R v Christos PODARAS [2009] NSWDC 277

New South Wales District Court

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.