R v Christos PODARAS [2009] NSWDC 370

New South Wales District Court

CITATION: R v Christos PODARAS [2009] NSWDC 370

JUDGMENT DATE: 21 October 2009

JURISDICTION: District Court of New South Wales

JUDGMENT OF: Cogswell SC DCJ

DECISION: Leave granted under s 32(3) of the Evidence Act 1995

CATCHWORDS: CRIMINAL LAW - s 32(3) Evidence Act 1995 - application for witness to read statement aloud

LEGISLATION CITED: Evidence Act 1995, s 32

PARTIES: Regina Christos Podaras

FILE NUMBER(S): 2008/14226

COUNSEL: Mr S Herbert Mr J Watts

SOLICITORS: Director of Public Prosecutions NSW Catherine Hunter Solicitor

JUDGMENT

1. The current witness, Maria Mavrothalassitis, is giving evidence of what she saw as part of the events giving rise to an assault that the accused has been charged with. She described a man assaulting the victim as "wearing a yellow shirt and jeans.". That description is contained in a statement made by her to the police on 22 April 2009. When asked in the witness box for her recollection of what the man was wearing she could not recall that aspect of her description. Ms Herbert, who appears as Crown Prosecutor, sought leave under s 32 of the Evidence Act 1995 to permit the witness to refresh her memory from the statement.

2. It was established on the voir dire that the statement was made when the events were fresh in her memory. The statement was made only a few days after the events. It was further established that the witness found the statement to be accurate. Leave was not opposed on that issue by Mr Watts, who appears for the accused.

3. However, after she refreshed her memory from the statement her response to whether or not she could now recollect was that she still could not recollect what the person was wearing at the time. She said that no doubt she was able to recollect at the time of making her statement but could not now say from her personal recollection what the person was wearing.