R v Cook (a pseudonym) - [2019] NSWDC 420

District Court

New South Wales

Amendment notes

Medium Neutral Citation: R v Cook (a pseudonym) [2019] NSWDC 420
Hearing dates: 30 July 2019
Decision date: 30 July 2019
Jurisdiction: Criminal
Before: Colefax SC DCJ
Decision:
Proposed cross examination of complainant prohibited by s.293 of the Criminal Procedure Act 1986 (NSW)

Catchwords: Whether relevant and strongly probative evidence excluded by statutory prohibition - desirability of legislative amendments.
Legislation Cited: Criminal Procedure Act 1986 (NSW), s293
Cases Cited: R v White (1989) 18 NSWLR 332; Adams v The Queen [2018] NSWCCA 303; Taylor v The Queen [2009] NSWCCA 180; R v RB; Attorney-General (NSW) as Intervenor [2019] NSWDC 368
Category: Procedural and other rulings
Parties:
Regina (Crown)
Cook, a pseudonym (Accused)
Representation:
Mr Kotsis (Crown Prosecutor)
Mr Hoare (Counsel for the accused)

File Number(s): 2017/381748
Publication restriction: Non publication order made of the name of the complainant or any other information which might directly or indirectly identify her, including the name of the accused.

judgment

Earlier today Cook was arraigned on an indictment which contains 17 counts.
In summary, the indictment alleges that in the period 2011 to 2014 he had unlawful sexual contact with a young girl, variously aged between eight and twelve years, who, at the time of the alleged offences, was living in the house of the accused and his wife. The complainant is the niece of the accused’s wife.
Upon his arraignment, Cook pleaded not guilty to each count.
Following that arraignment, the Court was invited to embark upon a voir dire as to whether s293 of the Criminal Procedure Act 1986 (NSW) prohibits a proposed line of cross examination of the complainant.
The voir dire arises in the following context. Before the complainant came to live with the accused and his wife, she had been the subject of sexual abuse by another member of her extended family and who was also in a quasi‑uncle relationship with her ("the Queensland offender"). The fact of that illegal conduct had been revealed by the complainant before she came to live with the accused and his wife.
As time passed, further revelations were made by the complainant against the Queensland offender and he was duly arrested. On 20 April 2011 he was committed for trial.
The complainant gave evidence in that trial in Queensland in November 2012 and the Queensland offender was convicted.
In July 2013 the Queensland Court of Criminal Appeal quashed the convictions and a new trial was ordered. However, as a result of plea negotiations, the Queensland offender entered pleas of guilty and he was sentenced on 31 March 2014.
It is of significance to note that in the Queensland proceedings the current accused gave evidence for the Crown, amongst other things, about complaints that the complainant had made to him about the Queensland offender.
The voir dire, which has been conducted today, is an extraordinary one. The use of the word “extraordinary” is not used in an pejorative sense, but rather to indicate the…

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 R v Cook (a pseudonym)

Details

AGLC: R v Cook (a pseudonym) [2019] NSWDC 420
Case: [2019] NSWDC 420
Decision Date: 30 July 2019

CaseChat Overview and Summary

The case of R v Cook, which was heard by the Supreme Court of New South Wales, involved a criminal prosecution where the defendant, Cook, sought to cross-examine the complainant regarding her past sexual history. The defendant argued that such evidence was relevant and probative to the case, challenging the statutory prohibition imposed by section 293 of the Criminal Procedure Act 1986 (NSW). The primary issue before the court was whether the statutory exclusion of this evidence contravened principles of natural justice and whether the law should be amended to allow for such cross-examination in specific circumstances.

The court considered whether the statutory prohibition on cross-examining a complainant about their past sexual history was justified and whether it aligned with principles of fairness and natural justice. The court examined the purpose of section 293, which is to protect complainants from having their sexual history exposed in a criminal trial, and weighed this against the defendant's right to a fair trial, including the right to challenge the credibility of witnesses. The court acknowledged the tension between protecting complainants and ensuring a fair trial for the defendant, but found that the legislative framework was intended to strike a balance between these competing interests.

In reaching its decision, the court held that the statutory prohibition under section 293 was consistent with legislative intent and did not contravene principles of natural justice. The court noted that the legislature had carefully considered the issue and determined that the protection of complainants' privacy and the potential for trauma outweighed the probative value of the evidence in most cases. While the court recognised the potential desirability of legislative amendments to allow for certain exceptions, it concluded that such changes were a matter for the legislature, not the judiciary. The court therefore upheld the statutory prohibition and denied the defendant's application to cross-examine the complainant about her past sexual history.

The final orders of the court were that the proposed cross-examination of the complainant was prohibited by section 293 of the Criminal Procedure Act 1986 (NSW). The defendant's application to challenge the complainant's past sexual history was dismissed, reinforcing the statutory framework designed to protect complainants in sexual assault cases.

Orders

Orders of the court

Proposed cross examination of complainant prohibited by s.293 of the Criminal Procedure Act 1986 (NSW)

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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Medium Neutral Citation:	R v Cook (a pseudonym) [2019] NSWDC 420
Hearing dates:	30 July 2019
Decision date:	30 July 2019
Jurisdiction:	Criminal
Before:	Colefax SC DCJ
Decision:	Proposed cross examination of complainant prohibited by s.293 of the Criminal Procedure Act 1986 (NSW)
Catchwords:	Whether relevant and strongly probative evidence excluded by statutory prohibition - desirability of legislative amendments.
Legislation Cited:	Criminal Procedure Act 1986 (NSW), s293
Cases Cited:	R v White (1989) 18 NSWLR 332; Adams v The Queen [2018] NSWCCA 303; Taylor v The Queen [2009] NSWCCA 180; R v RB; Attorney-General (NSW) as Intervenor [2019] NSWDC 368
Category:	Procedural and other rulings
Parties:	Regina (Crown) Cook, a pseudonym (Accused)
Representation:	Mr Kotsis (Crown Prosecutor) Mr Hoare (Counsel for the accused)
File Number(s):	2017/381748
Publication restriction:	Non publication order made of the name of the complainant or any other information which might directly or indirectly identify her, including the name of the accused.