the fifth in a series of rulings arising from a criminal trial before Button J. The accused was on trial in relation to events connected to 19 October 2011. During the trial, two items of clothing taken from the accused on that date were in evidence: a shirt (exhibit K) and a pair of shorts (exhibit L), both of which appeared to contain red material.

In a judgment delivered the day before (13 May 2013), Button J permitted the Crown to uplift these two exhibits during the course of the trial for forensic testing by a police expert in matters relating to blood. Defence counsel had resisted that application on three grounds. The testing proceeded, and the results showed four locations on both the shirt and the shorts returned positive results for blood.

The question before the court on 14 May 2013 was whether the results of that mid-trial testing should be admitted into evidence.

  • Whether admitting the results of forensic testing conducted mid-trial would cause procedural unfairness to the accused
  • Whether any prejudice to the accused arose from the timing of the testing and the proposed admission of its results
  • Whether the integrity of the exhibits had been compromised (this ground was ultimately abandoned by the defence at this stage)

Decision

Button J rejected each remaining ground of resistance. On the question of procedural unfairness, the defence argued that counsel had made forensic decisions, including the cross-examination of Crown witness Mr Sergejeff, based on the Crown case as it stood at that time. Admitting new test results after that cross-examination, the argument ran, would unfairly rebut the premises on which those forensic decisions rested.

Button J acknowledged that this argument would have carried significant force had it concerned testing of a third exhibit, the thongs (exhibit M). The accused had told police during the forensic procedure on 19 October 2011 that red material on the thongs was paint, making the question of blood versus paint a live issue on those items from an early stage. However, the Crown did not press its application to uplift the thongs, and they were not tested.

By contrast, the court found that neither the accused nor his legal representatives had identified whether the red material on the shirt and shorts was blood or paint as an issue in the trial, until defence counsel cross-examined Mr Sergejeff on 6 May 2013. Because that issue had not been raised as a contested matter prior to that cross-examination, no procedural unfairness arose from the Crown tendering the test results at this point in the proceedings.

On the question of prejudice, defence counsel confirmed he did not identify any prejudice beyond the procedural unfairness argument, particularly in light of a direction Button J proposed to give the jury (with the Crown's concurrence) regarding the timing of the testing. The court found no prejudice to the accused arising from the procedure.

Orders Made

• Evidence of the subsequent testing of exhibit K (the shirt) and exhibit L (the shorts) will be admitted in the trial

Key Takeaways

  • Button J held that mid-trial forensic testing of exhibits does not necessarily give rise to procedural unfairness, particularly where the issue the testing addresses was not identified as a live dispute by the defence until after the Crown had made its application.
  • The distinction between the tested items was significant: the court drew a clear line between the shirt and shorts (where blood versus paint had not been raised as a contested issue before cross-examination) and the thongs (where the accused had raised paint as an explanation at the time of the original forensic procedure, making that issue live from an early stage).
  • Procedural unfairness in this context turns on whether the defence made forensic decisions founded on the Crown case as it then stood, and whether admitting the new evidence would unfairly undermine those decisions after the fact.
  • No prejudice above and beyond the procedural unfairness ground was established once the court proposed to give a direction to the jury about the timing of the testing.
  • The evidence of subsequent testing of both the shirt (exhibit K) and the shorts (exhibit L) was admitted into the trial.

Legislation and Cases Referenced

No legislation or cases were cited in the judgment.