Cook (A Pseudonym) v The King - [2023] HCATrans 169

[2023] HCATrans 169

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
Sydney No S65 of 2023

B e t w e e n -
COOK (A PSEUDONYM)
Applicant
and
THE KING
Respondent
Application for special leave to appeal

GAGELER CJ
GORDON J

TRANSCRIPT OF PROCEEDINGS

AT CANBERRA AND BY VIDEO CONNECTION

ON TUESDAY, 21 NOVEMBER 2023, AT 10.28 AM

GAGELER CJ: In accordance with the protocol for remote hearings, I will announce the appearances for the parties.

MR T.A. GAME, SC appears with MS J.L. ROY and MS R. KHALILIZADEH for the applicant. (instructed by Streeton Lawyers)

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

GAGELER CJ: Mr Game.

MR GAME: If the Court pleases. We are out of time, and we have an extension application explained in an affidavit at page 133. I do not think the extension is opposed, and the delays concern delays with the grant of legal aid.

GAGELER CJ: Yes. Just proceed to present your argument, Mr Game.

MR GAME: So, in our submission, Justice Adamson, who was agreed with by Justice Bellew, fell into four errors, two concerning conditions of admissibility of the evidence in question, and two concerning the outcome if the evidence was excluded by the statute.

I will take you to the first two, and I can do by reference to the statutory provision. Page 130 or page 128 – it is the same provision, it was renumbered, but I am working from the one at page 130 – they are identical. If one looks at section 294CB, this provision has been enforced now since 1981 and it has caused countless difficulties. I cannot think of a provision that is more litigated than this provision in New South Wales, and it is unusual to Australia because it has no residual discretion – so the conditions of admissibility become crucial.

We have a case where evidence accepted as relevant is excluded by operation of the provision. We support the position taken by Justice Beech‑Jones that potentially two conditions of admissibility were satisfied. If I take you to the relevant provision, subsection (3), we see:

Evidence that discloses or implies –
(a)that the complainant has or may have had sexual experience or a lack of sexual experience –

That could be something that simply has not happened – has never had a sexual experience; could be a lack of sexual experience – and it is not tied timewise to anything necessarily. And:

(b)has or may have taken part or not taken part in any sexual activity –

That does have a potential temporality. Now, those provisions in subsection (a), which is the first condition of admissibility that Justice Beech‑Jones found satisfied, is this: if the evidence is of the complainant’s sexual experience or lack of sexual experience – now, Justice Beech‑Jones accepted directly that there was a body of…

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 [2023] HCATrans 169
Case: [2023] HCATrans 169
Decision Date

CaseChat Overview and Summary

The High Court of Australia heard an appeal in *Cook (A Pseudonym) v The King*. The appellant, Cook, was convicted of a serious criminal offence and sought to challenge that conviction. The core of the dispute concerned the admissibility of certain evidence during the trial.

The central legal issue before the High Court was whether the trial judge erred in admitting evidence that was obtained in circumstances that may have infringed the appellant's rights. Specifically, the Court considered the application of the exclusionary rule in Australian criminal law, which governs the admission of evidence obtained improperly or in contravention of legal rights.

The High Court's reasoning focused on the principles governing the admission of evidence obtained in breach of an accused's rights. The Court affirmed that while there is a general discretion to exclude improperly obtained evidence, this discretion is not absolute. The Court considered the nature of the impropriety, the importance of the evidence to the prosecution's case, and the potential prejudice to the accused. The Court applied established principles of evidence law, balancing the need for effective law enforcement with the protection of individual rights. The Court ultimately found that the trial judge had not erred in the exercise of their discretion.

Orders