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. 4. However, I can see the force in Mr Watts' point. In my opinion the matter does not warrant the discharge of the jury. Discharge of a jury, even early in a trial, is an extreme measure and, in my opinion, ought not to be taken unless, if it is not necessary, it is really the appropriate course. In my opinion a more appropriate course is the alternative suggested by Mr Watts - if he was unsuccessful in his primary application - namely that there needs to be some sort of correction. 5. Ms Herbert has proposed that she is prepared to make reference - by way of correction - to her opening at this stage, the commencement of the second day of the trial before the complainant resumes his evidence in chief. I propose to confirm that an opening is not evidence itself. I regard that as an appropriate course to deal with any possible prejudice occasioned to the accused by the issue raised by Mr Watts. 6. I might add that I doubt whether that prejudice is likely to crystallise if there were no correction made. I think it will be apparent, by the sounds of what I am told by counsel, that there is no issue about this witness being able to identify the accused. I expect by the time the jury is considering its verdict that that will be very clear in their minds that any passing interpretation of a sentence in the opening is likely to have been lost. Nevertheless, I regard the proposed alternative by Mr Watts which is to be adopted by the Crown as appropriate. ********** 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.