Citation: R v Christos PODARAS [2009] NSWDC 370
Court: District Court of New South Wales
Date: 21 October 2009
Judge(s): Cogswell SC DCJ
Background
The accused faced a charge arising from an alleged assault. A witness, referred to by her role as an eyewitness to the events, had given a statement to police a few days after the incident describing the clothing worn by the alleged assailant.
When called to give evidence, the witness could not recall what the person had been wearing. The Crown Prosecutor sought leave under s 32 of the Evidence Act 1995 to allow the witness to refresh her memory from her police statement. After reading the statement, however, the witness still could not independently recollect the clothing description.
The Crown then applied under s 32(3) for leave to permit the witness to read the relevant portion of her statement aloud. Defence counsel opposed that further step.
Legal Issues
- Whether the court should grant leave under s 32(3) of the Evidence Act 1995 to permit the witness to read aloud a portion of her police statement after she remained unable to recall the relevant detail even after refreshing her memory
- Whether granting such leave would be unfair to the accused within the meaning of s 192 of the Evidence Act, or would add undue length to the proceedings
Decision
The court was satisfied on the voir dire that the witness had made her statement only a few days after the relevant events, when her memory was fresh, and that she regarded the statement as accurate. That foundation was not disputed by the defence.
The central issue was whether the Crown's purpose in tendering the clothing description was unfair to the accused. Defence counsel argued that unfairness arose because the description the witness gave was consistent with a co-offender rather than the accused, and that the Crown intended to use the evidence to undermine this witness's reliability compared to other witnesses to be called.
The court rejected that characterisation of unfairness. The clothing description was relevant evidence, and the fact that it might support a submission about the witness's reliability did not render its admission unfair to the accused. The court distinguished between evidence that operates against an accused's interests and evidence that operates unfairly against those interests.
Accordingly, leave was granted under s 32(3) for the witness to read aloud the relevant part of her statement.
Orders Made
- Leave granted to the witness under s 32(3) of the Evidence Act 1995 to read aloud the relevant portion of her police statement.
Key Takeaways
- Under s 32(3) of the Evidence Act 1995, a court may grant leave for a witness to read aloud part of a prior statement where the witness remains unable to recollect a matter even after being permitted to refresh their memory from that document.
- The District Court confirmed that the procedural foundation for such leave includes establishing that the statement was made when events were fresh in the witness's memory and that the witness regards the statement as accurate.
- Evidence operating against an accused's interests does not automatically amount to unfairness under s 192 of the Evidence Act. The court drew a clear distinction between those two concepts.
- A Crown Prosecutor's stated intention to use prior-statement evidence to challenge a witness's reliability, relative to other witnesses, does not of itself constitute unfair prejudice to the accused.
- The argument that granting leave would add undue length to the proceedings was also rejected, with the court finding the additional time attributable to the voir dire was not a sufficient reason to refuse leave.
Legislation and Cases Referenced
Legislation:
- Evidence Act 1995 (NSW), s 32 (memory refreshing and prior statements)
- Evidence Act 1995 (NSW), s 192 (leave, permission or direction may be given on terms)
Cases cited: None cited in the judgment.