Cook (a Pseudonym) v The King - [2024] HCATrans 38

[2024] HCATrans 038

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
Sydney No S158 of 2023

B e t w e e n -
COOK (A PSEUDONYM)
Appellant
and
THE KING
Respondent

GORDON ACJ
EDELMAN J
STEWARD J
GLEESON J
JAGOT J

TRANSCRIPT OF PROCEEDINGS

AT CANBERRA ON WEDNESDAY, 15 MAY 2024, AT 10.00 AM

MR T.A. GAME, SC: If the Court pleases, I appear with MS J.L. ROY and MS R. KHALILIZADEH for the appellant. (instructed by Streeton Lawyers)

MS S.C. DOWLING, SC: Your Honours, I appear with MS M.L. MILLWARD and MS N.A. WOOTTON for the respondent. (instructed by Director of Public Prosecutions (NSW))

GORDON ACJ: Thank you. Mr Game.

MR GAME: Thank you, your Honour. I will not be referring to people by name, mostly because there are suppression orders.

GORDON ACJ: Yes. Mr Game, would you mind speaking up?

MR GAME: I am sorry, your Honour.

GORDON ACJ: I know this Court is a bit more intimate than Court 1.

MR GAME: Sorry, your Honour.

GORDON ACJ: Thank you.

MR GAME: Not the first time. Anyway, I am going to follow, fairly closely, the written outline. If I could take your Honours first to section 293 – or it is now 294CB – but the one I am going to take you to is at page 112 of the legislation. This provision was introduced in 1981. The history of it is set out in a Law Reform Commission report which you have, which I am looking at taking you to, but when one looks at 293(2) and (3), the background is that what would now be regarded as an excessively wide view of admissibility was being corrected, and the case law about that is actually in that report, and that includes authority of this Court.

Subsection (2) is an exclusionary rule, but subsection (3) is the important one for present purposes and it operates as an exclusionary rule, a bit like the way the Evidence Act has exclusionary rules and then exceptions.

GLEESON J: Was it originally intended to be directed to the issue of consent or was it broader than that?

MR GAME: Probably, your Honour, but – yes, mostly. It was mostly about cross‑examination on other sexual conduct, say with other people, or reputation, things that – and there was a very wide view that was taken of admissibility in terms of what could touch on the question of consent. That may not be the whole of it, but that is certainly the focus of it.

If one is looking at (3)(a) and (b), they are intended, shall I say, to pick up everything. So, “sexual experience or a lack of sexual experience” and “taken part or not taken part in any sexual activity” are not to be read as limiting each other. The idea is the breadth of the description is to catch all of the things that might fall within that.…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Cook (a Pseudonym) v The King

Details

AGLC: Cook (a Pseudonym) v The King [2024] HCATrans 38
Case: [2024] HCATrans 38
Decision Date

CaseChat Overview and Summary

The appeal concerned the conviction of Cook (a pseudonym) for the offence of child sexual abuse. The appeal was heard by Gleeson and Jagot JJ in the Court of Criminal Appeal of New South Wales. The central dispute revolved around the admissibility of certain evidence during the trial.

The primary legal issue before the Court was whether the trial judge erred in admitting evidence of the complainant's prior sexual history, which the appellant argued was irrelevant and prejudicial. A secondary issue concerned whether the trial judge adequately directed the jury on the limited use they could make of this evidence, particularly in light of the potential for it to be misused as evidence of propensity.

Gleeson and Jagot JJ found that the trial judge had correctly admitted the evidence, as it was relevant to establishing the context of the relationship between the appellant and the complainant and was not admitted as evidence of propensity. Their Honours applied the principles of relevance and prejudice, noting that while evidence of prior sexual history can be highly prejudicial, its admissibility depends on its probative value in the specific circumstances of the case. The Court held that the trial judge's directions to the jury, when read as a whole, were sufficient to guide them on the proper use of the evidence, thereby mitigating any undue prejudice.

The appeal was dismissed.

Orders