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Court of Criminal Appeal 15 December 2022

Cook (a pseudonym) v R

[2022] NSWCCA 282

Sexual offences

Citation: Cook (a pseudonym) v R [2022] NSWCCA 282
Court: NSW Court of Criminal Appeal
Date: 15 December 2022
Judge(s): Beech-Jones CJ at CL; Adamson J; Bellew J

Background

The applicant was convicted by a jury on 17 counts of sexual offences against a child under the Crimes Act 1900 (NSW). The alleged offending occurred between 2011 and 2014. A separate issue arose before trial concerning evidence that the complainant had previously disclosed sexual abuse by another family member in Queensland, which had occurred roughly 18 months earlier. The trial judge ruled that evidence inadmissible.

During the summing up, the trial judge distributed a written document called a "Jury Question Trail" and directed the jury to take it to the jury room and work through it, without reading or explaining it aloud in court. The judge also commented, when directing the jury on returning verdicts for each of the 17 counts, that he had difficulty seeing how the jury could return different verdicts across the counts and that he would have thought the verdicts would need to be "17 one way or 17 the other."

The applicant sought leave to appeal against his convictions on three grounds: erroneous jury directions on the elements of the offences; erroneous directions about how to approach the 17 separate counts; and error in excluding evidence of the complainant's disclosures about the Queensland offences.

  • Whether sending jurors to the jury room with a written "Jury Question Trail" document, without reading or explaining it in open court, was a sufficient direction on the elements of the offences.
  • Whether the trial judge's comments suggesting verdicts across all 17 counts should be consistent constituted an error in directing the jury.
  • Whether the trial judge erred in excluding evidence of the complainant's disclosures about prior sexual abuse by another person, under s 293 of the Criminal Procedure Act 1986 (NSW).

Decision

Ground 1: The written question trail (unanimous)

All three judges agreed that sending jurors to the jury room with the Jury Question Trail, without reading and explaining the document in open court, was insufficient to fulfil the trial judge's obligation to direct the jury on the elements of the offences. The Court identified both practical and procedural reasons for that requirement, including that it allows the judge and counsel to observe the jury during the process. The Crown conceded this error, and the Court granted leave to argue the ground despite the absence of an objection at trial, on the basis that directing a jury is so fundamental a function that the failure went beyond a mere irregularity.

Ground 2: Comments on consistency of verdicts (unanimous)

Although the Court's conclusion on ground 1 made it strictly unnecessary to address ground 2, the judges commented on it to provide guidance to trial judges. The trial judge's remarks, suggesting that he could not see how the jury could return different verdicts across the 17 counts and implying an "all or nothing" outcome, constituted error. The question of what verdict to return on each individual count is entirely a matter for the jury, and a trial judge should not express a view about how verdicts across multiple counts could or should be consistent.

Ground 3: Exclusion of evidence under s 293 (divided)

The majority (Adamson and Bellew JJ) held that the trial judge was correct to exclude the evidence, even though his reasoning was flawed. The exclusion was upheld on two bases: the Queensland offences occurred approximately 18 months before the alleged offending by the applicant, which meant the evidence did not satisfy the temporal requirement of s 293(4)(a)(i) (events occurring "at or about the time" of the alleged offences); and the complainant's disclosures did not relate to a relationship between the complainant and the applicant, as required by s 293(4)(a)(ii). Beech-Jones CJ at CL dissented, taking the view that the trial judge had misconceived the argument put by defence counsel, that the disclosures themselves constituted the relevant "sexual experience" for the purposes of s 293, and that insufficient factual findings had been made to resolve the application properly.

Orders Made

The majority orders (proposed by Adamson J, with Bellew J agreeing) were:

  • Leave granted to argue ground 1 of the notice of appeal.
  • Leave to appeal granted.
  • Appeal allowed on ground 1.
  • Applicant's convictions quashed.
  • New trial ordered.
  • Matter listed in the District Court arraignments list on 27 January 2023.

Beech-Jones CJ at CL proposed substantially the same outcome but would also have allowed the appeal on ground 3 and granted leave to raise it, quashing the convictions and ordering a new trial on that additional basis.

Key Takeaways

  • A trial judge's obligation to direct the jury on the elements of an offence requires that any written question trail or elements document be read and explained aloud in open court. Distributing a document and sending jurors away to work through it, without oral explanation, does not satisfy that obligation.
  • Where a multi-count indictment is before the jury, a trial judge must not express a view, even tentatively or in personal terms, that verdicts across all counts should be consistent. Each count is a discrete question for the jury alone.
  • Under s 293(4)(a)(i) of the Criminal Procedure Act 1986 (NSW), evidence of a complainant's prior sexual experience must relate to events occurring "at or about the time" of the alleged offences. The majority confirmed that a gap of approximately 18 months between two episodes of alleged abuse does not satisfy that temporal requirement.
  • Failure to object to a jury direction at trial does not automatically bar an appellate ground where the direction concerns such a fundamental aspect of trial procedure. The Court of Criminal Appeal granted leave in those circumstances.
  • A split emerged among the judges on the correct approach to s 293(4): the majority focused on the temporal gap and absence of a direct relationship between the parties; Beech-Jones CJ at CL would have characterised the relevant "experience" as the complainant's disclosures themselves, potentially bringing them within the provision's scope.

Legislation and Cases Referenced

Legislation:
- 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:
- Trevascus v R (2021) 104 NSWLR 571; [2021] NSWCCA 104
- McKell v The Queen (2019) 264 CLR 307; [2019] HCA 5
- GEH v R [2012] NSWCCA 150
- Adams v R [2018] NSWCCA 303
- Jackmain (a pseudonym) v R (2020) 102 NSWLR 847; [2020] NSWCCA 150
- Liberato v The Queen (1985) 159 CLR 507; [1985] HCA 66
- The Queen v Bauer (2018) 266 CLR 56; [2018] HCA 40
- R v Markuleski (2001) 52 NSWLR 82; [2001] NSWCCA 290
- Taylor v R (2009) 78 NSWLR 198; [2009] NSWCCA 180
- KS v Veitch (No 2) (2012) 84 NSWLR 172; [2012] NSWCCA 266
- Jago v District Court of NSW (1989) 168 CLR 23; [1989] HCA 46