R v Christos PODARAS [2009] NSWDC 412

New South Wales District Court

CITATION: R v Christos PODARAS [2009] NSWDC 412

JUDGMENT DATE: 28 October 2009

JURISDICTION: District Court of New South Wales

JUDGMENT OF: Cogswell SC DCJ

DECISION: I grant leave to recall the witness.

CATCHWORDS: CRIMINAL LAW - trial - application to recall witness pursuant to s 46 of the Evidence Act 1995 - application made on basis of evidence given in cross-examination by later witness - whether splitting Crown case

LEGISLATION CITED: Evidence Act 1995 s 46

CASES CITED: MWJ v The Queen (2005) 80 ALJR 329

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. The Crown Prosecutor, Ms Herbert, has sought leave under s 46 of the Evidence Act 1995 to recall a witness.

2. The circumstances of that leave are these. The alleged victim in this case of a kidnapping and assault was called to give evidence by the prosecution. His name was [the complainant]. He gave evidence that he was assaulted by two men at the instigation of a woman whom he knew. He was able to give some description of one of the men but was able to say very little, if anything, about the other man. The person I refer to as the other man, the prosecution claims, is the accused.

3. The complainant claimed that he was kidnapped at the instigation of a former girlfriend and driven from his home to his former girlfriend's home. He was there met by his former girlfriend's mother. He was dragged out of the car. He saw the other man open the boot of the car and was able to give a very limited description of what the other man was wearing. That was elicited in cross-examination.