Citation: R v Ahola (No 7) [2013] NSWSC 704
Court: Supreme Court of New South Wales
Date: 27 May 2013
Judge(s): Button J
Background
The accused stood trial for murder. The central question before the jury was whether he had killed the deceased or had innocently discovered her body after she was killed by another person or persons.
During the trial, the Crown Prosecutor indicated he intended to address the jury in final address on an alleged lie told by the accused, treating it as evidence of consciousness of guilt. At the judge's invitation, the Crown identified the specific lie with precision before making submissions.
The alleged lie concerned when the accused had made a telephone call to a police officer in Queensland. At the scene on the night of the death, the accused told multiple officers he had rung the Queensland officer but could not get through, in circumstances consistent with him having already found the deceased. In his evidence at trial, however, the accused maintained the call had been made earlier in the afternoon while the deceased was still alive.
Legal Issues
- Whether the Crown Prosecutor should be permitted to rely on the accused's alleged lie as evidence of consciousness of guilt in his final address to the jury
- Whether the alleged lie satisfied the six-step test from Edwards v The Queen (1993) 178 CLR 193 as summarised in R v Lane [2011] NSWCCA 157
- Whether relying on the lie as consciousness of guilt would amount to impermissible "bootstrapping"
- Whether the court's discretion under s 136 of the Evidence Act 1995 should be exercised to limit use of the evidence
Decision
Button J identified the specific lie as the accused's assertion, made at the scene and in the ERISP, that the call to Queensland was made after he had found the deceased's body, which was directly contradicted by his trial evidence that the call occurred while she was alive. The judge carefully distinguished this from a separate but related question: whether the phone records accurately reflected a call at 9.13pm. That latter proposition formed part of the defence case and relying on it as a lie would have been impermissible bootstrapping of the kind discussed by Brennan CJ in Edwards.
Button J found the proposed lie had the potential to satisfy all six elements of the Edwards test. The statement was made by the accused; it was capable of being shown to be untrue (including by the accused's own trial evidence and an audio recording in evidence); it was capable of being found deliberately untrue; it related to a material issue; it potentially reflected an awareness that the truth would reveal guilt; and it was sufficiently established as a lie by the evidence itself. The judge rejected the submission that the two questions (the timing of the call versus whether the deceased was alive at the time) were so inextricably linked that the jury could not separate them.
Button J also declined to exercise the discretion under s 136 of the Evidence Act 1995 to limit the use of the evidence. The judge permitted the Crown to address the jury on the lie as consciousness of guilt in the manner foreshadowed, noting that careful jury directions, including possibly written directions, would be required at the appropriate time.
Orders Made
• The Crown Prosecutor is permitted to address the jury about the identified lie regarding whether the deceased was dead at the time of the call to Queensland
• Careful directions about this topic will be required, including possibly a written direction, to be discussed with counsel at the appropriate time
Key Takeaways
- The Supreme Court confirmed that before addressing a jury on an alleged lie as consciousness of guilt, the Crown must identify the specific lie with precision, consistent with the approach required by the authorities.
- Under the Edwards v The Queen framework as summarised in R v Lane, six elements must be capable of satisfaction before a lie can be relied upon as consciousness of guilt: that the statement was made by the accused; that it was untrue; that it was deliberately untrue; that it related to a material issue; that it was told due to an awareness that the truth would reveal guilt; and that it is clearly shown to be a lie by admission or evidence.
- The "bootstrapping" prohibition prevents the Crown from treating as a lie any assertion that merely contradicts a disputed factual proposition the defence is itself putting to the jury, even where that proposition is closely related to an admissible lie.
- Two related but distinct questions arising from the same facts can sometimes be separated: the court rejected the argument that an impermissible bootstrapping issue rendered the entire associated lie inadmissible.
- Section 136 of the Evidence Act 1995 provides a discretion to limit use of evidence, but no basis for exercising that discretion was established on the facts here.
Legislation and Cases Referenced
Legislation
- Evidence Act 1995 (NSW), s 136
Cases
- Edwards v The Queen [1993] HCA 63; (1993) 178 CLR 193
- R v Lane [2011] NSWCCA 157