Cookson v The King

Case [2024] VSCA 289

SUPREME COURT OF VICTORIA

COURT OF APPEAL
S EAPCR 2023 0157
RICHARD COOKSON (A PSEUDONYM) Applicant
v
THE KING Respondent

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JUDGES: McLEISH, BOYCE and KAYE JJA
WHERE HELD: Melbourne
DATE OF HEARING: 11 October 2024
DATE OF JUDGMENT: 27 November 2024
MEDIUM NEUTRAL CITATION: [2024] VSCA 289
JUDGMENT APPEALED FROM: DPP v Cookson (a pseudonym) (County Court of Victoria, 15 November 2022 (Conviction), Judge D Sexton)

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CRIMINAL LAW – Appeal – Conviction – Child complainant – Course of conduct charges – Alleged inconsistencies and discrepancies in evidence of complainant and with evidence of others – Whether jury acting rationally must have entertained reasonable doubt about applicant’s guilt – M v The Queen (1994) 181 CLR 487; Pell v The Queen (2020) 268 CLR 123, applied – Measure of inconsistency expected in evidence relating to course of conduct charges covering substantial part of child complainant’s life – Resolution of evidentiary issues within province of jury – Application for leave to appeal refused.

CRIMINAL LAW – Evidence – Incriminating conduct – Applicant punched hole in wall after learning complainant at police station – Complainant likely to be reporting allegations against applicant – Trial judge determined conduct reasonably capable of being viewed by jury as incriminating conduct – Innocent explanation for conduct – Angry response to fact of allegations being reported irrespective of whether truthful – Jury could not dismiss innocent explanation for applicant’s conduct – Trial judge erred – Evidence could have made difference to result of trial – Substantial miscarriage of justice – Appeal allowed.

Jury Directions Act 2015 ss 20, 21, 22.

DPP v Lynn [2024] VSCA 62; R v Ciantar (2006) 16 VR 26; DPP v Scriven [2015] VSC 220, applied.

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Counsel
Applicant: Mr C Wareham with Mr C Tom
Respondent: Mr L McAuliffe

Solicitors
Applicant: Victoria Legal Aid
Respondent: Ms A Hogan, Solicitor for Public Prosecutions

TABLE OF CONTENTS

PART A:. BACKGROUND

Overview of evidence

Suzette’s VARE

Special hearing

Amanda Morrison

Dr Thea Bloom

Abigail Jones

Andrew Venables — School teacher

Jennifer Spry — Foster carer

Linda Christos — Foster mother of Ms Morrison

First Constable Sasha Sztynda

Senior Constable Nicole Jacks

Jaimi Lee — Child Protection

The applicant’s police interview

PART B:. PROPOSED GROUNDS 1–3 — WHETHER JURY’S VERDICT ON CHARGES 1–3 UNSAFE

Submissions

Inconsistencies in Suzette’s VARE

Inconsistencies between Suzette’s VARE and special hearing

Inconsistencies between Suzette’s evidence and what she told other witnesses in the trial

Ms Morrison’s evidence

Alleged lie told by Suzette

Test to be applied

Consideration

PART C:. PROPOSED GROUND 4 — WHETHER EVIDENCE OF INCRIMINATING CONDUCT ADMISSIBLE

Background

Legal principles

Judge’s ruling and direction to the jury

Submissions

Consideration

PART D:. CONCLUSION

MCLEISH JA
BOYCE JA
KAYE JA:

  1. On 15 November 2022, following a trial by jury, the applicant was found guilty of three charges of sexual penetration of a child or lineal descendant[1] and one charge of common assault.

    [1]Section 50C(1) of the Crimes Act 1958 as amended by the Crimes Amendment…

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AGLC
Cookson v The King [2024] VSCA 289
Case
[2024] VSCA 289
Decision Date

CaseChat Overview and Summary

The applicant in this matter, Cookson, appeals against his conviction for charges related to a course of conduct involving a child complainant. The Supreme Court of Victoria heard the appeal, focusing on the trial judge's handling of the incriminating conduct evidence and the sufficiency of the evidence to prove guilt beyond reasonable doubt. The appeal hinges on whether the trial judge erred in his direction to the jury regarding the incriminating conduct evidence and whether this error led to a substantial miscarriage of justice.

The central legal issues before the court were whether the trial judge correctly applied the provisions of the Jury Directions Act 2015 in directing the jury regarding the incriminating conduct evidence and whether the error in the direction led to a substantial miscarriage of justice. Specifically, the court examined whether the trial judge's direction allowed the jury to consider the innocent explanation for the applicant's conduct and whether the error in the direction could have affected the trial's outcome. The court also considered the measure of inconsistency expected in evidence relating to course of conduct charges covering a substantial part of the child complainant's life.

The Court found that the trial judge erred by not directing the jury that the applicant's conduct could have had an innocent explanation. The mandatory direction under section 21 of the Jury Directions Act required the trial judge to ensure the jury could only treat the conduct as incriminating if it concluded that the only reasonable explanation of the conduct was that the applicant believed he had committed the offence. However, the trial judge failed to direct the jury that the applicant's conduct could have had an innocent explanation, which the jury could not dismiss. This omission meant that the jury could not properly weigh the innocent explanation against the incriminating nature of the conduct. The Court concluded that this error was a substantial miscarriage of justice because it could have affected the outcome of the trial. Therefore, the appeal was allowed.

In light of the above, the Court ordered that the conviction be quashed and a re-trial be held. The Court emphasised the importance of correctly directing the jury on the use of incriminating conduct evidence to ensure a fair trial and protect the accused's right to a proper consideration of all evidence, including innocent explanations.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

The Jury Directions Act provides for two directions. The direction in s 21 is mandatory, while that in s 22 may be given if defence counsel requests it (as happened in the present case).[35] Those sections relevantly provide:[35]Section 14 requires the judge to give the direction, if requested, unless there are good reasons for not doing so. Section 16 also requires the judge to give a direction if the judge considers that there are substantial and compelling reasons for doing so, even though defence counsel has not requested the direction.21 Mandatory direction on use of evidence of incriminating conduct(1)If the prosecution relies on evidence of conduct as evidence of incriminating conduct, the trial judge must direct the jury that—(a)the jury may treat the evidence as evidence that the accused believed that he or she had committed the offence charged or an element of the offence charged, or that he or she had negated a defence to the offence charged, only if it concludes that—(i)the conduct occurred; and(ii)the only reasonable explanation of the conduct is that the accused held that belief; and(b)even if the jury concludes that the accused believed that he or she had committed the offence charged, it must still decide, on the basis of the evidence as a whole, whether the prosecution has proved the guilt of the accused beyond reasonable doubt.(2)In giving a direction under this section, a trial judge need not refer to each act or omission of the accused.…22 Additional direction on incriminating conductIf the trial judge gives, or proposes to give, a direction under section 21, defence counsel may request under section 12 that the trial judge also direct the jury that—(a)there are all sorts of reasons why a person might behave in a way that makes the person look guilty; and(b)the accused may have engaged in the conduct even though the accused is not guilty of the offence charged; and(c)even if the jury thinks that the conduct makes the accused look guilty, that does not necessarily mean that the accused is guilty.… The operation of these provisions was recently explained by this Court as follows:It is clear from the statutory provisions that the decision of a trial judge pursuant to s 20(1)(b) does not concern the admissibility of evidence but rather the manner in which evidence may be used. That is, the judge must determine whether the evidence is reasonably capable of being viewed by the jury as evidence of an implied admission by the accused of having committed an offence charged, an element of an offence charged or negating a defence to an offence charged. That determination must be based on the whole of the evidence. It involves no determination of whether the jury would so view the evidence, only whether the jury could do so. In accordance with the mandatory s 21(1)(a) direction, the jury must be directed that the evidence of conduct may only be treated as evidence of incriminating conduct if the jury concludes that the only reasonable explanation of the conduct is that the accused believed that s/he committed an offence or an element of an offence charged or negated a defence to an offence charged.…Hence s 20(1)(b) means that the trial judge must make a determination, based on the whole of the evidence, that the conduct evidence was such that the jury could rationally conclude that the only reasonable explanation for it was that the accused held the belief that he or she committed the offence charged. ...[36][36]DPP v Lynn [2024] VSCA 62 [114], [126] (citations omitted) (Emerton P, Taylor and T Forrest JJA) (emphasis in original) (‘Lynn’).

Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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