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

Copyright in the High Court of Australia

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 cases that included cases such as Edwards and GEH – and I do not have time to take you to those at the moment.  He accepted that could be a state of affairs or something – an experience that was possessed at the time of the disclosures.  So, it does not necessarily have to be at any particular time.

Then, because it is something that you have – so if, for example, the person has never had a sexual experience, that may be implied in the prosecution’s case, but it does not mean that it has to occur at a particular time.  It is something that you have at a particular time.  Then we go to subsection (i):

or of sexual activity or lack of sexual activity taken part in by the complainant –

Now, the words “taken part in by the complainant” only apply to those words “sexual activity or lack of sexual activity”, although, in effect – actually, explicitly – Justice Adamson and Justice Bellow conflated them.  Then the next words are “at or about the time”, which will be at about the time of the disclosures.  But “at or about the time” in respect of sexual experience can be a cumulative thing.  So, it can be made to work.  So, you have never had that experience, or you have that experience, is a state of affairs.  It does not have to be a specific thing.  That is demonstrated by, if nothing else, the words “lack of sexual experience”.

GAGELER CJ:   Mr Game, I understand the importance of the question and I understand the strength of your argument.  A difficulty that I have, frankly, is that you are relying on the reasoning in the judgment of Justice Beech‑Jones.  That judgment led his Honour to propose the order for the new trial that was made.  The appeal to this Court, of course, is not from reasons, it is from orders.  How do you get over that hurdle?

MR GAME:   Your Honour, how do I get over that hurdle?  What we are appealing – can I just explain to your Honours the practical problem.

GAGELER CJ:   I understand the practical problem.

MR GAME:   The practical problem, if we go back to trial, is now a ruling and the ruling and the Crown sought, specifically, a ruling which would be binding – and it is binding.  There is a specific provision in the Criminal Procedure Act, and the Crown sought – so we are appealing the judgments of Justices Adamson and Bellew, not the judgment of ‑ ‑ ‑

GORDON J:   Can I ask a question about that, Mr Game.  I had understood from paragraph 3, on application book 116, that you were seeking a different outcome.

MR GAME:   Yes, in one respect.  The different outcome is this – and it is in one respect ‑ ‑ ‑

GORDON J:   So, can I ask two questions.  Are you seeking a different outcome?  Is that different outcome a consequence if you succeeded on your question of statutory construction?

MR GAME:   The different outcome is that the ground – the relevant ground – would have been upheld in respect of the admissibility of the evidence.  But, your Honour, there is a larger consequence, and it works like this.  If we do not succeed on the admissibility point, then what we say is this:  that relevant, potentially exculpatory evidence has been excluded – cannot be led at trial.

GORDON J:   We have two complaints.  You have the exclusion and then you have the false basis upon which it is put to the jury.

MR GAME:   That is right, yes.  So, we say this.  We say that you cannot – we say that Justice Beech‑Jones is dead right for saying that a jury cannot be misled.  And it is misleading because the jury will think that this is not about sexual assault, and that undercuts all of the points about the significance of the material, which we have explained in our written submissions.

Our position is this:  if the evidence is not admissible, then, if one applies what I describe as ordinary fair trial principles, then relevant, potentially exculpatory evidence is excluded, and one cannot get over that.  The appropriate order would be for an order under section 8, that there not be a retrial, but that there be an acquittal.  We are madly arguing in favour of the admission of the evidence, as we did in the court below.  There has never been any dispute about relevance, but we say, if it is relevant, if it is inadmissible, then what do you do?  And the test that was applied against us by Justice Adamson was that it was not unequivocally in our favour.  That is not an appropriate test for wrongful exclusion of relevant exculpatory evidence.

GORDON J:   Did you apply for a section 8 order?

MR GAME:   Yes, we did.  We asked for an acquittal in the court below.  That was, in fact – I will not say it was at the forefront of our argument, but we said – and what we were doing was – and Justice Beech‑Jones accepted, quite early in his judgment, the logic of the thing, but said that the outcome was not accepted.  That is at paragraph 4 on page 70.  So, we seized all of this in our argument in the court below.  We said, this evidence is admissible, and it is plainly admissible.  We can see a way through – and Justice Beech-Jones stepped through why it is admissible.  It is not difficult, we say, to show that Justice Adamson and Justice Bellew got the wrong end of the stick in construing these provisions.

GAGELER CJ:   And so, Mr Game, the end point is a different order from the order made by the Court of Criminal Appeal, is it?

MR GAME:   That is correct, yes.  So, if we are right on the admissibility point, then the ground gets upheld, and this applicant goes back for trial in a position where he has a ruling that the judge fell into error.  So, we go back but there is just one qualification about it.  So, Justice Adamson resolved the questions unfavourably to us on both legs.

Justice Beech‑Jones upheld our complaint about subsection (4)(a), but in respect of (4)(b), he found that the judge fell into error because he got mixed up about which relationship he was talking about, but he said there might need to be more argument about section (4)(b).  So, we got up, shall I say, on both legs with Justice Beech‑Jones.  Well, (b) is qualified because we need – to get up (b) if we needed it.  But (a) – if I could just explain this – is enough, and the reason (a) is enough is this.  In his judgment on (a), his Honour picked up all of the disclosures but, in his judgment on (b), he only picked up the disclosure to the applicant.

GORDON J:   Can I ask a really silly question, Mr Game, and this is me – you have to educate me.  If you get up on your question of construction – i.e., this evidence is admissible – what is the order you would have the Court make to give effect to that?  Does it need to go back to the Court of Appeal for them to look at the evidence afresh?

MR GAME:   It does not need to go back to the Court of Criminal Appeal, so ‑ ‑ ‑

GORDON J:   All right.  Then I need to ask another question.  Where does it go, and what order would you seek?

MR GAME:   We would be up – in the orders, at 112 in the court below, the order would be allow:  the appeal on the basis of grounds 1 and 3, order 5 would stay the same, but order 3 would change.  Now, if we lose on the statutory construction point, then it would be allow the appeal on grounds 1 and 3 but order an acquittal – so that you would order acquittal on our argument.  The reason why you would order – it sounds like a threat because we say we get a bigger outcome if we lose the argument, but it is a way of kind of seizing just how kind of important and central this problem is in a trial such as this.

Many of the cases have been cases about false complaints, but this also has a poignancy about it, the evidence in this case, that – if I describe it as a “vehicle” – makes it quite a good vehicle for considering how these statutory provisions work, and that no cases actually have been taken about the actual construction therein.

GAGELER CJ:   So, Mr Game, what I am hearing is that, on one realistic possibility of the outcome of an appeal to this Court, there would not be a new trial, there would be an acquittal.

MR GAME:   That is right, and that is if you rule against us on both of our admissibility points.  The argument is this.  We say that one is setting – it is said against us ‑ ‑ ‑

GAGELER CJ:   Mr Game, at this point we might hear from Ms Dowling.

MR GAME:   Certainly.

GAGELER CJ:   Thank you.  Ms Dowling.

MS DOWLING:   Your Honours, we say that this argument is wrongly predicated on the assumption that the evidence was, in fact, admissible, which we say on no amount of contortionism on the part of Mr Game can render this evidence admissible under either subsection (a) or subsection (b) of 293(3).  Your Honours are well‑familiar with the purpose of the provision and the narrowness of the exceptions to the prohibition on the admission of sexual evidence.

The applicant’s argument is predicated on the quite erroneous submission that evidence of disclosure of a sexual act, and in this case the disclosure of abuse – the Queensland abuse can be converted into evidence of sexual experience, which then can be argued to be conterminous with the commission of the subject offence, so as to shoehorn it into the temporal limitations of 293(4)(a)(i), which ‑ ‑ ‑

GAGELER CJ:   Ms Dowling, Mr Game, in substance, relies on the reasoning of Justice Beech‑Jones on this point.  What is wrong with that reasoning?

GORDON J:   In particular, what appears at pages 77, really, to 78, I think.

MS DOWLING:   The first thing that is wrong with it, your Honours, is that it elides the disclosure of the event – disclosure of sexual activity, in fact, not even sexual experience – with experience, and in an inappropriate way to confuse those two propositions.  The evidence is going to be admissible under 293(4)(a) if it is evidence of sexual experience:

at or about the time of the commission of the alleged prescribed sexual offence –

That is a strict temporal limitation.  It then, also, has to be evidence:

of events that are alleged to form a part of connected set of circumstances –

It seems to be accepted by Mr Game that a timelapse of 18 months, which is what the timelapse is here, would not satisfy the requirement of “at or about the time” of the offence, and so would fall foul of the temporal restriction in 293(4)(a).

So, to satisfy the temporal restriction in 293(4)(a), the applicant is forced to characterise the disclosure of the Queensland abuse to the applicant as evidence of sexual experience, to argue that that experience is coterminous with the offending and the temporal limitation is capable of being satisfied.  The artificiality in the argument is that it wrongly elides that disclosure of past sexual activity with sexual experience in order to so avoid that temporal restriction.  That is, we say, the flaw in his Honour Justice Beech‑Jones’ reasoning.

At application book 106, your Honours, her Honour Justice Adamson exposes the problem with the approach taken – that is at CCA 114 – and her Honour correctly points out there that the:

sexual activity or sexual experience . . . of itself, is the relevant matter that needs to have been taken part in by the complainant about the time of the commission of the subject offence.

Not the reporting of that experience or activity.  In relation to the temporal requirement, her Honour notes at CCA 115, on application book 106, that there is no basis in this case on which the complainant’s disclosure in 2009 could satisfy the condition of being “at or about the time” of the commission of the prescribed offence, which occurred, at the earliest, in January 2011, which is 18 months later.  I will not trouble you in relation to what is called the “aftermath” of the Queensland offences, which is the investigation and prosecution of those.

On the applicant’s case, your Honours, each time a complainant speaks about any sexual activity in the past, that disclosure would constitute evidence of their sexual experience at or about the time of the disclosure.  If that disclosure is close in time to the charged offences, that would then be capable of satisfying the temporal requirement of 293(4)(a)(i).  We say that is the artificiality in the underlying argument that is supporting it – that is the subject of this leave application.  That argument is also difficult to reconcile with what his Honour Justice Beech‑Jones said in GEH, at paragraph 84, which is extracted at application book 76, your Honours, where his Honour stated that evidence of:

an inconsistent version –

of the charged offence:

would clearly be evidence “of” sexual experience . . . at the time of the alleged offence –

It is clarified by his Honour in this judgment at paragraph 20, application book 76:

that the evidence of the disclosure –

of the charged offence:

is itself evidence of sexual experience acquired at the time of that offence (and not a sexual experience at the time of the disclosure).

That is the nub of the argument here and what is wrong with the entire edifice upon which this special leave application is brought.  The applicant’s approach would have that any disposure of past sexual activity is, in fact, evidence of sexual experience at the time of the making of the disclosure.  This would have a very peculiar consequence that every time a complainant told someone about their past sexual activity, it would constitute sexual experience, and if it were said close in time to a proscribed offence, it would render it admissible, subject to the connected set of circumstances.

That leads to our second complaint about the foundational argument here, which is that the applicant’s case also elides entirely the distinction between sexual activity and sexual experience in the subsection.  Your Honours, if I could just perhaps remind you that the use of the two terms “sexual experience” and “sexual activity” are, we say, directed at the mischief of preventing humiliating cross‑examination that often exploits rape myths on topics such as whether the complainant was a virgin or not, or whether they were generally promiscuous or not, or, as is in this case – and we see this in special leave application paragraph 30 – whether their knowledge of sexual matters was derived from an experience other than the charged offence.

Going back to the allusion of “experience” with “activity”, as I have already said, the effect of the argument is that disclosures made of past sexual activity are said to constitute sexual experience, which renders that statutory distinction between “activity” and “experience” entirely meaningless, and it would give sexual activity no work to do in a case such as this.  In almost every case, your Honours, evidence of sexual activity will be by way of a disclosure by a complainant at a time after the alleged events have occurred.  It will almost always involve an account by the complainant.

Her Honour Justice Adamson at 111 of the judgment, which is application book 105, held that the simple fact of recounting prior sexual activity or experience cannot render that activity or experience contemporaneous with the recounting, so as to avoid the operation of the temporal limitation.  There is also, we say, the insurmountable problem faced by the applicant in this case, that in addition to having real – we say, fundamental – problems with the temporal requirement, the applicant is required to convince your Honours that the evidence is of events that are alleged to form part of a “connected set of circumstances”.  And that is subsection (ii) of 293(4)(a).

Neither class of the evidence in this case – either the 2009 disclosure or the evidence of the investigation and prosecution of the Queensland proceedings – can sensibly be regarded as part of a connected set of circumstances with the applicant’s offending within the meaning of subsection (ii).  Clearly, the section requires something more than mere contemporaneity because subsection (ii) imposes a different test to subsection (i).  On this point, in our submission, the applicant’s arguments are completely unconvincing.  They are set out at special leave paragraph 23.

First of all, the applicant says that the Queensland offending was the reason the complainant went to live with him, thus making it connected.  That is not the connection envisaged by the subsection, that is simply evidence of the sequence of events whereby he had the opportunity to commit the offences.  Secondly, the applicant argues that the evidence forms part of a connected set of circumstances because it informs the inherent unlikelihood and riskiness of assaulting the complainant.  That is just a statement of the forensic purpose of the tender.  It is not logically related to the statutory question posed in 293(3). 

The only support to be found in the judgment for the proposition that the disclosure and the charged offence formed part of a connected set of circumstances is found in his Honour Justice Beech‑Jones’ dissent, where he observes that at the time of the disclosure, the complainant was “living with the applicant” – and that is at application book 77 to 78.  Again, this is no more than evidence of opportunity.  It is not the type of connection to which the section is directed. 

In relation to the 293(4)(b) exception, which is the only one that was actually run at trial, your Honours – and your Honours will recall that that is the exception that his Honour Justice Beech‑Jones found the evidence was somewhat lacking in relation to ‑ ‑ ‑

GAGELER CJ:   Does that matter, Ms Dowling, that it was not run at trial?

MS DOWLING:   I am sorry, this one was run at trial – (a) was not run at trial, (b) was run at trial.

GAGELER CJ:   Does it matter?

MS DOWLING:   Only insofar as on an application for a retrial that there would be scope to improve the evidence relied upon by the applicant and renew the application in relation to that exception.  His Honour Justice Beech‑Jones makes that point at application book 75.  Halfway down that first paragraph, his Honour notes that:

On the material before this Court, which only includes a heavily redacted statement of the applicant, it is difficult to determine whether there was such a relationship at the time the disclosure was made –

Then he goes on to refer to the other problem for the ground of appeal.  However, your Honours, in our submission, the better view is that expressed by her Honour Justice Adamson at application book 108, paragraph 121, where her Honour noted that:

disclosure by C to A of offences perpetrated on C by B can be said to “relate to” the relationship between C and A.

Furthermore, your Honours, it is common between the parties, I am sure, that the tailpiece to 293 – that is, that the humiliation and distress of the cross‑examination does not outweigh the probative value of the evidence – that balancing task has not been undertaken by any court.  In paragraph 25 of his Honour Justice Beech‑Jones’ judgment, his Honour notes that:

it was not suggested that it could be undertaken by –

the CCA – although it could:

be undertaken by another trial judge –

So, there is to some degree – there are important factual issues that are yet to be resolved in the application of this section in the event that there was a retrial.  Just on that point, before I leave it, it is pertinent to note there has not been an application for a stay made at any point, and one could in fact still be made if the matter were to go back for a retrial.  Similarly, it is possible to make another application for a revisiting of 293 ruling.

In relation to the issue of misleading the jury, we say that the factual premise for this does not arise.  The complaint, really, is that the applicant did not get the full forensic benefit of unlimited cross‑examination because he did not get to put to her that it was a sexual assault of which she was complaining in Queensland, not a physical assault.  Contrary to Mr Game’s submission in writing, that cross‑examination was not found to be misleading by her Honour Justice Adamson, and the approach of trial counsel when faced with the proper operation of the section was to choose that course because it still enabled the applicant to make the forensic point that he wished to make.

Your Honours will recall that at trial, trial counsel said he did not want to delve into the details of the Queensland offending, contrary to the submission that is now made in this Court that it would be open to him to the complainant that she gained her sexual knowledge from, in fact, the earlier abuse, and that is at the applicant’s submissions at paragraph 30.  So, the applicant’s argument in this Court starts from the wrong proposition, we say, that he is entitled to cross‑examine the complainant about the Queensland offending in full and that anything falling short of that had the capacity to mislead the jury.

We say, furthermore, that a sexual assault is a physical assault, so that it is not misleading to say that she was physically assaulted, and that trial counsel certainly embraced that cause of action at trial.  The fact it had an additional quality of being sexual does not make the descriptor of a physical assault misleading, and it does not make it unfair.

As her Honour Justice Adamson recognised, and your Honours are also, with respect, well aware, it is frequently the case that the jury does not have the whole of the evidence in a trial.  That is done to ensure a fair trial to both the Crown and the accused.  It occurs with great regularity in criminal trials arising from the proper application of sections, such as 135 and 137.  The proper application of section 293 will always remove from the jury evidence that would be otherwise relevant and probative.

Your Honours, in relation to the suggested different test under section 8 of the Criminal Appeal Act, we say that does not properly arise here.  If the evidence was improperly excluded and it resulted in a miscarriage, then the applicant would be entitled to a retrial with that evidence admitted.  If the evidence is properly excluded, then we say there was unlikely to have been a miscarriage of justice that would entitle the applicant to an order under section 8. 

If the conclusion was that it was properly excluded but the trial would be unfair, then an application for a stay could be made, and that is discussed in Jackmain and Veitch.  We say that it is important to recognise the remedial nature of section 293.  It is intended to preclude cross‑examination of this kind of complainants.  The exclusion of evidence, which might be forensically beneficial to an accused, is not an unintended consequence of the legislation, it is what the provision is expressly directed towards.  And it would be surprising, if it were the case, that the proper application of that provision resulted in the conclusion that a trial would be necessarily unfair.

The question posed in the reply as it relates to the test for a permanent stay does not arise because, as we have said, no application for a stay has been made, and it still can be made.  No special leave point arises from the ground.

Thank you, your Honours.

GAGELER CJ:   Thank you, Ms Dowling.  The position to which we have come is that we will make the following orders:

1.The time limited by rule 41.2.1 is dispensed with.

2.Special leave to appeal is granted.

The Court will now adjourn until 11.30 am.

AT 11.03 AM THE MATTER WAS ADJOURNED