New South Wales District Court CITATION: R v Christos PODARAS [2009] NSWDC 413 JUDGMENT DATE: 22 October 2009 JURISDICTION: District Court of New South Wales JUDGMENT OF: Cogswell SC DCJ DECISION: I reject the application. 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 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. 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." 2. 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. 3. 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. 4. 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". 5. 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. 6. 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. 7. 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. 8. 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. 9. 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. 10. I therefore reject his application. ********** DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated.