Citation: R v Goodwin (No. 3) [2022] NSWDC 167
Court: District Court of New South Wales
Date: 13 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, NSW. The charges included intentional sexual touching without consent and three counts of sexual intercourse without consent, contrary to ss 61KC(a) and 61I of the Crimes Act 1900.
The trial, which began on 3 May 2022, was beset by a series of COVID-19-related disruptions. Over the course of the first week, three jurors were discharged: one for refusing to undergo COVID-19 testing and demonstrating unwillingness to continue as a juror, and two others after returning positive COVID-19 test results. Each discharge was the subject of a separate judgment.
A further complication arose on 11 May 2022 when the accused's counsel tested positive for COVID-19 and left the Downing Centre. The question then became whether the trial could continue, and if so, in what form.
Legal Issues
- Whether the trial could continue with defence counsel appearing remotely via audio visual link (AVL) under s 5B of the Evidence (Audio and Audio Visual Links) Act 1998
- Whether the construction of s 5B required a party's application before the court could direct remote appearances, or whether the court could act on its own motion
- Whether the trial should be adjourned or the jury discharged, following defence counsel's application
Decision
The question of whether the court could, on its own motion, direct counsel to appear by AVL arose from an apparent tension within s 5B of the Evidence (Audio and Audio Visual Links) Act 1998. Subsection (1) permits a court to make such a direction on its own motion, while subsection (3) appears to require a party application when another party opposes the direction. The Crown characterised this construction as complex, but the court did not resolve it, as events overtook the need to do so.
The court's focus shifted to the practical reality facing the trial. The accused's counsel reported developing symptoms that he feared would render him incapable of properly representing the accused. He applied for an adjournment to 23 May 2022, or alternatively for the jury to be discharged. The Crown neither supported nor opposed either course.
The jury itself played a constructive role. When informed of counsel's situation and the possibility of a delay, the jury returned a note indicating that all nine remaining jurors were willing to return on Monday 23 May to complete the trial, with one juror unavailable on the three preceding days. The jury also suggested that both advocates could appear via AVL so neither side was disadvantaged.
Having regard to the transcript of evidence taken so far, the relative brevity and simplicity of the remaining evidence, and the jury's expressed willingness to continue, Bennett SC DCJ found no risk of injustice to the accused in adjourning to 23 May 2022. The application to discharge the jury was refused.
Orders Made
- The trial was adjourned to resume on Monday, 23 May 2022.
- The remaining Crown evidence was to be presented on that date, followed by addresses and an immediate summing-up to the jury.
Key Takeaways
- The District Court adjourned a sexual assault trial, rather than discharging the jury, after defence counsel tested positive for COVID-19 and reported symptoms affecting his capacity to appear.
- A juror's refusal to undergo COVID-19 testing, combined with disruptive behaviour and demonstrated unwillingness to continue, provided grounds for discharge under ss 53B(c) and 53D of the Jury Act 1977.
- Under s 5B of the Evidence (Audio and Audio Visual Links) Act 1998, a potential tension exists between the court's power to act on its own motion under subsection (1) and the apparent requirement for a party application under subsection (3) where another party opposes the direction. The court left this question unresolved on the facts.
- The court treated the imbalance that would arise from one advocate appearing remotely while the other appeared in person as a relevant consideration, particularly where the disadvantage would fall on the accused.
- The jury's own note expressing willingness to return after the delay and to see the matter through to finality was a material factor in the court's conclusion that adjournment, rather than discharge, was appropriate.
Legislation and Cases Referenced
Legislation:
- Crimes Act 1900 (NSW), ss 61I, 61KC(a)
- Evidence (Audio and Audio Visual Links) Act 1998 (NSW), s 5B
- Jury Act 1977 (NSW), ss 53B(c), 53B(d)
Cases: No cases were cited in the judgment.