District Court New South Wales Medium Neutral Citation: R v Goodwin (No. 3) [2022] NSWDC 167 Hearing dates: 12 May 2022 Date of orders: 12 May 2022 Decision date: 13 May 2022 Jurisdiction: Criminal Before: Bennett SC DCJ Decision: (1) The trial is adjourned to resume on Monday, May 23, 2022 (2) The evidence remaining in the Crown case is to be presented on that occasion, with addresses to follow, after which I shall forthwith sum up the trial to the jury Catchwords: CRIMINAL PROCEDURE — Trial — Adjournment Legislation Cited: Crimes Act 1900 Evidence (Audio and Audio Visual Links) Act 1998 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 APPLICATION TO ADJOURN THE TRIAL Introduction 1. Tristan Goodwin was presented for trial on Tuesday, May 3, 2022 upon an indictment containing 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 1. On May 6, 2022 a juror was discharged after he failed to submit to a test for the COVID-19 virus, and thereafter advanced an implausible explanation for not wanting to forthwith continue as juror in the trial, thus demonstrating unwillingness to continue, consistent with what I was told by the jury manager that he was disruptive during the morning as steps were taken to have him submit to further tests. I was also informed that after leaving court the day before he went to other activities, did not reach his bed until 1.30 am, and was proposing to engage upon the same pattern over the duration of the trial. I found that his ability to perform the functions of juror were severely compromised by his attitude and in the exercise of the discretion provided by s 53B(c) and s 53(d), Jury Act 1977, I discharged the juror from further service. I delivered a judgement ex tempore with reasons for this decision. 2. On May 9, 2022 I discharged a further juror who tested positive for the COVID-19 virus. I delivered a judgement ex tempore with reasons for this decision. 3. On May 10, 2022 I discharged another juror who tested positive for the COVID-19 virus and incorporated my reasons in a judgement dealing with this and other applications agitated during the trial. 4. On May 11, 2022 the accused's counsel tested positive for the virus and immediately left the Downing Centre to return home from where he appeared via AVL. Discussion followed in pursuit of a course that would allow the trial to continue including the option of counsel appearing remotely for the limited cross examination of the remaining witness, after the interview in which the accused participated was played to the jury. The Crown took the position that it would be necessary to make an application to the court for counsel to address the jury through this medium pursuant to s 5B Evidence (Audio and Audio Visual Links) Act 1998. 5. The section provides, (1) Subject to any applicable rules of court, subsection (2A) and section 5BAA, a NSW court may, either on its own motion in, or on the application of a party to, a proceeding before the court, direct that a person (whether or not a party to the proceeding) give evidence or make a submission to the court by audio link or audio visual link from any place within or outside New South Wales, including a place outside Australia, other than the courtroom or other place at which the court is sitting. (2) The court must not make such a direction if— (a) the necessary facilities are unavailable or cannot reasonably be made available, or (b) the court is satisfied that the evidence or submission can more conveniently be given or made in the courtroom or other place at which the court is sitting, or (c) the court is satisfied that the direction would be unfair to any party to the proceeding, or (d) the court is satisfied that the person in respect of whom the direction is sought will not give evidence or make the submission. (2A) A court must not make a direction under this Part in relation to the giving of evidence or making of a submission by audio visual link by any accused detainee in any criminal proceeding in relation to the detainee concerning an offence alleged to have been committed by the detainee. However, this subsection does not prevent the making of such a direction in relation to an accused detainee in any other proceeding to which this Part applies. (3) In a proceeding in which a party opposes the making of a direction for the giving of evidence or making of a submission to the court by audio link or audio visual link from any place within New South Wales other than the courtroom or other place where the court is sitting, the court must not make the direction unless the party making the application satisfies the court that it is in the interests of the administration of justice for the court to do so. 1. The Crown took instructions and prior to the luncheon adjournment agreed to file an application for the appearance of counsel through this medium, including for the purposes of addresses. The jury when informed of the difficulty presented the option of both advocates appearing in this manner. 2. Over the luncheon adjournment the Crown announced that it would not file an application. Counsel announced that the accused would oppose the continuation of the trial in this fashion. 3. The construction of this provision was seen to be complex, for although a court could by force of sub-section (1) of its own motion give a direction for the matter to proceed in the fashion proposed, the terms used in sub-section (3) suggested, upon the Crown submission, that there was needed an application by a party who had the burden of showing that if it was opposed it is in the interests of the administration of justice for the court to make a direction. 4. Resolution of the question thus raised was unnecessary in light of what followed. The Application 1. When the jury were informed of the difficulty arising from counsel's positive test they were told that there was the option of an appearance via AVL but that it was not desirable for one advocate to appear in that way and the other to be in court, lest an imbalance be created, in this instance to the disadvantage of the accused. Counsel would be free of the isolation period by Wednesday, May 18, 2022 and the trial could resume then, subject to any insurmountable difficulties that might create. The jury were given time to consider the effect of the delay and returned with a note marked for identification 14 advising that the three days from May 18 were not available to one of their number, that they were prepared to continue with eight jurors on that day if it was appropriate, and that all nine were willing to return on Monday, May 23 to continue with the trial, all wishing to see the matter through to finality. They suggested that both advocates could appear via AVL forthwith so that the Crown and the defence were equally impacted. 2. The accused's counsel complained of developing symptoms which he feared would render him incapable of properly representing the accused in any event. He thereupon sought adjournment of the trial until May 23, 2022, and if this was refused, that the jury be discharged. 3. The Crown did not advance any submission in support of either option. Consideration 1. There is a transcript of the evidence led so far in the trial. The trial has not been lengthy, and the evidence is not complex. There remains in the Crown case the presentation of the recorded interview in which the accused participated with the police, with limited cross examination of the officer in charge, to be followed by addresses and the summing up. The accused's solicitor advised that there would be no evidence adduced by or on behalf of the accused. 2. I see no risk of injustice to the accused to the trial continuing May 23, 2022 as proposed by counsel for the accused, consistent with the suggestion offered by the jury. The Crown has not made submissions against this course and indicated that it would provide in writing directions it would seek from the court. The accused's solicitor undertook to have counsel do the same. Orders 1. My orders are: 1. The trial is adjourned to resume on Monday, May 23, 2022. 2. The evidence remaining in the Crown case is to be presented on that occasion, with addresses to follow, after which I shall forthwith sum up the trial to the jury. ********** 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