Citation: R v Goodwin (No. 2) [2022] NSWDC 153
Court: District Court of New South Wales
Date: 11 May 2022
Judge: Bennett SC DCJ
Background
The accused stood trial on four counts of sexual offences against a single complainant, alleged to have occurred on 10 March 2021 at Schofields. The counts included one charge of intentional sexual touching (s 61KC(a) Crimes Act 1900) and three charges of sexual intercourse without consent (s 61I Crimes Act 1900). The accused admitted the sexual encounter in respect of counts one to three but denied the conduct alleged in count four and maintained throughout that the complainant was consenting.
Three discrete evidentiary and procedural questions arose during the trial. Two concerned the admissibility of specific evidence: a portion of the accused's police interview, and proposed evidence from a companion of the complainant (Ms Elliott) relating to uncharged conduct by the accused toward her. The third concerned whether the trial could continue after a juror was discharged, reducing the jury from ten to nine members.
Legal Issues
- Whether questions and answers 404 to 447 from the accused's police interview should be excluded, on the basis that they amounted to mere speculation about the complainant's state of mind rather than evidence of the accused's own mental state
- Whether evidence from Ms Elliott describing alleged uncharged sexual conduct by the accused toward her should be excluded under s 137 of the Evidence Act 1995 on the basis of unfair prejudice, including a risk of tendency reasoning by the jury
- Whether the trial could continue with nine jurors following the discharge of a third juror, pursuant to the Jury Act 1977
Decision
Police interview excerpt: The court refused the application to exclude the challenged questions and answers. The contested portion of the interview concerned the accused's perception of why the complainant and Ms Elliott had accompanied him home and his account of the complainant's conduct. Bennett SC DCJ held that these responses were plainly relevant to the accused's state of mind regarding consent. Under s 61HE of the Crimes Act 1900, the Crown must establish beyond reasonable doubt that the accused knew the complainant was not consenting, which includes proof that he had no reasonable grounds for believing she consented. The impugned answers bore directly on that question. The court also rejected the criticism that question 441 was improperly framed, finding it was a reasonable enquiry into the accused's asserted perception of events. Because the challenged answers were to remain, the preceding questions and answers were also retained to provide proper context.
Ms Elliott's evidence of uncharged conduct: The court permitted the Crown to lead evidence from Ms Elliott that the accused had touched her breast area and attempted to unbutton her pants during the same incident, conduct she says she rebuffed. The accused's objection rested on the risk that the jury might engage in impermissible tendency reasoning. The court was not persuaded by this submission. The evidence was relevant to the contested issues in the trial, and the court found that the risk of unfair prejudice under s 137 of the Evidence Act 1995 did not outweigh its probative value sufficiently to warrant exclusion.
Discharge of juror and continuation with nine: The trial had been running with a jury of ten following an earlier discharge. When a third juror was discharged under s 53B(a) of the Jury Act 1977, the jury dropped to nine. The court found no other course was available in the circumstances. Under s 22(a) of the Jury Act 1977, a jury reduced below ten may continue where both the Crown and the accused consent in writing. Both parties provided that written consent. The court determined it was appropriate to proceed to verdict with nine jurors, noting the trial was nearing the conclusion of the Crown case, the issues were not so complex as to require a retrial, and recommencing before a fresh jury of twelve would cause unnecessary delay.
Orders Made
- The accused's application to exclude questions and answers 404 to 447 from his police interview was refused.
- The Crown was permitted to adduce evidence from Ms Elliott of the conduct described in paragraph 72 of her statement.
- Upon the discharge of the third juror, and with the written consent of both the accused and the Crown, the trial was to continue with nine jurors.
Key Takeaways
- Under s 61HE of the Crimes Act 1900, an accused's stated beliefs and perceptions regarding a complainant's consent are relevant to the knowledge element of a sexual assault charge, and police interview responses going to those beliefs are admissible where they illuminate the accused's state of mind.
- A question put to an accused in a police interview about his perception of another person's purposes is not necessarily objectionable simply because it might elicit speculation; context and relevance to the accused's mental state are the determining considerations.
- Evidence of uncharged sexual conduct toward a third party is not automatically excluded under s 137 of the Evidence Act 1995; the court must weigh probative value against the risk of unfair prejudice, including any tendency reasoning risk, on the particular facts.
- Where a jury falls below ten members during a criminal trial, s 22(a) of the Jury Act 1977 permits continuation with fewer than ten jurors if both the Crown and the accused provide written consent, provided the number does not fall below eight.
- In deciding whether to continue with a reduced jury rather than discharge and restart, the District Court took into account the stage of proceedings, the complexity of the issues, and the interests of all parties, including the possibility that a complainant's evidence could be replayed to a new jury by recording.
Legislation and Cases Referenced
Legislation:
- Crimes Act 1900 (NSW), ss 61I, 61KC(a), 61HE
- Evidence Act 1995 (NSW), s 137
- Jury Act 1977 (NSW), ss 22(a), 53B(a)
Cases cited: No cases were cited in the judgment.