Citation: R v Christos PODARAS [2009] NSWDC 412
Court: District Court of New South Wales
Date: 28 October 2009
Judge(s): Cogswell SC DCJ
Background
The accused stood trial on charges of kidnapping and assault. The prosecution's case included evidence from the complainant, who alleged he had been abducted at the instigation of a former girlfriend and assaulted by two men upon arrival at the former girlfriend's home. The complainant could say little about the second assailant, though he noted some details in cross-examination, including a reference to a business-style shirt.
The prosecution later called the former girlfriend's mother as a witness. During cross-examination by defence counsel, she was asked whether she had been lying to protect her son, and specifically whether it was her son who had accompanied her daughter in the car carrying the complainant. The mother denied this.
That line of questioning by defence counsel prompted the Crown Prosecutor to apply for leave to recall the complainant. The Crown argued that the suggestion the second assailant might have been the former girlfriend's brother was an entirely new proposition, which had not been raised before and could not reasonably have been anticipated during the complainant's original examination-in-chief.
Legal Issues
- Whether the Crown should be granted leave under section 46 of the Evidence Act 1995 to recall the complainant after his evidence had concluded
- Whether granting such leave would impermissibly allow the Crown to split its case
Decision
The court granted leave to recall the complainant. Cogswell SC DCJ accepted the Crown's submission that the circumstances fell within section 46(1)(b) of the Evidence Act 1995, which provides a basis for recalling a witness where new matters have emerged that could not reasonably have been anticipated earlier in the proceedings.
The defence argued that the complainant had given minimal identification evidence in chief, and that the Crown could have explored further descriptive details during that examination. The court rejected this argument, drawing a clear distinction between eliciting further identification evidence of an unknown person and eliciting evidence about whether an assailant is a specific individual known to the witness. These are materially different exercises.
The court also considered the defence's reliance on the High Court's decision in MWJ v The Queen (2005) 80 ALJR 329, which acknowledged the prosecution's obligation not to split its case. Cogswell SC DCJ found that obligation was not offended here. The suggestion that the second assailant might have been the former girlfriend's brother arose for the first time during defence cross-examination of the mother, and it would be unfair to deny the Crown the opportunity to put that proposition directly to a witness who had direct knowledge of the relevant individuals.
The complainant, called without the jury to give a preliminary account, was able to say clearly that the second assailant was not the brother, describing the brother as tall and slight compared to the men he had seen. This capacity to give meaningful evidence on the point supported the decision to allow his recall.
Orders Made
- Leave granted to recall the complainant.
Key Takeaways
- Under section 46(1)(b) of the Evidence Act 1995, a court may grant leave to recall a witness where circumstances arise during later evidence that were not reasonably foreseeable when the witness originally gave evidence.
- The District Court drew a meaningful distinction between seeking further identification details and asking a witness whether a specific known individual was involved. These are different questions that call for different kinds of evidence.
- The prosecution's obligation not to split its case does not automatically bar recall where the new issue was first introduced by the defence through cross-examination of a subsequent witness.
- The High Court's observation in MWJ v The Queen that recall is generally available without injustice, subject to the no-splitting rule, was applied in a way that favoured flexibility where the Crown had been genuinely taken by surprise.
- Calling a witness in the absence of the jury to gauge the quality of their anticipated evidence is a recognised procedural step before the court determines whether to grant leave to recall.
Legislation and Cases Referenced
Legislation
- Evidence Act 1995 (NSW), s 46
Cases
- MWJ v The Queen (2005) 80 ALJR 329 (High Court of Australia, joint judgment of Gummow, Kirby and Callinan JJ)