R v Christos Podaras

[2009] NSWDC 412

CITATION:	R v Christos PODARAS [2009] NSWDC 412
JUDGMENT DATE:	28 October 2009
JURISDICTION:	District Court of New South Wales
JUDGMENT OF:	Cogswell SC DCJ
DECISION:	I grant leave to recall the witness.
CATCHWORDS:	CRIMINAL LAW - trial - application to recall witness pursuant to s 46 of the Evidence Act 1995 - application made on basis of evidence given in cross-examination by later witness - whether splitting Crown case
LEGISLATION CITED:	Evidence Act 1995 s 46
CASES CITED:	MWJ v The Queen (2005) 80 ALJR 329
PARTIES:	Regina Christos Podaras
FILE NUMBER(S):	2008/14226
COUNSEL:	Ms S Herbert Mr J.P. Watts
SOLICITORS:	Office of the Director of Public Prosecutions NSW Catherine Hunter Solicitors

JUDGMENT

1. The Crown Prosecutor, Ms Herbert, has sought leave under s 46 of the Evidence Act 1995 to recall a witness.

2. The circumstances of that leave are these. The alleged victim in this case of a kidnapping and assault was called to give evidence by the prosecution. His name was [the complainant]. He gave evidence that he was assaulted by two men at the instigation of a woman whom he knew. He was able to give some description of one of the men but was able to say very little, if anything, about the other man. The person I refer to as the other man, the prosecution claims, is the accused.

3. The complainant claimed that he was kidnapped at the instigation of a former girlfriend and driven from his home to his former girlfriend’s home. He was there met by his former girlfriend’s mother. He was dragged out of the car. He saw the other man open the boot of the car and was able to give a very limited description of what the other man was wearing. That was elicited in cross-examination.

4. The prosecution later called the former girlfriend’s mother who was at the scene where the car arrived. She was asked by Mr J.P. Watts, counsel for the accused, whether she was protecting her son by lying in the case. She was asked by Mr Watts whether it was her son who was in the car with her daughter when the car arrived with the complainant. The mother denied that it was her son.

5. It is on the basis of that cross-examination of the mother that Ms Herbert applies for leave to recall the complainant. She says that had she known that there was an issue whether one of the assailants might have been the brother of the former girlfriend then she would have asked the complainant that in chief. The circumstances therefore fall within s 46(1)(b) of the Evidence Act she argues.

6. Ms Herbert called the complainant today to give evidence without the jury to ascertain two things. The first was whether he was able to give evidence adequately without a Hindi interpreter. Although I have not heard submissions from either counsel on that question my own view is that he was adequately able to give that evidence. If counsel wish to be heard on that view then I will invite them in due course.

7. The second reason for calling the complainant was to ascertain what evidence he could give about the proposition that one of the assailants was his former girlfriend’s brother. He said that it was not the brother. The brother was a tall boy, six feet or more, with a skinny body. The offenders he saw were around five foot eight inches tall and had similar healthy figures. He said that he was able to say that it was not the brother because although he was not able to see the other man when he was taken from his home he did see the other man go to the boot of the car. At that time he was able to see his body shape and hair style and it was not the brother.

8. Mr Watts opposes Ms Herbert’s application for leave, pointing out that the complainant was not able to give any adequate description at all of the other man. Mr Watts also argues that effectively Ms Herbert is being given an opportunity to split her case which should not be allowed. He refers me to the decision of the High Court in MWJ v The Queen (2005) 80 ALJR 329 and in particular a passage from the joint judgment of Gummow, Kirby and Callinan JJ. At [40] their Honours said as follows:

“If the evidence in the case has not been completed, a party genuinely taken by surprise by reason of a failure on the part of the other to put a relevant matter in cross-examination, can almost always, especially an ordinary civil litigation, mitigate or cure any difficulty so arising by seeking or offering the recall of the witness to enable the matter to be put. In criminal cases, in many jurisdictions, the salutary practice of excusing witnesses temporarily only, and on the understanding that they must make themselves available to be recalled if necessary at any time before a verdict is given, is adopted. There may be some circumstances in which it could be unfair to permit the recalling of a witness, but in general, subject to the obligation of the prosecution not to split its case, and to present or make available all of the relevant evidence to an accused, the course that we have suggested is one that should be able to be adopted on most occasions without injustice.”

Mr Watts argues that an undesirable effect of me granting Ms Herbert leave would be to enable her to split her case.

9. In my opinion it is appropriate to grant leave to recall the witness. It is true that his description of the other man in his evidence-in-chief was minimal. But he did make a reference in cross-examination to noticing that the man at the boot of the car was wearing a kind of business shirt. Mr Watts argues that that could have been explored by Ms Herbert. In my opinion that submission is met by the proposition that there is a significant difference between eliciting further evidence of identification of a person on the one hand and eliciting evidence about whether or not a person to be identified is a particular person known to the witness. In this case that difference is apparent. The complainant was clear that he knows his former girlfriend’s brother and equally clear that it was not the brother.

10. The proposition that it might have been the brother was not something which was raised or could have been anticipated in my opinion by Ms Herbert. It was first raised in cross-examination of the mother. It would be unfair in my opinion for the Crown not to be given an opportunity to have that proposition put to the complainant, who is clearly in my view in the position where he could have given evidence about the matter in examination-in-chief.

11. Accordingly for those reasons I grant leave.

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