R v Christos Podaras

[2009] NSWDC 421

CITATION:	R v Christos PODARAS [2009] NSWDC 421
JUDGMENT DATE:	5 November 2009
JURISDICTION:	District Court of New South Wales
JUDGMENT OF:	Cogswell SC DCJ
DECISION:	The application is dismissed.
CATCHWORDS:	CRIMINAL LAW - trial - application to discharge jury based on reference by a police officer to an uncharged assault by inference involving the accused - irreparable prejudice? - direction given to jury effective enough to avoid any potential prejudice
CASES CITED:	R v Cook [2004] NSWCCA 52
PARTIES:	Regina Christos Podaras
FILE NUMBER(S):	2008/14226
COUNSEL:	Ms S Herbert Mr JP Watts
SOLICITORS:	Office of the Director of Public Prosecutions NSW Catherine Hunter Solicitor

JUDGMENT

1. In this trial the accused, Mr Podaras, is facing a number of charges including kidnapping. His defence is that he was not present at the time of the kidnapping of the victim. The kidnapping on the Crown case occurred at the hands of three persons, one of whom the Crown says was the accused.

2. The Crown tendered CCTV footage of the accused earlier on the same day at a hotel. The same footage showed two other persons who, the Crown says, were the other two kidnappers. Mr Podaras denies that he was in the company of those two persons earlier in the day.

3. One of the last witnesses called by the Crown in its case was a police officer. The officer was asked questions by the Crown Prosecutor about obtaining the CCTV footage. She said that the footage was obtained by asking the proprietor of the hotel for CCTV images regarding an assault at the hotel that afternoon.

4. I am told from the bar table that there was in fact an assault at the hotel that afternoon. The Crown says the assault involved the accused attacking someone who, he thought, had insulted one of the other two kidnappers in his company. Mr Watts, who appears for Mr Podaras, applied to discharge the jury once the police officer made reference to the assault in the context of the CCTV footage of the hotel that afternoon.

5. Ms Herbert, who appears as Crown Prosecutor, resisted that application.

6. I dismissed the application but agreed to a direction which I gave to the jury and which is contained in MFI 18. The direction was agreed by the parties, although Mr Watts made it clear that his primary submission was that the jury ought to have been discharged.

7. Mr Watts supported his application by arguing that the reference to the assault would cause irreparable prejudice to his client. The footage showed a person the prosecution claims is Mr Podaras striding across the screen at one stage. Mr Watts argues that the jury could reason - not only legitimately that the footage may indicate his client in the presence of the other two kidnappers - but illegitimately that his client was involved in a drunken brawl earlier in that day. Such a conclusion would be understandably prejudicial to the jury who may conclude that he was drunk and aggressive and then therefore more likely to be the person who participated in the kidnapping.

8. Mr Watts referred me to the judgment of the Court of Criminal Appeal, in R v Cook [2004] NSWCCA 52, in particular to [32] in Simpson J’s judgment. Mr Watts argued that effectively his client was in a corresponding position where any attempt to deal with the CCTV footage would expose his client as a drunk and aggressive person at the hotel that afternoon.

9. The matter in my opinion needs to be seen in the context of the issues in the trial. The accused claims that he was not at all involved in the kidnapping, nor was he in the company of the two kidnappers. Ms Herbert tendered the CCTV footage to support her case that Mr Podaras is one of the kidnappers by illustrating that he had earlier that day been in the company of the two kidnappers who were involved. Ms Herbert deliberately elected not to tender any footage demonstrating what the Crown says was an assault by Mr Podaras, because it would lead to illegitimate tendency reasoning on the part of the jury, to the effect that Mr Podaras was behaving aggressively in order to protect one of the other kidnappers. Hence the primary issue for the jury to consider, in viewing the CCTV, is whether or not the person seen crossing the screen at one instance, and returning a few seconds later I should add, was the accused. The footage does not include anything explicit about any assault.

10. The evidence also needs to be seen in the context of other evidence, from other witnesses, which indicates that Mr Podaras had been drinking with the two acknowledged kidnappers for some time. Indeed part of the prosecution case was that they had been drinking together and that he, Mr Podaras, was drunk at the time. A further contextual piece of evidence is that another witness made reference to discussion about a fight which had occurred at the hotel earlier that day.

11. In Crofts v The Queen (1996) 186 CLR 427 at 440, in a joint judgment, Toohey J, Gaudron J, Gummow J and Kirby J said the following -

“ No rigid rule can be adopted to govern decisions on an application to discharge a jury for an inadvertent and potentially prejudicial event that occurs during a trial. The possibilities of slips occurring are inescapable. Much depends upon the seriousness of the occurrence in the context of the contested issues; the stage at which the mishap occurs; the deliberateness of the conduct; and the likely effectiveness of a judicial discretion designed to overcome its apprehended impact. ”

Dawson J said in the same case at 432 that the discretion to be exercised should be exercised in favour of a discharge “only when that course is necessary to prevent a miscarriage of justice. It is in that sense that it has been said that the underlying principle is that of necessity and that ‘a high degree of need for such discharge’ must appear before a discharge would be ordered.”

12. The contested issues in this case were not so much the kidnapping itself, but whether or not Mr Podaras was one of the participants. In that sense the issue was whether he was the person who could be identified by the jury as the person in the CCTV footage. The issue was not so much focused on what he was doing in the footage, but as to whether or not it was him. It was regrettable that the witness made reference to obtaining CCTV footage of an assault. As Mr Watts argued, the jury may well think that because he was the only person in part of the footage which showed a man leaving the hotel, it could conclude that the assault must have in some way involved that person. Indeed as he said, the CCTV footage does not so much show the three of them together, although they appear at various stages.

13. The nature of the contested issues are such, in my view, that the impact was not likely to be as serious as it could have been if the primary issue had involved the kind of behaviour which the person on the screen was engaging in at the time. I also take into account the fact that the mishap occurred at a very late stage in the trial and appeared to be inadvertent.

14. The direction which I gave - which was based upon MFI 18 - raised the possibly prejudicial issue squarely and at the same time, in my opinion, gave the jury clear directions to ignore it. One must assume that juries follow directions. The directions were framed in such a way that it made clear in the context of questions I asked the Crown Prosecutor that it was no part of the Crown case that Mr Podaras was involved in any altercation at the hotel. That direction was in my opinion effective enough to avoid any potential prejudice.

15. For those reasons I rejected the application.

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