R v Goodson [2018] NZHC 2099 (16 August 2018)

Last Updated: 17 July 2020

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IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE

CRI-2017-004-1086 [2018] NZHC 2099

THE QUEEN

v

CARLY JADE GOODSON NYKELL-T HEGOTULE TERRENCE RUDOLPH

Hearing:	13 August 2018
Counsel:	H Steele and N E Copeland for Crown R B Keam for Defendant, C Goodson F P Hogan for Defendant, N Hegotule W Andrews for Defendant, T Rudolph
Judgment:	16 August 2018

PRE-TRIAL RULING (NO 3) OF WHATA J

This judgment was delivered by me on 16 August 2018 at 10.30 am, pursuant to Rule 11.5 of the High Court Rules.

Registrar/Deputy Registrar Date: ...............................

Solicitors: Meredith Connell, Auckland

R v GOODSON [2018] NZHC 2099 [16 August 2018]

• [1] Following my ruling on identification,¹ Mr Steele, properly in my view, submitted that the trial could not proceed with the present jury. Both the Crown and Ms Andrews, for Ms Rudolph, opened to the jury on the basis that Ms Rudolph’s visual identification was not in issue. Most significantly, Ms Rudolph was placed in the motel room where the offending is alleged to have occurred.

• [2] With the benefit of the recent interrogation of the identification evidence, I accept that the trial should not have opened on that basis, particularly in the absence of Ms Rudolph who is not available to give instructions.

• [3] It is unnecessary to dwell on the background circumstances leading to this outcome, save to say that a material aspect of the identification evidence, namely, that the complainant was only “50% sure” of the identification, had not been brought to the Court’s attention until after the opening submissions.

• [4] Mr Steele, again quite properly in my view, accepted that the trial, if recommenced, should proceed only against Ms Goodson and Mr Hegotule, assuming Ms Rudolph remains absent. The decision to continue to trial in her absence was made on the assumption that identification of Ms Rudolph was not in issue and that the only trial issues were whether Ms Rudolph participated in the offending alleged at charges 1 – 4. That, plainly, is no longer a sustainable starting point for trial in the absence of express instructions from Ms Rudolph on what is a central issue. For my part, and in agreement with counsel, this provides a sufficient basis for severance as I am not at all satisfied, on the information available to me, that it is in the interests of justice to proceed to trial in Ms Rudolph’s absence, given that clear and substantive issue.

• [5] Finally, Mr Hogan submitted that simple severance is sufficient, rather than aborting the trial. He was concerned that Mr Hegotule would lose the benefit of the present jury and is concerned that a fresh process may not result in a similarly balanced jury, favourable to Mr Hegotule. I accept this is a relevant matter to be weighed. However, I think there is force in both Mr Steele’s and Mr Keam’s submission that Ms Rudolph’s late withdrawal, against a backdrop of openings where it is admitted

¹ R v Goodson [2018] NZHC 2096.

that she was in fact present, could cause unnecessary confusion and distraction from the core task of the jury.

• [6] On that basis, I have resolved to abort the present trial and to sever Ms Rudolph from a new trial, which will be set down tomorrow with the remaining two defendants.