District Court New South Wales Medium Neutral Citation: R v Goodwin (No. 2) [2022] NSWDC 153 Hearing dates: 04, 06 & 10 May 2022 Date of orders: 04, 06 & 10 May 2022 Decision date: 11 May 2022 Jurisdiction: Criminal Before: Bennett SC DCJ Decision: The accused application to exclude from the interview in which he participated with the police questions and answers 404 to 407 is refused The Crown may adduce evidence from Shaelene Elliott evidence of the representations set forth in paragraph [72] of her statement MFI 7. Upon the discharge of the third juror and with the consent of the accused and the Crown provided in writing the trial shall continue with nine jurors. Catchwords: CRIMINAL PROCEDURE — Trial — Jury — Discharge of individual juror JUDGEMENTS AND ORDERS — Ruling on evidence in advance of or in course of trial Legislation Cited: Crimes Act 1900 Evidence Act 1995 Jury Act 1977 Category: Principal judgment Parties: Regina (Crown) Tristan Goodwin (Accused) Representation: Ashlee Weir (Solicitor Advocate) Joseph Simpson (counsel for the accused) Director of Public Prosecutions (NSW) (Crown) Aboriginal Legal Service (NSW/ACT) Limited (Accused) File Number(s): 2021/00068839 Publication restriction: No publication of the name of the complainant or of any information which may enable her identity to be ascertained Publication of this judgement is restricted until the conclusion of the trial JudgEment on the applications to exclude a portion of the interview with police; exclude evidence proposed from shaelene elliott and on the discharge of a third juror Introduction 1. Tristan Goodwin was presented for trial on Tuesday, May 3, 2022 upon an indictment contained four counts alleging sexual offences against one complainant. Count One On 10 March 2021, at Schofields in the State of New South Wales, did intentionally touch AK sexually, without the consent of AK to the touching, knowing she was not consenting. S 61KC(a) Crimes Act 1900 Law part code 93656 Counts Two, Three and Four On 10 March 2021, at Schofields in the State of New South Wales, did have sexual intercourse with AK, without the consent of AK to the touching, knowing she was not consenting. S 61I Crimes Act 1900 Law part code 271 The Applications To Exclude Portion of the Interview with Police 1. The first matter for determination arose May 4, 2022 before a jury was selected. The accused was arraigned before transcript of the interview of the accused by police was tendered on the voir dire (Exhibit A) and argument presented. 2. The interview was of significant length, extending to 604 questions over 76 pages. The parties resolved their issues over the content of the interview to be presented to the jury but for questions and answers 404 to 447. The parties agreed upon the exclusion of the accused's responses immediately preceding these, unless the court did not reject the tender of the impugned questions and answers in which case those and the preceding questions and answers would be tendered to provide the context of all that was said at that point in the interview. 3. I shall begin at Q 439: Q439 (NO AUDIBLE REPLY) A Why wouldn't my neighbour next door be hearing people screaming and running down the street if I was attacked by her? Q440 (NO AUDIBLE REPLY) A 'Cause it didn't happen. She was, came there for one reason; that's why they wanted to come there, to sleep with me, and that was the whole intention, um --- Q441 Was that their intention? A Well, that's what I'm assuming. I --- Q442 When --- A --- you --- Q443 --- you --- A --- know --- Q444 --- said, they … come, they … their intention was to come and sleep with me, what do you mean by --- A Well --- Q445 --- they? A --- I am just saying, like, th, that's, you know, like, what I was, you know, possibly thinking, like, w, you know, I was, sort of, like, well, why, why do you, sort of, what to come back to my house, sort of thing, you know? Q446 (NO AUDIBLE REPLY) A 'Cause women that have, sort of, said that stuff to me usually try and sleep with me, but, um as I said, when I was in the bed, she was the aggressor; she was over, sh, she was o, over me --- Q447 Uh-huh. A --- and that's just the, that's just the way it was; I wasn't, I wasn't trying to attack anyone, or anything, and it just didn't happen. So, I, I just don't, I don't know what else to say about that. I just --- 1. The preceding questions prompted responses from the accused regarding the complainant and her companion, how they came to return with him to his home, their conversation, the image he presented as someone of wealth, and conduct by the complainant to facilitate the sexual activity. Read in its entirety with the challenged questions and answers, the Crown would use this as evidence relevant to the issues of consent and whether the accused knew that the complainant was not consenting to the sexual activity charged. 2. The accused admits the sexual encounter, including the conduct upon which Counts One, Two, and Three were framed. Count Two is an allegation of fellatio and Count Three an allegation of penile vaginal intercourse. The allegation of fellatio upon which Count Four is framed is denied. The accused denies that what occurred was without the complainant's consent and asserts that he had a reasonable belief that the complainant was consenting. 3. Whether the complainant consented to the sexual activity was the subject of evidence from the complainant, her companion Ms Elliott, and of the surrounding circumstances. The accused's belief upon reasonable grounds that she was consenting will require the jury to consider the circumstances that they find the evidence proves, in keeping with s 61HE Crimes Act 1900 as it was at the time of the alleged conduct. The responses provide evidence of the accused's version of events relevant to these questions. 4. S 61HE provides, relevantly, (3) A person who without the consent of the other person (the "alleged victim") engages in a sexual activity with or towards the alleged victim, … , knows that the alleged victim does not consent to the sexual activity if— (a) the person knows that the alleged victim does not consent to the sexual activity, or (b) the person is reckless as to whether the alleged victim consents to the sexual activity, or (c) the person has no reasonable grounds for believing that the alleged victim consents to the sexual activity. (4) For the purpose of making any such finding, the trier of fact must have regard to all the circumstances of the case— (a) including any steps taken by the person to ascertain whether the alleged victim consents to the sexual activity, but (b) not including any self-induced intoxication of the person. 1. The accused's challenge to the questions and answers was in terms that his responses provide no more than evidence of speculation as to what purpose the complainant and her companion had toward him. There was criticism of the form of question 441, inviting the accused to offer his view of what was is the mind of the complainant and her companion, which it was said would not in such form be permitted during examination or cross examination. 2. I do not accept these submissions. The accused's knowledge of the lack of consent in one or other of the three ways the provision contemplates is a matter of which the jury must be satisfied beyond reasonable doubt before they may find the accused guilty of any of these offences. The questions and responses are patently relevant to the accused's state of mind. Read in the context of the entirety of this portion of the interview, the proposition posed at question 441 was not an unreasonable enquiry about his state of mind, specifically regarding his asserted perception of the purposes exhibited by the complainant and Ms Elliott. I refused the application to excise the questions and answers challenged on behalf of the accused, and it follows that the preceding questions and answers should also remain for consideration by the jury. To Exclude Evidence Proposed from Shaelene Elliott 1. The second matter for determination arose on May 6, 2022 beginning at page 135 of the transcript when Shaelene Elliott was examined by the Crown. Her statement was marked for identification 7; I was taken to paragraph 72 which represents, Tristan started to touch me over my shirt on my breast area. He tried to unbutton my pants. I said, "Get off me. Go away". Tristan tried to grab me across my legs. I got up off the bed got my shoes and took a pretend call and said, "Mum we're coming we're coming". I was still in the room. 1. The accused's counsel objected to the Crown leading this evidence of this uncharged conduct, relying upon s 137 Evidence Act 1995, and submitted that there was a risk of unfair prejudice to the accused for if the jury accepted this to have occurred they might embark upon tendency reasoning, even though, according to the submission, the evidence given by the complainant about this did not explicitly assert that the accused touched Ms Elliott's breast. 2. The complainant gave evidence of this at page 30 of the transcript which included, commencing at line 29, When you were in the bedroom and you were all watching the movie, can you tell us what the next thing you remember happening is? A. I remember he put his arm around both of us ‑ not exactly, like, around our shoulders, but behind. Like, his arm was behind us. And then, yeah, we just kind of stayed like that for a while. Q. When his arm was around ‑ behind your head, how you were laying at that point in time? A. I was laying on my back, but I was sort of perched near the end of the bed, near the side. Q. What about Shae? A. I can't remember how she was positioned at the time. Q. When you say, "the side of the bed", using that diagram that you've drawn, are you able to indicate to us where you mean by the side of the bed? A. Where I'm, like, positioned in the diagram, that's where I was ‑ that's where I would say I was perched. Q. What happened after that? A. Then that's when he started kind of trying to touch us, and that's when I sort of asked Shae ‑ I tried to message her at the corner, like, out of his sight. And that's when she went through to the walk‑in row back ‑ I think there was a bathroom behind that. Q. I'll just take you back. You said, "He started trying to touch us." A. Yeah. Q. Can you describe to us what he was doing? A. I remember him trying to put his hand down my pants and know ‑ like, from ‑ like, I could see the same sort of happening to Shae. And she was getting uncomfortable. And then he also tried to kiss both of us. Q. When you say he tried to kiss both of you, can you describe what happened? A. Like, he turned ‑ like, he put his lips to mine, but it was very much, like, one‑way, and I sort of pulled my head away, and I saw him do the same thing to Shae. Q. Are you able to remember who he did it to first? A. No. 1. S 137 Evidence Act 1995 provides, In a criminal proceeding, the court must refuse to admit evidence adduced by the prosecutor if its probative value is outweighed by the danger of unfair prejudice to the defendant 1. The evidence available from both witnesses is relied upon by the Crown as part of the context in which the misconduct allegedly occurred, and the evidence of Ms Elliott for corroboration of the assertions by the complainant both as to what occurred and in support of her asserted state of mind that she remained in the room encouraging Ms Elliott to a position of safety to protect her from the accused. The Crown disavowed any intention to rely upon the evidence of misconduct toward Ms Elliott for tendency purposes. 2. The probative value of this evidence is clear. I accept that the evidence is prejudicial to the accused, but it cannot be said to be unfairly prejudicial. The jury will be warned against embarking upon impermissible tendency reasoning, and from finding the accused guilty of the uncharged conduct by way of the charges on the indictment. 3. I announced that I did not accept the argument put on behalf of the accused and allowed the Crown to lead the evidence. The Discharge of a Juror 1. The third matter for determination arose on May 10, 2022 at the beginning of the day when advice was received that another juror tested positive for COVID-19 and could not continue in the trial. The jury was thus reduced to nine. 2. S 22(a) Jury Act 1977 provides, Where in the course of any trial … any member of the jury … is discharged by the court … under Part 7A, the jury shall be considered as remaining for all the purposes of that trial … properly constituted if— (a) in the case of criminal proceedings, the number of its members— (i) is not reduced below 10, (ii) is reduced below 10 but approval in writing is given to the reduced number of jurors by or on behalf of both the person prosecuting for the Crown and the accused or each of the accused, or (iii) is reduced below 10 but not below 8 and the trial has been in progress for at least 2 months, 1. The parties were reminded of this provision whereupon they sought time to take instructions. In due course both advised that they had instructions to consent to the trial continuing with a jury of nine, and they provided their documents recorded in those terms. These were marked respectively MFI 10 (from the Accused) and MFI 11 (from the Crown). 2. I had before then discharged the juror in the exercise of my discretion provided in s 53B(a) Jury Act 1977. There was no other course to be taken regarding the juror in the circumstances. 3. The trial was approaching the conclusion of the Crown case. Although not a long trial, it was appropriate to continue with a jury of nine to its conclusion. The issues to be determined by the jury were not so complex that that it was more desirable to extend the proceedings by recommencing before another jury of twelve. I have not overlooked that the evidence from the complainant before another jury could be presented by way of the recording of her evidence in this trial. 4. I am of the view that the trial should proceed with the remaining jurors, consistent with the wishes expressed by the parties by way of their written consent to this course. Orders 1. My orders are: 1. The accused's application to exclude from the interview in which he participated with the police questions and answers 404 to 407 is refused. 2. The Crown may adduce evidence from Shaelene Elliott evidence of the representations set forth in paragraph [72] of her statement MFI 7. 3. Upon the discharge of the third juror and with the consent of the accused and the Crown provided in writing the trial shall continue with nine jurors. ********** Amendments 26 May 2022 - Change from restricted to no restriction 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. Decision last updated: 26 May 2022