Christos PODARAS v R

Judgment 1HOEBEN JA: I agree with Hidden J. 2HIDDEN J: At a trial in the District Court the appellant was found guilty of specially aggravated kidnapping and recklessly inflicting grievous bodily harm. He was later sentenced to terms of imprisonment. He appeals against conviction only. He requires leave to proceed with the appeal as it is well out of time. However, adequate reasons for the delay have been furnished and, there being no opposition by the Crown, leave should be granted. 3Given the limited scope of the only ground of appeal, it is unnecessary to examine the evidence in any detail. The charges arose out of the same incident. The victim, Satyendra Midya, had been in a relationship with Roslyne Singh, but the relationship had soured and come to an end. It was the Crown case that on the day of the offences, 19 April 2008, Ms Singh procured the appellant and another man, David Hoey, to assault the victim. In the evening the three travelled to the victim's home in Ms Singh's car. There he was assaulted and dragged to the car. The car was driven off and he was further assaulted during the journey. The car stopped near the home of Ms Singh's mother, and the victim managed to escape and seek assistance. 4The victim did not know the appellant or Mr Hoey. Ms Singh and Mr Hoey pleaded guilty to aggravated kidnapping and were dealt with by another judge. Ms Singh gave evidence against the appellant at his trial. Her evidence, of course, was vital but there was other evidence of a circumstantial nature tending to link the appellant to the incident. Among this was evidence that he was in the company of Ms Singh and Mr Hoey at a hotel earlier in the evening when the offences were committed. It was this evidence which was the focus of the appeal. The appellant did not give evidence, but through cross-examination he put in issue whether he was involved in the offences at all and, in particular, whether he was at the hotel on that occasion. 5Ms Singh gave evidence that the three of them were together at the hotel. In addition, CCTV footage from the hotel was admitted into evidence. It was the Crown case that the three of them could be seen in the footage. Ms Singh identified herself and Mr Hoey, but was not asked to identify the appellant. There was another man in the footage, and the Crown invited the jury to accept that it was the appellant from their own observations of him, and also by comparing the appearance of the man with photos taken of the appellant at the time of his arrest and the clothing worn by the man with items of the appellant's clothing seized or photographed by police. 6The footage was admitted over objection, but that decision is not challenged in the appeal. Police had sought footage from the hotel in connection with an allegation that earlier in the evening the appellant had assaulted a man who had said something which could be taken as disparaging of Ms Singh. However, no such assault was depicted in the footage admitted into evidence. It depicted the man said to be the appellant walking to and from the bar area, and very shortly thereafter leaving the hotel. Of course, the Crown did not lead evidence of the assault and the footage was tendered only as evidence that the appellant was present at the hotel. 7However, in the evidence of Ms Singh's mother, Ms Ninjula Kumari, there was an oblique reference to the incident. In answer to a question in cross-examination about what Ms Singh had later told her about the events of the relevant day, Ms Kumari responded (among other things) that she had told her that "they got fight" in the hotel. More importantly, one of the investigating police, Senior Constable Bronwyn Clarke, was asked in examination-in-chief whether she had contacted staff at the hotel. She said that she did. She was asked for what purpose she did so, the Crown prosecutor then appearing no doubt expecting her to say no more than that it was to obtain CCTV footage. Her answer, however, was that her purpose was to "obtain CCTV footage of an assault that had happened earlier on ... ." She did not say that the appellant was alleged to have been involved in that assault. 8This led to an application to discharge the jury, which the trial judge refused. It is that decision which is challenged in this appeal, the only ground being that his Honour's decision not to discharge the jury occasioned the risk of a substantial miscarriage of justice. 9Trial counsel for the appellant, who did not appear in this court, had argued that the footage could convey that the appellant had been involved in some kind of incident not captured by the relevant camera, whereupon he had left the hotel. It was argued that there was a danger that the jury might speculate that he had been involved in the assault referred to by the police officer and, given the nature of the charge he faced, this would be seriously prejudicial to him. 10His Honour rejected the application for discharge after determining that the risk of prejudice would be removed by a carefully worded direction to the jury after an exchange, in their presence, with the Crown prosecutor. After referring to the evidence of Ms Kumari and of Senior Constable Clarke, he asked the Crown prosecutor whether it was any part of her case that the accused was involved in any fight or assault at the hotel, including any verbal or physical altercation either as aggressor or as victim. The Crown prosecutor responded that it was not. His Honour went on to ask whether there was "any evidence in the trial" that the accused was involved in any way at all in any fight or assault at the hotel, and the Crown prosecutor responded that there was not. His Honour then gave this direction to the jury: "That's what I expected the answer would be and I was concerned because of those answers that we should clear that up, that was just one of the things that we wanted to settle, a number of things that we just sorted out. It's important that I say that to you because having heard these answers from the Crown Prosecutor which I expected her to say I direct you as a matter of law that you must not speculate about this matter. You must not use the evidence that was given yesterday by Ms Kumari or the police officer in any way that's adverse to Mr Podaras in the trial. The footage was tendered, that is the DVD, as part of the prosecution case as to who was at the hotel and it is very important and it's a legal direction that you don't speculate about what was going on in the footage, nor do you use it in any way adverse [to] the accused." 11Counsel for the appellant in this court, Mr Barrow, submitted that the evidence of Senior Constable Clarke, together with that of Ms Kumari, created a prejudice which could not have been cured by his Honour's questions of the Crown prosecutor and his direction to the jury or, indeed, by any direction. Put shortly, he argued that the evidence that the footage was obtained because of an alleged assault, together with the fact that it was presented at the appellant's trial and focused upon his movements within the hotel and in leaving it, would inevitably have conveyed to the jury that it was he who was said to have been involved in that assault. The exchange between the trial judge and the Crown prosecutor and the direction then given, he said, would not have been effective to remove that impression. 12A succinct summary of the principles governing an appeal on this ground is to be found in the judgment of this court in GAR v R (No. 2) [2010] NSWCCA 164, at [59]: "The failure to discharge a jury is not a ground of appeal in itself. The appeal is against conviction: Maric v The Queen (1978) 52 ALJR 631 at 634. The question on appeal is whether there was such a high degree of necessity for the discharge of the jury that the failure to order such a discharge has resulted in a mistrial. Much leeway must be allowed for the trial Judge to evaluate considerations relevant to the fairness of the trial, bearing in mind that the Judge will usually have a better appreciation of the significance of the events complained of, seen in context, than can be discerned from reading a transcript: Crofts v The Queen [1996] HCA 22; (1996) 186 CLR 427 at 440-441. Nevertheless, the duty of the Court of Criminal Appeal, where the exercise of discretion to refuse a discharge is challenged, is not confined to examining the reasons given for the order to make sure that the correct principles were kept in mind. This Court must decide for itself whether in the circumstances, the result of the refusal to discharge the jury occasioned a risk of a substantial miscarriage of justice: Crofts v The Queen at 441; Qoro v R [2008] NSWCCA 220 at [29]." 13At the hearing of the appeal the CCTV exhibit could not be found, but we received a copy of it. I have viewed it. Nothing that can be seen suggests that the man said to be the appellant was involved in an assault, let alone the assault of a man because of a perceived slight to Ms Singh. It was put that the appellant appears to be striding when he is seen in the bar area, and that a woman said to be Ms Singh puts her hands to her face. These features are not clear to me but, in any event, they would not have conveyed to the jury that there had been some incident involving Ms Singh. As the Crown prosecutor in this court pointed out, it is important to avoid reading into what is depicted background circumstances of which the judge and the parties are aware, but of which the members of the jury know nothing. 14In my view, the way in which the trial judge dealt with the problem was appropriate. I am not persuaded that in refusing to discharge the jury his Honour's discretion miscarried, nor does it appear to me that that decision occasioned a risk of a substantial miscarriage of justice. I would dismiss the appeal. 15BEECH-JONES J: I have had the benefit of reading a draft of the judgment of Hidden J and viewing the CCTV footage referred to in [13] a number of times. I agree with his Honour's reasons and the proposed orders.