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Cook (a pseudonym) v The The King

Cook (a pseudonym) v The The King

Case [2022] NSWCCA 282 15 December 2022

Appeal

Jurisdiction

Admissibility of Evidence

Abuse of Process

Criminal Law

Type to search within this case.

Court of Criminal Appeal

Supreme Court

New South Wales

Medium Neutral Citation: Cook (a pseudonym) v R [2022] NSWCCA 282
Hearing dates: 26 August 2022
Decision date: 15 December 2022
Before: Beech-Jones CJ at CL at [1]; Adamson J at [31]; Bellew J at [135]
Decision:
(1) Grant leave pursuant to rule 4.15 of the Supreme Court (Criminal Appeal) Rules 2021 (NSW) to argue ground 1.
(2)   Grant leave to appeal.
(3)   Allow the appeal on the basis of ground 1.
(4)   Quash the applicant’s convictions ordered following the trial before Colefax SC DCJ.
(5)   Order that there be a new trial of the applicant.
(6)   List the matter in the District Court arraignments list on 27 January 2023.

Catchwords:
CRIME — Appeals — Appeal against conviction — jury directions — where jury provided written elements documents containing question trail to be followed — where document not orally explained to jury by trial judge — where such explanation required — error established
CRIME — Appeals — Appeal against conviction — jury directions — where trial judge commented on how verdicts on various counts could be consistent — error established
CRIME — Appeals — Appeal against conviction — whether evidence of disclosure wrongly ruled inadmissible — application of s 293 of the Criminal Procedure Act 1986 (NSW) — no error established

Legislation Cited:
Crimes Act 1900 (NSW), ss 61J, 61M, 66A
Criminal Appeal Act 1912 (NSW), ss 5F, 6, 8
Criminal Procedure Act 1986 (NSW), ss 130A, 293, 294CB
Evidence Act 1995 (NSW), ss 97, 192A
Jury Act 1977 (NSW), s 55B
Supreme Court (Criminal Appeal) Rules 2021 (NSW), r 4.15

Cases Cited:
Adams v R [2018] NSWCCA 303
Bourke (a pseudonym) v R [2021] NSWCCA 145
GEH v R [2012] NSWCCA 150
HG v The Queen (1999) 197 CLR 414; [1999] HCA 2
Jackmain (a pseudonym) v R (2020) 102 NSWLR 847; [2020] NSWCCA 150
Jago v District Court of NSW (1989) 168 CLR 23; [1989] HCA 46
KS v Veitch (No 2) (2012) 84 NSWLR 172; [2012] NSWCCA 266
Liberato v The Queen (1985) 159 CLR 507; [1985] HCA 66
M v R (1993) 67 A Crim R 549
McKell v The Queen (2019) 264 CLR 307; [2019] HCA 5
R v Markuleski (2001) 52 NSWLR 82; [2001] NSWCCA 290
Taylor v R (2009) 78 NSWLR 198; [2009] NSWCCA 180
The Queen v Bauer (2018) 266 CLR 56; [2018] HCA 40
Trevascus v R (2021) 104 NSWLR 571; [2021] NSWCCA 104
Zhou v R [2021] NSWCCA 278

Category: Principal judgment
Parties: Cook (a pseudonym) (Applicant)
Regina (Respondent)
Representation:
Counsel:
T Game SC / R Khalilizadeh / A Faro (Applicant)
G Newton (Respondent)
Solicitors:
Streeton Lawyers (Applicant)
Office of the Director of Public Prosecutions (Respondent)

File Number(s): 2017/381748
Publication restriction: Publication of names and any information or material that may lead to the identification of the applicant or the complainant is prohibited: Crimes Act 1900 (NSW), s 578A; Children (Criminal…

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 The King

Details

AGLC: Cook (a pseudonym) v The The King [2022] NSWCCA 282
Case: [2022] NSWCCA 282
Decision Date: 15 December 2022

CaseChat Overview and Summary

Cook, a pseudonymous defendant, appealed against his conviction in the Supreme Court of New South Wales. The appeal centered on several issues regarding the directions given to the jury by the trial judge, as well as the admissibility of certain evidence. The key points of contention were whether the trial judge correctly provided oral explanations of the written documents to the jury and whether the judge's comments on the consistency of verdicts on various counts constituted an error. Additionally, the appeal challenged the trial judge's decision to exclude certain evidence under section 293 of the Criminal Procedure Act 1986 (NSW).

The legal issues before the court were whether the trial judge erred in not orally explaining the written documents to the jury, whether the judge's comments on the consistency of verdicts constituted an error, and whether the trial judge erred in ruling certain evidence inadmissible. The court was required to determine whether these errors were significant enough to warrant a new trial.

The court found that the trial judge's failure to orally explain the written documents to the jury and the judge's comments on the consistency of verdicts constituted errors. These errors were deemed significant enough to potentially influence the jury's decision-making process. However, the court held that there was no error in the trial judge's decision to exclude certain evidence under section 293 of the Criminal Procedure Act 1986 (NSW). As a result, the appeal was partially successful. The conviction was quashed, and a new trial was ordered due to the errors identified in the jury directions.

Orders