R v Christos Podaras

[2009] NSWDC 277

CITATION:	R v Christos PODARAS [2009] NSWDC 277
JUDGMENT DATE:	20 October 2009
JURISDICTION:	District Court of New South Wales
JUDGMENT OF:	Cogswell SC DCJ
DECISION:	The evidence is rejected.
CATCHWORDS:	CRIMINAL LAW - jury trial - objection to evidence under s 137 of Evidence Act 1995 - witness referring to assailant by name but not from personal knowledge - probative value outweighed by the danger of unfair prejudice to the accused
LEGISLATION CITED:	Evidence Act 1995 s 76, s 137
PARTIES:	Regina Christos Podaras
FILE NUMBER(S):	2008/14226
COUNSEL:	Ms Herbert Mr Watts
SOLICITORS:	Director of Public Prosecutions Catherine Hunter Solicitor

JUDGMENT

1. A witness has given evidence about being assaulted by a man called Chris. Mr Watts for the accused objects to that evidence under s 137 of the Evidence Act 1995. He argues that I must refuse to admit it because its probative value is outweighed by the danger of unfair prejudice to his client.

2. The evidence has been adduced in response to a question in re-examination by the Crown Prosecutor, Ms Herbert. It is common ground that this witness did not know the name of the man who was assaulting him. He had heard reference by another person assaulting him to the name Chris followed by the experience of being assaulted by the man probably to whom that was addressed.

3. Section 76 of the Evidence Act provides that evidence of an opinion is not admissible to prove the existence of a fact about the existence of which the opinion was expressed. In my view the assertion by the witness that he was assaulted by “that man called Chris” can only be an inference or opinion formed by him. It therefore cannot prove that the person assaulting him was named Chris. Its probative value is therefore in my opinion slight in the context of the issues in this case.

4. Mr Watts argues that the danger of unfair prejudice to his client is that it elevates the evidence of this witness to identification evidence when it is common ground that this witness cannot give identification evidence. In other words he argues the evidence could be misused by the jury therefore leading to unfairness to his client in a prejudicial way.

5. I agree with his submission and I propose to reject the evidence and to direct the jury accordingly.

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