R v Christos PODARAS [2009] NSWDC 275

New South Wales District Court

CITATION: R v Christos PODARAS [2009] NSWDC 275

JUDGMENT DATE: 20 October 2009

JURISDICTION: District Court of New South Wales

JUDGMENT OF: Cogswell SC DCJ

DECISION: The application is refused.

CATCHWORDS: CRIMINAL LAW - jury trial - Crown Prosecutor's opening to the jury - evidence will not accord to opening - application to discharge - whether to discharge or give a direction

PARTIES: Regina Christos Podaras

FILE NUMBER(S): 2008/14226

COUNSEL: Ms Herbert Mr Watts

SOLICITORS: Director of Public Prosecutions Catherine Hunter Solicitor

JUDGMENT

1. Mr Watts for the accused has applied to discharge the jury.

2. One of the issues in this case is the identification of the accused. Part of the Crown Prosecutor's opening was this sentence - " [complainant] says that he was carried to the car by all three of them; by Mrs Singh, by the person who is David Hoey and by the accused ." An available interpretation of that sentence is that the complainant identifies the accused as one of the persons who carried him out to the car. In fact, that is not the Crown's case. It is now apparent from the evidence of the complainant, who is still in evidence in chief, that he is not able to identify the accused as one of the persons who carried him out to the car. Nor does Ms Herbert, who appears as Crown Prosecutor, anticipate that he will give such evidence.

3. Mr Watts argues that the Crown Prosecutor made a distinction in the manner of her opening at that point where she specifically referred to something which she expected the complainant would say as evidence. That is in contrast to the balance of her opening which was in a narrative form. I make no criticism myself of the narrative form. In fact it is a very good and clear form of opening as the Crown's opening was in this case.