R v Goodwin

[2022] NSWDC 141

District Court

New South Wales

• Amendment notes

Medium Neutral Citation:

R v Goodwin [2022] NSWDC 141

Hearing dates:

03 May 2022

Date of orders:

03 May 2022

Decision date:

03 May 2022

Jurisdiction:

Criminal

Before:

Bennett SC DCJ

Decision:

The Crown may adduce the evidence of the recording and provide for the assistance of the jury a transcript for use as an aide memoire

Catchwords:

CRIMINAL PROCEDURE — Trial — Voir dire

JUDGEMENTS AND ORDERS — Ruling on evidence in advance of or in course of trial

Legislation Cited:

Crimes Act 1900

Evidence Act 1995

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 exclude evidence pursuant to s 135 evidence act 1995

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

The Application

2. Part of the evidence upon which the Crown relies as complaint evidence is a recording of 2 minutes 44 seconds duration, in which it alleges that the voices of the complainant, a witness SE, and the accused were captured. A transcript together with the recording was marked Exhibit A on the voir dire after the accused was arraigned.

3. The Crown would use the transcript as an aide memoire to assist the jury when the recording is before them. The accused consents to the tender of the transcript but for one portion in which the following appears:

Female voice said to the be complainant:

Nah, he just raped me.

Female voice said to the witness SE:

Come on, let’s get home and get changed, …

4. The first utterance is preceded by the female voice said to be the witness SE uttering,

Fuck. Are you ok?

5. The accused’s counsel submitted that the challenged words cannot be heard on the recording, contrary to the Crown’s assertion that they can, leaving the jury to decide what if anything was said. If the words cannot be heard then there is no evidence of them by way of this recording available to the Crown. S 135 Evidence Act 1995 is relied upon for the exclusion of the challenged portion of the transcript as an aide memoire. Counsel submitted that there was a risk the jury could erroneously conclude that these words were captured on the recording, influenced by the transcript.

6. The recording was played. Although the words were whispered by each of the speakers my perception is that they could be heard.

7. The Crown anticipates that it would also lead evidence from the Complainant and SE independently of what was said in the recording of this exchange, and if the evidence is given as anticipated, with the recording it would provide compelling evidence that the complaint was made in the terms of the transcript, and as one can hear listening to the transcript.

8. S 135 Evidence Act 1995 provides:

The court may refuse to admit evidence if its probative value is substantially outweighed by the danger that the evidence might—

(a) be unfairly prejudicial to a party, or

(b) be misleading or confusing, or

(c) cause or result in undue waste of time.

9. Although the transcript is not itself evidence, I accept that it is appropriate to argue upon the basis upon which it is sought to engage this provision that the probative value of the evidence of the recording, if the utterances cannot be heard with sufficient clarity, is substantially outweighed by the danger that the transcript purporting to be a true representation of what was said might be misleading or confusing, and likely to prompt the jury to fill in what they are unable to hear.

10. The probative value of the evidence as complaint evidence is unchallenged.

11. I am not persuaded that the probative value of the challenged portion of the recording and transcript is substantially outweighed by the danger that the recording and transcript might be misleading or confusing. I find that the transcript is of the words heard on the recording.

12. It will be necessary, as in all such cases, to direct the jury clearly that the evidence is what is contained on the recording, and that the transcript is no more than a document to assist them as they listen to the recording. If what they hear does not appear in the transcript, then those portions of the transcript they will put to one side and reach their decisions upon that which they hear in the recording.

Order

13. The Crown may adduce the evidence of the recording and provide for the assistance of the jury a transcript for use as an aide memoire.

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Amendments

26 May 2022 - Change from restricted to no restriction

Decision last updated: 26 May 2022