Citation: R v Cook (a pseudonym) [2019] NSWDC 420
Court: District Court of New South Wales
Date: 30 July 2019
Judge(s): Colefax SC DCJ
Background
The accused (referred to as "Cook") faced a 17-count indictment alleging unlawful sexual contact with a girl aged between eight and twelve years, said to have occurred between 2011 and 2014 while she lived in his home. The complainant was the niece of the accused's wife, and she was allegedly abused during a period that overlapped with separate sexual assault proceedings in Queensland against another family member.
The complainant had previously reported sexual abuse by that other person, a quasi-uncle figure from Queensland, and had given evidence in his trial there in 2012. The Queensland proceedings concluded with guilty pleas and sentencing in March 2014. The accused himself had given evidence for the Crown in those Queensland proceedings.
Before the trial commenced, the defence sought leave on a voir dire to cross-examine the complainant about the Queensland proceedings and her failure to make any complaint against the accused during that investigation and prosecution.
Legal Issues
- Whether the proposed cross-examination of the complainant fell within the prohibition in s 293(2) and (3) of the Criminal Procedure Act 1986 (NSW)
- Whether any of the exceptions in s 293(4) applied to permit the proposed cross-examination, in particular the exceptions in ss 293(4)(a) and (b)
- Whether the court retained a broad interests-of-justice discretion to admit the evidence notwithstanding the statutory prohibition
Decision
Issue 1: Relevance and probative value of the proposed cross-examination
The Crown conceded the proposed cross-examination was, on its face, relevant. The court went further, finding it would be significantly probative (at [15]). The defence sought to establish that the complainant had ample opportunity to complain about the accused during the Queensland investigation but did not, and that the commission of many of the charged offences during the Queensland proceedings was improbable (at [12]-[13]). The court found that excluding such evidence would lead to an unfair distortion of the facts (at [14]).
Issue 2: Whether s 293 prohibited the cross-examination
Despite its probative value, the court held that s 293(2) and (3) prohibited the proposed cross-examination (at [20]). The court noted that s 293 was enacted to shield complainants from having personal and sensitive matters made public in court proceedings, though it acknowledged the proposed questioning would only indirectly touch on such matters (at [17]-[19]). Critically, the court held it has no broad interests-of-justice discretion on admissibility under s 293 (at [19]).
Issue 3: Application of the exceptions in s 293(4)
The defence expressly disclaimed reliance on s 293(4)(a), and the Crown agreed that exception was not engaged, consistent with the Court of Criminal Appeal's decision in Adams v The Queen (at [21]). The defence relied instead on s 293(4)(b), but the court rejected that argument. Drawing on Taylor v The Queen, the court held that the term "relationship" in s 293(4)(b) does not extend to what passes between a complainant and a person other than the accused (at [22]).
Issue 4: Consequences and call for legislative reform
The court concluded that the complainant could not be cross-examined as extensively as the interests of justice required, and expressed doubt that Parliament had intended this outcome (at [23]). Some cross-examination remained open to the defence, provided the nature of the Queensland proceedings was not disclosed. The court endorsed the observations of Grant DCJ in R v RB about the desirability of Parliament amending s 293 to address these gaps (at [24]).
Orders Made
- The proposed cross-examination of the complainant is prohibited by s 293 of the Criminal Procedure Act 1986 (NSW).
Key Takeaways
- Section 293 of the Criminal Procedure Act 1986 (NSW) contains no broad interests-of-justice discretion allowing a court to admit otherwise prohibited evidence, even where that evidence would be significantly probative to the defence (at [19]-[20]).
- The exception in s 293(4)(b) does not extend to matters concerning the complainant's relationship with a person other than the accused; the term "relationship" in that provision is confined to the complainant's relationship with the accused (at [22]).
- Relevant and strongly probative evidence may nonetheless be excluded by the operation of s 293 where none of the statutory exceptions in s 293(4) are satisfied, even if that exclusion produces a result arguably inconsistent with the interests of justice (at [23]).
- The District Court added its voice to calls for legislative reform of s 293, agreeing with Grant DCJ's observations in R v RB that Parliament should amend the provision to address cases where its application produces unintended consequences (at [24]).
- Some residual cross-examination may remain available to the defence even where s 293 applies, provided any questioning avoids disclosing the nature of the prohibited subject matter (at [23]).
Legislation and Cases Referenced
Legislation
- Criminal Procedure Act 1986 (NSW), s293
Cases
- 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