Citation: R v Goodwin [2022] NSWDC 141
Court: District Court of New South Wales
Date: 3 May 2022
Judge: Bennett SC DCJ
Background
The accused was presented for trial on four counts of sexual offences alleged to have occurred on 10 March 2021 at Schofields, NSW. Three counts alleged sexual intercourse without consent under s 61I of the Crimes Act 1900, and one count alleged intentional sexual touching without consent under s 61KC(a). All counts related to a single complainant.
Before the trial commenced, a voir dire (a preliminary hearing to determine the admissibility of evidence) was conducted regarding a short audio recording of approximately two minutes and forty-four seconds. The Crown sought to tender the recording as complaint evidence, together with a transcript to assist the jury as an aide memoire.
The accused consented to the transcript generally, but challenged one specific portion. That portion recorded the complainant's voice saying "Nah, he just raped me," preceded by another witness saying "Fuck. Are you ok?" and followed by words suggesting the two should leave and get changed. Defence counsel argued those words could not be heard clearly on the recording, and that allowing the transcript to go to the jury in its current form risked misleading them into accepting words they could not actually hear.
Legal Issues
- Whether the challenged portion of the transcript should be excluded under s 135 of the Evidence Act 1995 on the basis that its probative value was substantially outweighed by a danger that the evidence would be misleading or confusing to the jury.
- Whether the words attributed to the complainant in the disputed transcript could, in fact, be heard on the recording.
Decision
Section 135 of the Evidence Act 1995 permits a court to refuse to admit evidence where its probative value is substantially outweighed by the danger that it might be unfairly prejudicial, misleading or confusing, or cause undue waste of time. The accused's counsel framed the argument on the basis that, if the words could not be heard clearly enough, the transcript purporting to represent them would mislead or confuse the jury by prompting them to "fill in" what they were unable to hear.
His Honour acknowledged the theoretical force of that argument, noting it was appropriate to engage the s 135 framework on that basis even though the transcript is not itself evidence. The probative value of the evidence as complaint evidence was not in dispute.
After listening to the recording, Bennett SC DCJ found that the words in the challenged portion could be heard, albeit they were whispered. On that factual finding, the precondition for the s 135 argument did not arise. His Honour was not satisfied that the probative value of the recording and transcript was substantially outweighed by any danger of the jury being misled or confused.
His Honour indicated that, as is standard practice in such cases, the jury would be directed clearly that the recording itself is the evidence, and that the transcript is only an aid to listening. Where there is a discrepancy between what the jury hears and what appears in the transcript, they are to rely on what they hear and set aside the relevant portion of the transcript.
Orders Made
- The Crown may adduce the evidence of the recording and provide the jury with a transcript for use as an aide memoire.
Key Takeaways
- The District Court confirmed that a transcript used only as an aide memoire can still be the subject of a s 135 application where there is a real risk the jury may be misled into accepting as heard words that are inaudible on the underlying recording.
- The threshold question under this line of argument is a factual one: whether the disputed words can actually be heard on the recording. If they can, the s 135 challenge on grounds of misleading or confusing evidence will ordinarily not be sustained.
- Under s 135 of the Evidence Act 1995, the probative value of evidence must be substantially outweighed by the identified danger before exclusion is warranted. A finding that words are audible on a recording resolves the factual foundation of the challenge.
- Standard jury directions remain essential where transcripts accompany audio recordings: the jury must be clearly instructed that the recording is the evidence, and that any discrepancy between what they hear and what appears in the transcript must be resolved in favour of what they hear.
- No error was established in admitting the recording and transcript together, provided appropriate directions accompany the evidence at trial.
Legislation and Cases Referenced
Legislation:
- Crimes Act 1900 (NSW), ss 61I, 61KC(a)
- Evidence Act 1995 (NSW), s 135
Cases cited: No cases were cited in the judgment.