Cook (a pseudonym) v The King

Case [2024] HCA 26

HIGH COURT OF AUSTRALIA

GORDON A-CJ,

EDELMAN, STEWARD, GLEESON AND JAGOT JJ

COOK (A PSEUDONYM)  APPELLANT

AND

THE KING  RESPONDENT

Cook (a pseudonym) v The King

[2024] HCA 26

Date of Hearing: 15 May 2024

Date of Judgment: 7 August 2024

S158/2023

ORDER

1.Appeal allowed in part.

2.Set aside order 3 made by the New South Wales Court of Criminal Appeal on 15 December 2022 and, in its place, order that the appeal be allowed on the basis of ground 1 and in part on the basis of ground 3.

On appeal from the Supreme Court of New South Wales

Representation

T A Game SC and J L Roy with R Khalilizadeh for the appellant (instructed by Streeton Lawyers)

S C Dowling SC with M L Millward and N A Wootton for the respondent (instructed by Director of Public Prosecutions (NSW))

Notice:  This copy of the Court's Reasons for Judgment is subject to formal revision prior to publication in the Commonwealth Law Reports.

CATCHWORDS

Cook (a pseudonym) v The King

Criminal law – Sexual offences – Appeal against conviction – Admissibility of evidence – Where appellant convicted of sexual offences against child complainant – Where complainant previously sexually assaulted by another person – Where complainant allegedly disclosed previous sexual assaults in detail to appellant – Where appellant sought to call evidence and cross-examine complainant regarding previous sexual assaults – Where s 293(3) of Criminal Procedure Act 1986 (NSW) prohibits admission of evidence of complainant's sexual experience or sexual activity – Whether evidence admissible under exception to s 293(3) contained in s 293(4)(a) or (b) – Whether evidence formed part of connected set of circumstances in which alleged offending by appellant occurred – Whether evidence related to relationship between appellant and complainant – Whether jury misled by description of previous sexual assaults as "physical assaults" – Whether acquittal of appellant required to avoid new trial that would be unfair to appellant because such evidence inadmissible.

Words and phrases – "characterisation of sexual experience", "connected set of circumstances in which the alleged sexual assault occurred", "evidence of sexual activity", "evidence of sexual experience", "forensic disadvantage", "miscarriage of justice", "permanent stay", "power to decide whether to acquit", "probative value", "relates to a relationship", "relationship between the accused person and the complainant", "relationship of trust and confidence", "sexual activity", "sexual experience", "unfair trial".

Criminal Appeal Act 1912 (NSW), ss 6, 8.

Criminal Procedure Act 1986 (NSW), ss 293(3), 293(4)(a), 293(4)(b), 294CB.

Evidence Act 1995 (NSW), ss 55, 56.

GORDON A-CJ, EDELMAN, STEWARD AND GLEESON JJ.  

Introduction

  1. In 2019, after a trial before a judge and jury in the District Court of New South Wales, the appellant was convicted of 17 sexual offences against the complainant during various periods between 1 January 2011 and 31 December 2014. At the time of the offences, the complainant was aged between 9 and 11 years old and was living in New South Wales with her aunt ("the New South Wales aunt") and the appellant (who was…

Continue reading Cook (a pseudonym) v The King

Sign in free to access the full text

Details
AGLC
Cook (a pseudonym) v The King [2024] HCA 26
Case
[2024] HCA 26
Decision Date

CaseChat Overview and Summary

The High Court of Australia heard an appeal by a person, referred to pseudonymously as Cook, against their conviction for sexual offences against a child complainant. The central dispute concerned the admissibility of evidence relating to the complainant's prior sexual assaults by another individual. Cook sought to introduce this evidence and cross-examine the complainant about it, arguing it was relevant to the circumstances of the alleged offending and the relationship between Cook and the complainant.

The legal issues before the High Court were whether evidence of the complainant's prior sexual assaults was admissible under exceptions to section 293(3) of the *Criminal Procedure Act 1986* (NSW). Specifically, the court had to determine if the evidence fell within the exception in section 293(4)(a), which pertains to evidence forming part of a connected set of circumstances in which the alleged offending occurred, or section 293(4)(b), which relates to evidence concerning a relationship between the accused and the complainant. The court also considered whether the jury had been misled by the description of the prior assaults and whether an acquittal was necessary to avoid an unfair trial due to the inadmissibility of such evidence.

The High Court allowed the appeal in part. It reasoned that the exception in section 293(4)(a) did not apply to the evidence of the prior sexual assaults. However, the court indicated that the exception in section 293(4)(b) might apply at a retrial, subject to a consideration of evidence not before the court. The court found that any forensic disadvantage to the appellant from the inability to detail the prior assaults did not warrant an acquittal, but rather a potential retrial.

The High Court ordered that the appeal be allowed in part, setting aside an order of the New South Wales Court of Criminal Appeal and substituting an order that the appeal to that court be allowed on the basis of one ground and in part on another.

Orders

Orders of the court

1. Appeal allowed in part.

2. Set aside order 3 made by the New South Wales Court of Criminal Appeal on 15 December 2022 and, in its place, order that the appeal be allowed on the basis of ground 1 and in part on the basis of ground 3.

Background

Background to the litigation

For the reasons below, the appeal should be allowed in part. The exception in s 293(4)(a) does not apply but, subject to a consideration of evidence that is not before this Court, the exception in s 293(4)(b) might apply at a retrial of the appellant. The appellant's alternative grounds of appeal should not be accepted. Facts and backgroundThe background facts Prior to 2008, the complainant had lived in different homes. At a "[v]ery, very young" age she was moved from living with her father and his girlfriend to be placed into foster care. On 1 January 2008, the complainant moved to live with the Queensland aunt and the Queensland offender, where she lived until 17 June 2009. During that period, while the complainant was six to seven years old, the Queensland offender committed the Queensland offences. In June 2009, the complainant told her stepmother about the sexual offences committed by the Queensland offender. Initially, the complainant's stepmother and the complainant's father did not believe the complainant. The New South Wales aunt and her then husband, the appellant, later assisted to persuade the complainant's father that the complainant was telling the truth. In July 2009, the complainant's stepmother and the complainant's father arranged for the complainant to move back to New South Wales to live with the New South Wales aunt and the appellant. In September 2009, the New South Wales aunt became the complainant's legal guardian. On 28 February 2010, the complainant disclosed to her father and stepmother further details of the Queensland conduct. On 21 July 2010, the appellant made a police statement in support of the complainant's complaint against the Queensland offender in which he said the following:"After she came to live with us, whenever [the complainant] and I would go for a drive to anywhere I would tell her she could sit in the front of the car. [The complainant] would always refuse and would sit in the back while no-one would sit in the front. After about 4 or 5 times of that occurring I pressed [the complainant] that she could sit in the front. [The complainant] said to me, 'You are not going to do what [the Queensland offender] did to me, are you?'" This disclosure to the appellant occurred more than a year before the start of the first period of alleged offending by the appellant. In April 2011, a committal hearing was held for the trial of the Queensland offender. The complainant gave evidence at the committal hearing and the Queensland offender was committed for trial. On 18 April 2012, the complainant gave pre-recorded evidence in Queensland for the trial of the Queensland offender. On 12 November 2012, the Queensland offender was convicted of four counts of rape and seven counts of indecent treatment of a child under the age of 12. Following a successful appeal by the Queensland offender, on 1 October 2013 the complainant gave pre-recorded evidence in Queensland for a second time. No retrial took place because the prosecution accepted a plea of guilty by the Queensland offender to four counts of indecent treatment of a child under 12 years in his care.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

JAGOT J (dissent)
It is unsurprising that at the voir dire before the trial judge the appellant disclaimed any intention of relying upon any of the "fine detail of the sexual offending" in Queensland.[45] Any forensic disadvantage to the appellant in his inability to descend into any detail of the Queensland conduct could not amount to such a degree of unfairness in any retrial as to require an order that the appellant be acquitted rather than an order for a retrial. [45]R v Cook (a pseudonym) (2019) 32 DCLR(NSW) 9 at 10 [11]. See also Cook (a pseudonym) v The King [2022] NSWCCA 282 at [93].Conclusion The appeal should be allowed in part. Orders should be made to allow the appeal in part, quash order 3 of the orders of the Court of Criminal Appeal and, in its place, order and declare that the appeal to that Court be allowed on the basis of ground 1 and, in part, ground 3. The relevant circumstances in which this appeal is to be determined are set out in the joint reasons of Gordon A‑CJ, Edelman, Steward and Gleeson JJ ("the majority"). In contrast to the conclusion of the majority, in which grounds 2 and 3 of the appeal are dismissed but ground 1 is allowed in part, I would dismiss all grounds of the appeal for the following reasons.Ground 1 – s 293 of the Criminal Procedure Act By ground 1 it is contended for the appellant ("the accused") that the Court of Criminal Appeal of New South Wales misconstrued s 293(4) of the Criminal Procedure Act 1986 (NSW).[46] As explained below, no such misconstruction is apparent. [46]Now renumbered as s 294CB. The relevant provision, s 293, includes the following parts:"(1) This section applies to proceedings in respect of a prescribed sexual offence.(2) Evidence relating to the sexual reputation of the complainant is inadmissible.(3) Evidence that discloses or implies:(a) that the complainant has or may have had sexual experience or a lack of sexual experience, or(b) has or may have taken part or not taken part in any sexual activity,is inadmissible.(4) Subsection (3) does not apply:(a) if the evidence:(i) is of the complainant's sexual experience or lack of sexual experience, or of sexual activity or lack of sexual activity taken part in by the complainant, at or about the time of the commission of the alleged prescribed sexual offence, and(ii) is of events that are alleged to form part of a connected set of circumstances in which the alleged prescribed sexual offence was committed,(b)if the evidence relates to a relationship that was existing or recent at the time of the commission of the alleged prescribed sexual offence, being a relationship between the accused person and the complainant,...and if the probative value of the evidence outweighs any distress, humiliation or embarrassment that the complainant might suffer as a result of its admission."General observations Section 293 applies to proceedings in respect of a prescribed sexual offence (s 293(1)) and provides that evidence relating to the sexual reputation of the complainant (s 293(2)) or evidence that discloses or implies that the complainant has or may have had sexual experience or a lack of sexual experience or has or may have taken part or not taken part in any sexual activity (s 293(3)(a) and (b)) is inadmissible. Accordingly, the important premise on which s 293 operates is that such evidence would otherwise be admissible.[47] To be admissible, the evidence must be relevant in the proceeding.[48] It is not to be assumed that, merely because evidence is of the kind referred to in s 293(3), it is thereby "evidence that, if it were accepted, could rationally affect (directly or indirectly) the assessment of the probability of the existence of a fact in issue in the proceeding".[49][47]eg, R v Morgan (1993) 30 NSWLR 543 at 551.[48]Evidence Act 1995 (NSW), s 56.[49]Evidence Act 1995 (NSW), s 55(1).

Ratio Decidendi

Legal Principle Established

Established by:

Full text does not contain this section.