R v Christos Podaras

[2009] NSWDC 370

CITATION:	R v Christos PODARAS [2009] NSWDC 370
JUDGMENT DATE:	21 October 2009
JURISDICTION:	District Court of New South Wales
JUDGMENT OF:	Cogswell SC DCJ
DECISION:	Leave granted under s 32(3) of the Evidence Act 1995
CATCHWORDS:	CRIMINAL LAW - s 32(3) Evidence Act 1995 - application for witness to read statement aloud
LEGISLATION CITED:	Evidence Act 1995, s 32
PARTIES:	Regina Christos Podaras
FILE NUMBER(S):	2008/14226
COUNSEL:	Mr S Herbert Mr J Watts
SOLICITORS:	Director of Public Prosecutions NSW Catherine Hunter Solicitor

JUDGMENT

1. The current witness, Maria Mavrothalassitis, is giving evidence of what she saw as part of the events giving rise to an assault that the accused has been charged with. She described a man assaulting the victim as “wearing a yellow shirt and jeans.”. That description is contained in a statement made by her to the police on 22 April 2009. When asked in the witness box for her recollection of what the man was wearing she could not recall that aspect of her description. Ms Herbert, who appears as Crown Prosecutor, sought leave under s 32 of the Evidence Act 1995 to permit the witness to refresh her memory from the statement.

2. It was established on the voir dire that the statement was made when the events were fresh in her memory. The statement was made only a few days after the events. It was further established that the witness found the statement to be accurate. Leave was not opposed on that issue by Mr Watts, who appears for the accused.

3. However, after she refreshed her memory from the statement her response to whether or not she could now recollect was that she still could not recollect what the person was wearing at the time. She said that no doubt she was able to recollect at the time of making her statement but could not now say from her personal recollection what the person was wearing.

4. Mr Watts opposes any further attempt at reviving the witness’ memory or any attempt under s 32(3) of the Evidence Act to permit her to read aloud the relevant part of her statement. He said it would be unfair to his client and also add unduly to the length of the hearing. He makes those submissions by reference to s 192 of the Evidence Act.

5. There has been some additional hearing time as a result of some questions on the voir dire. Mr Watts pointed out that the unfairness is based upon the assertion that it is common ground that the description otherwise given by this witness of the person assaulting the victim was consistent with a co-offender, not this accused. The unfairness Mr Watts says is that it enables the Crown Prosecutor to reduce the impact of this witness’ evidence in comparison to another witness who will be called.

6. Ms Herbert frankly acknowledges that her submission will be that the evidence of this witness will be less reliable than the evidence of other witnesses. The description of the clothing will be one basis for that submission. The witness’ observation in her statement - which was marked VD B - was clearly relevant. It seems to be me to be an appropriate basis for the Crown Prosecutor to tender it.

7. I do not regard the reason for the tender as imposing any unfairness upon the accused. The evidence - which as I said is relevant - merely provides a basis for a submission about the reliability of the witness. That submission may well be against the accused’s interests, but not in a way which in my opinion is unfair.

8. Accordingly, I propose to grant leave to the witness under s 32(3) of the Evidence Act.

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