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 

1. Earlier today Cook was arraigned on an indictment which contains 17 counts. 

2. 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.

3. Upon his arraignment, Cook pleaded not guilty to each count.     

4. 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.

5. 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.

6. 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. 

7. The complainant gave evidence in that trial in Queensland in November 2012 and the Queensland offender was convicted. 

8. 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. 

9. 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.

10. 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 unusual nature of the application. 

11. What counsel for the accused seeks leave to do is to cross-examine the complainant about the fact of the reporting of the previous sexual assaults in Queensland and the fact of the Queensland proceedings - not to descend into any fine detail of the sexual offending itself. 

12. The basis of the cross‑examination is to seek to establish that the complainant had more than ample opportunity to make complaint about this accused in the ongoing investigation and prosecution of the Queensland offender, but did not.

13. Furthermore, the anticipated cross-examination would seek to raise the improbability of this accused committing the offences with which he has been charged, given that very many of them are said to have occurred in or around the time of the Queensland proceedings.  

14. At face value the intended cross-examination would be of significance to the defence case, subject to a matter to which I shall return.  To exclude that evidence would lead to an unfair distortion of the facts. The anticipated evidence would directly bear on the objective likelihood of the offences having been committed.

15. The Crown concedes, properly, that, prima facie, for the reasons advanced in voir dire exhibit 2, the proposed cross-examination would be relevant.  I would go further and say it would be significantly probative.

16. The proposed cross-examination, however, is confronted by the difficulties created by s 293 of the Criminal Procedure Act 1986 (NSW). 

17. Section 293 was introduced to limit the circumstances in which complainants in sexual assault cases will have to endure having what might otherwise be personal and sensitive matters made public knowledge by virtue of evidence given in court: see R v White (1989) 18 NSWLR 332 at 340. Parliament has enacted that section for that purpose.

18. The proposed cross-examination, however, would not have given rise to this complainant having “to endure what might otherwise be personal and sensitive matters made public knowledge by virtue of evidence given in court”.

19. The proposed cross-examination would only have indirectly referred to such matters. But the Court is not given a broad discretion based on the interests of justice on this question of admissibility. 

20. Section 293 does not permit the foreshadowed cross-examination taking place because of the prohibition in subs (2) and (3). The evidence sought to be adduced by the cross-examination can only be advanced if it can be brought within one of the exceptions contained in subs (4).

21. Counsel for the accused has expressly disavowed relying upon subs (4)(a).  The Crown Prosecutor joins with him in submitting that that subsection is not engaged.  Both experienced advocates in part at least rely on the decision in Adams v The Queen [2018] NSWCCA 303.

22. Rather, the subsection that counsel for the accused relied upon was subs (4)(b).  The Crown Prosecutor has contended that that section is not engaged.  Attention was directed to Taylor v The Queen [2009] NSWCCA 180 in which consideration was given to the meaning of the term “relationship”. Reference to the dicta in that judgment supports the proposition contended for by the Crown Prosecutor. The nature of the expression “relationship” in that subsection is not captured by what passes between the complainant and another person other than the accused.

23. In the result, therefore, the complainant cannot be cross-examined as extensively as, in my view, the interests of justice require. Parliament has spoken and has deliberately not given the Court any wide discretion.  I cannot help but think, however, that Parliament did not intend the result which has occurred in this case. This, of course, does not mean that the counsel for the accused cannot modify his proposed cross-examination so as to delete the context in which the Queensland proceedings occurred.  Some of his proposed cross-examination will necessarily have to fall by the wayside but there is still scope for cross‑examination of the complainant, provided the nature of the proceedings is not disclosed.

24. Between the time that this ex tempore judgment was delivered and revised, I have read what Grant DCJ said in R v RB; Attorney-General (NSW) as Intervenor [2019] NSWDC 368. I respectfully agree with his Honour's comments at [155] to [161] about the desirability of Parliament amending s.293 in the manner indicated by his Honour.

Amendments

22 August 2019 - [22] after "... another person" the following added "other than the accused."

Decision last updated: 22 August 2019