R v Christos Podaras
[2009] NSWDC 413
•22 October 2009
NEW SOUTH WALES DISTRICT COURT
CITATION:
R v Christos PODARAS [2009] NSWDC 413
FILE NUMBER(S):
2008/14226
HEARING DATE(S):
JUDGMENT DATE:
22 October 2009
PARTIES:
Regina
Christos Podaras
JUDGMENT OF:
Cogswell SC DCJ
COUNSEL:
Ms S Herbert
Mr J.P. Watts
SOLICITORS:
Office of the Director of Public Prosecutions NSW
Catherine Hunter Solicitors
CATCHWORDS:
CRIMINAL LAW
trial
application by defence to discharge jury
application based on evidence given by co-offender who pleaded guilty to similar charge leading to prejudice against accused
LEGISLATION CITED:
CASES CITED:
TEXTS CITED:
DECISION:
I reject the application.
PUBLICATION RESTRICTION:
Statutory non-publication of identity of complainant.
JUDGMENT:
JUDGMENT
Mr Watts who appears for the accused has asked me to discharge the jury. His application is based on a question and answer given yesterday. Yesterday the Crown Prosecutor asked the witness Ms Singh this question:
“Q. The charge that you pleaded guilty to was a charge that on 19 April 2008 at Lakemba and other places in the State of New South Wales while in company with David Hoey and Christos Podaras did take [the complainant] without his consent with intent to obtain advantage, namely, to facilitate an assault upon [the complainant] and at the time actual bodily harm was occasioned to [the complainant], was it words similar to that was the charge you pleaded guilty to?
A. Yes.”That question and answer were followed by evidence about the witness giving an undertaking to give evidence against Mr Podaras in these proceedings. There was also evidence about her being sentenced by another judge of this court and receiving a discount of some forty per cent from her sentence as a result of her assistance in giving evidence against Mr Podaras.
The witness Singh was charged with the charge read out by the Crown Prosecutor which is the same charge, or one very similar to the charge, being faced by Mr Podaras in these proceedings and to which he has pleaded not guilty. The charge against Ms Singh arose out of the same incident as the charge which this jury is trying.
Mr Watts argues that the fact that the Crown Prosecutor included the name of his client in the charge read out to Ms Singh and upon which the judge acted in giving her a discount, must irremediably prejudice his client in this case. He argues that the inclusion of this client’s name will lead the jury to infer that the judge accepted that his client was involved, and based upon that acceptance made the significant determination of reducing Ms Singh’s sentence. He said that the better way of putting the question would have been to refer to Ms Singh being charged “with others”.
I should add that Mr Watts did not object to the question at the time but acknowledged that he had not anticipated the question being in such terms.
Mr Watts acknowledges that in cross-examining Ms Singh he will canvas with her that she is giving evidence against his client as a result of the undertaking and that she received a discount from the judge as a result of that undertaking.
The focus of the prejudice asserted by Mr Watts is therefore on the inclusion of his client’s name in the charge read out to Ms Singh, to which she pleaded guilty and upon which the judge acted.
In my opinion that is not a circumstance which warrants the discharge of the jury. It may be that some members of the jury pursue a line of thinking which Mr Watts has suggested - that there is some formal connection between the charge and the judge acting. In my opinion that problem can be remedied by a less extreme measure, namely a direction to the jury.
Ms Herbert as Crown Prosecutor has made available a proposed direction, which I will have marked for identification 6. I propose to give a direction which includes some aspects of her proposal but will include aspects of further directions suggested by Mr Watts as an alternative to his discharge application.
I therefore reject his application.
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LAST UPDATED:
14 July 2010
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