New South Wales District Court CITATION: R v Christos PODARAS [2009] NSWDC 369 JUDGMENT DATE: 26 October 2009 JURISDICTION: District Court of New South Wales JUDGMENT OF: Cogswell SC DCJ DECISION: The tender is rejected. CATCHWORDS: CRIMINAL LAW - evidence - police statement tendered as evidence of a lie - objection pursuant to s 281 Criminal Procedure Act 1986 - objection pursuant to s 85 Evidence Act 1995 LEGISLATION CITED: Criminal Procedure Act 1986 s 281 Evidence Act 1995 s 85 PARTIES: Regina Christos Podaras FILE NUMBER(S): 2008/14226 COUNSEL: Ms S Herbert Mr J Watts SOLICITORS: Director of Public Prosecutions NSW Catherine Hunter Solicitor JUDGMENT 1. The Crown Prosecutor, Ms Herbert, is tendering some evidence to which Mr Watts who appears for the accused, Mr Podaras, objects. Ms Herbert is tendering an account given by a police officer who knocked on the door of Mr Podaras. 2. The Crown case is that Mr Podaras assisted another person assaulting a third person. The Crown case is that as a result of that assault one of the assailants was stained with blood. The Crown alleges that the assailant and Mr Podaras concocted an account for the presence of that blood. They decided that the other person would report that she had been assaulted by the person whom the Crown says is the victim of the crime that Mr Podaras is charged with. The Crown's case is that a triple-0 call was made and that both Mr Podaras and his co-offender (so far as the Crown is concerned) falsely reported an assault to the police. 3. The evidence tendered by the Crown at this stage concerns the police arriving at the unit where Mr Podaras and his alleged co-offender were, in response to that call which the Crown says is fabricated. 4. The police officer identified himself and asked who had called the police there tonight. The police officer said that Mr Podaras responded "Nothing is going on, no-one has called the police." The police officer asserted that someone had called the police from that unit and asked whether everything was okay. The police officer said Mr Podaras responded "Nothing is going on; no-one has called the police." The police officer went on to observe that Mr Podaras' speech was "slow and when questioned; his responses were delayed." 5. The statement being tendered became exhibit VD #Q. Mr Watts for Mr Podaras tendered on the voir dire exhibit VD #R which was a report by a psychiatrist, Dr Gordon Elliott. It notes that Mr Podaras has "an indefinite history of developmental delay." The doctor formed the view that Mr Podaras "suffers from cognitive impairment" which falls "within the borderline range." The doctor thought that Mr Podaras' verbal abilities "were extremely impoverished or in the moderately mentally retarded range." 6. Mr Watts objects to the tender of the evidence on three bases. The first is that the statement is not admissible because there is no tape recording of what Mr Podaras said pursuant to s 281 of the Criminal Procedure Act 1986. 7. I should have added that Ms Herbert tenders the statement as evidence of a lie asserted by Mr Podaras. 8. I do not regard s 281 as applicable in this case. Mr Podaras was not himself suspected by any officer of having committed an offence, in the circumstances where the police were called to a unit in response to a complaint that a neighbour of the caller had been assaulted. I do not regard it to be the case that the police could reasonably have suspected Mr Podaras himself of having committed an offence. 9. In any event I would regard the non tape recording of what was said by Mr Podaras as being reasonably excusable in the circumstances given that the police were knocking on the door in response to a call. It could hardly be expected that they would await the response to their knocking on the door armed with a tape recorder or video. 10. Mr Watts' second objection is under s 85 of the Evidence Act 1995. He says that the circumstances in which the admission was made were "not such as to make it unlikely that the truth of the admission was adversely affected." I am able to take into account under s 85(3) any relevant condition or characteristic of the person said to have made the admission including any "mental, intellectual or physical disability". 11. Ms Herbert argues that Mr Podaras was asked a straightforward question by the police to which he gave a responsive answer. The circumstances were not such as to make it unlikely that the truth of the admission was adversely affected. 12. Given the evidence that is before me I am not convinced that the circumstances were such as to make it unlikely that the truth of the admission was adversely affected. The evidence points to Mr Podaras' cognitive ability. There is evidence in the trial of an exchange between him and the person the Crown says is his co-offender involving a broken vase or a broken bottle. There is also the evidence of Mr Podaras' very limited verbal ability. Those circumstances are such that I am not convinced that they were such as to make it unlikely that the truth of the admission was adversely affected. 13. Although unnecessary to determine, I would also regard it as unfair to Mr Podaras to use the evidence having regard to the circumstances in which the admission was made and in particular given the evidence of his cognitive ability. 14. Accordingly I reject the tender. ********** 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.